Wednesday, 18 May 2022
Sick Leave Bill 2022: Report and Final Stages
I move amendment No. 2:
In page 5, to delete lines 23 to 25.
We welcome that we are here tonight to introduce a right to statutory sick leave, which is positive. It is a shame that it took a global pandemic to get Fine Gael and Fianna Fáil there, but here we are. This amendment aims to make sick leave a real and substantial reality for workers from the word go, as opposed to the Government's proposal. The Government's proposal is to start with three days and then, subject to the whims of the Minister, we may go up to ten days. I support the amendments that propose to start from ten days. That would be a significant improvement. Our amendment goes even further by saying that the reason we are here is the broad acceptance for the need for sick pay. This is about workers' rights and about society at large. It is not good for anybody to have workers who are sick going into work or feeling compelled to go into work. That is bad for everybody involved and for society at large. Workers should, therefore, be entitled to a number of sick days they are sick. It should be the bottom line in legislation that is actually focused on workers' rights as opposed to a very meagre nod to the right of workers to sick days that is extremely circumscribed by the current proposal. These are the essential elements of the amendment.
I will speak to my amendments. We debated this over and back with the Minister of State, Deputy English, on Committee Stage. He said that he would go back and reflect on some of the measures. This element of the Bill is a non-starter for us. We introduced our own sick pay legislation through Private Member's business two years ago. As Deputy Murphy quite rightly said, the pandemic now appears to be mostly over, yet we are still in a situation where we have not legislated for it. As we constantly said in the committee room, in every other EU country that has statutory sick pay, most have free GP care. It is imbalanced to talk purely about sick pay when other elements within society do not stand up in the context of the worker. It was also instructive to me, and I believe to other members of the committee, how much the weight of conversation in the committee room was about the employer, the employer, the employer. That is understandable but we really want to talk about the worker who is sick and who, therefore, feels that he or she has to go to work even when sick. Let us imagine being in that position where you really feel it is going to hurt you so badly in their pocket that you must pretend to be well to go to work. On that basis, we strongly feel that the Minister's intention to go from three to ten days over an ill-defined period is not strong enough. We want to start at ten days with the ambition to go to 30 days, which would be in keeping with a modern, decent republic. This is why we feel so strongly about it. I withdrew my amendments on Committee Stage, as did other colleagues, in order to resubmit them on Report Stage. I intend to press amendment No. 3 to a vote.
I thank Deputies for their contributions. I have been very clear on the medium-term plan, which is to make sure that employers know what their obligations will be and that employees know what their rights are. The statutory entitlement to sick pay will be phased in as part of a four-year plan. The initial entitlement would be to three paid sick leave days per year once the Bill is enacted and commenced. This will, effectively, fill the gap in coverage caused by the illness benefit waiting days. Closing the gap of current waiting days before being able to access illness benefit will help to reduce the number of sick employees presenting for work. It is important to point out that illness benefit kicks in on day four and runs up to one year and, in some cases, for two years.
It is not the case that people will have no income. That said, illness benefit in Ireland is very low and that is something we need to examine in the context of the budget and the social welfare Bill.
The four-year plan takes account of the current economic climate and existing financial pressures on businesses. The number of days will increase incrementally, with the goal being that the employer will eventually cover the cost of ten sick days per year from the fourth year of operation, after which illness benefit continues to kick in.
We fully understand that many businesses, particularly SMEs and especially those along the Border, are struggling at the moment with additional costs, often linked to the Russian invasion of Ukraine or the aftermath of Covid-19 and Brexit. This includes higher energy costs, higher input costs, wage increases and costs imposed by the Government such as auto-enrolment and the additional public holiday. It is in recognition of this that we have chosen to phase this in gradually.
Amendment No. 17 would provide that the number of paid sick leave days cannot be reduced by below ten by any ministerial order. As statutory sick leave will be introduced at three days per year, this amendment would not align with the timeline of the scheme.
Amendment No. 18 would provide that there is no restriction on how many days statutory sick leave could increase by in any given year. Section 5 currently stipulates that the Minister may not increase the number of sick days by more than three in any 12-month period. This provides certainty to employers by ensuring that unexpectedly large increases in the number of sick leave days they have paid for will not be introduced. This is a sensible approach that will allow small businesses to plan ahead and anticipate these additional costs.
Providing the Minister with the ability to increase the number of sick leave days by as many as ten in one year, as amendment No. 19 would allow, would be disproportionate. Such a dramatic increase in coverage in one year could have unintended negative consequences. It could force employers to lay off staff, make people redundant, reduce their hours or even reduce their pay. That would not be a desirable outcome.
The Tánaiste's arguments in favour of sick pay and why it is good are all arguments for allowing workers to have sick pay for the days they are sick. That is the bottom line. They are also arguments in favour of amendment No. 18 which proposes to decrease the limits on the actual number of days. If we were lucky enough to have a left Government - hopefully one with an eco-socialist programme - it could then decide not to take the snail-pace approach of the Government of Fianna Fáil and Fine Gael but instead rapidly decide to move to at least ten days at the very limit.
We compare Ireland with some of our European colleagues. In Austria, workers are entitled to between ten and 16 weeks - not days - of paid sick leave on 100% pay. In the Netherlands, workers are entitled to up to 70% of their wages for up to two years. We are well behind Europe as a whole and even more behind the leaders in Europe in terms of basic issues in the sense that it is a workers' rights issue but also a public health issue. Again, while is welcome that we will have sick pay, it is a real shame that the Government is rejecting these amendments and taking such a minimalist, snail-pace approach to the introduction of sick leave.
I will repeat what we said on Committee Stage. Whenever an improvement to the lot of the worker is proposed, the Government always seems to speak of Armageddon and about how difficult it will be for employers and how businesses will fold, etc. Whenever we propose issues such as a basic rate of pay, a living wage or anything in this area we are always told it will place an unreasonable burden on employers, whereas in every other modern European country it is a basic provision.
I restate to the Tánaiste that there are basic provisions even on this island. People in the North of the country have free GP care, something that we have not managed to organise for ourselves in the Republic. That is why this is lopsided. We cannot always think solely, as appears to be the contention of the Tánaiste's party and Government, about the burden on the employer. He cited the war in Ukraine and Border issues with Brexit. The sick worker who has to go to work on the basis of having a low-paid job must be at the forefront of everybody's mind. We are living in a country in which 23% of workers are on low pay. That is what has been driving our attempts to rectify the matter. As has been said, it is to the credit of the Government that it is attempting to rectify this issue but this does not go far enough to protect workers who should not feel they should have to go to work when they are unwell in order to feed their children. That is, unfortunately, the scenario.
Like many others, the Tánaiste included, I welcome the introduction of a statutory sick pay scheme. As I stated in committee, however, there is an issue of discernment here in terms of the scale and size of the employers. What some of the amendments are speaking to, in seeking ten days of immediate sick leave, is wholly inappropriate for microenterprises. That needs to be said first and foremost.
The second issue for small businesses is that they have a small number of staff. In the case of an employer who loses one staff member to sickness for a day - let us say it is a delivery company that needs a delivery driver - how is the business supposed to carry on operating that day without bringing in an additional person to substitute? The employer needs a substitute and will have to pay for him or her. If the business gets that substitute at short notice, the employer will pay pretty handsomely for the day's service to cover that sickness. There is no support in this scheme for microenterprises in that scenario. We all understand that if one person is out on the statutory sick pay scheme in a company that employs a couple of hundred people, the company can cover that person. As we know, most companies already have that in place.
When the Minister of State, Deputy English, appeared before the committee, he gave an undertaking of sorts that this matter would be looked at and an amendment to that effect would, potentially, be tabled. That is what I am asking for. I think we all agree that a sick pay scheme is right. We all agree that we want to bring ourselves up to European norms, although I point out the headwinds facing businesses in this country are not the same as they are in Europe. They are similar but not the same. The headwinds for small businesses and microenterprises in this country make it very difficult for them to create margins and remain viable and profitable. People might say the Bill provides that sick pay will be only 70% of pay and will be capped at €110, etc. However, if a small business such as a newsagent is paying sick pay and for the substitution of a worker, that is not small money. If that is to be done for a number of employees, as we move from three to five and then to seven and ten days, that will become a pretty onerous cost. I ask the Tánaiste to provide for a review of the scheme after the first six or 12 months to see how it is impacting on small- and medium-sized enterprises. A number of the amendments, particularly those providing for ten days of sick pay immediately, are totally unacceptable to small employers. By the way, people might say private employers are making out like bandits; they certainly are not.
Second, it is becoming even more difficult to start a viable business in this country. I was with the Waterford local enterprise office, LEO, the other day and we were looking at new applications to the office. It is very difficult. Many businesses, unfortunately, will probably not be viable over the long term. People have great ideas but when they try to put them into practice and make a commercial business out of them, it is extremely difficult. People need to remember that the SME community employs close to 1 million people here. If we do not look after these businesses, there will be no employment and we will not have to worry about sick days because there will be no employers to pay for them.
I welcome the Bill but some of the amendments are wholly inappropriate. I ask the Tánaiste to take cognisance of the SME community, microenterprises in particular, and put a review process in place to see how the scheme is operating after six months.
I think we are in danger of losing our way on this a little. Sick pay is a very important instrument of public health. For employers who may struggle to pay even the modest amount of sick leave provided for in the Bill, which will increase further as time goes on, there is a benefit to them that I do not believe we are considering. When a sick person comes into the workplace and makes other people in the workplace sick, it creates a bigger problem. We should come at this from the perspective that it a necessary public health intervention.
I join previous speakers in saying fair play to the Tánaiste for bringing this legislation forward. We may have an issue with some of its elements but the facts that it is before the House and we are having this debate are very much to the Tánaiste's credit. I am not saying the money is not important - of course it is - but the cost of not doing this could be multiples of the money that will be spent on it.
The argument I am making, which I often make, is one in favour of incremental progress. I appreciate that for many people progress is too slow, but I have a responsibility as Minister to listen to all sides of the argument and to look at it from the point of view of employers as well as that of employees. In my view, the most important workers' right is the right to work, and I want to raise the bar continually to improve pay, terms and conditions and workers' rights, but not to the extent that businesses will become unviable. Business owners, in particular small employers, not least around the Border area and in small towns, tell me a lot is coming at them at the moment, such as higher labour costs, input costs, energy costs and insurance costs, which I am working on, as well as higher costs the Government is putting on them. Those costs include ones arising from the additional public holiday, for which I signed the order and which I stand over, and from auto-enrolment, which I kick-started as Minister for Social Protection and stand over also. These are all additional costs for employers and I do not want to end up, with every good intention, putting workers in a bad position whereby their employer will be forced to lay them off, reduce their hours or even reduce their pay, because that would be counterproductive.
Comparisons that are being made with other European countries are a little misleading because they do not take into account illness benefit. Many countries have an integrated system of sick pay and illness benefit. What will happen with the Bill, when this new right comes into place, is that for the first three days, sick pay will be provided by the employer, after which illness benefit will kick in for up to two years. It is not the case it is only three, five or ten days, given illness benefit will kick in.
Moreover, it needs to borne in mind that where there is better provision for sick pay, as is the case in many European countries, it is based on a very different social insurance system, whereby the average social insurance contribution for employers is 20% rather than 10%, and whereby low-paid workers pay a lot more in income tax and social insurance. In several of the Nordic countries, low-paid and minimum wage workers pay five, ten or 13 times as much income tax as they do here, and I do not think it is a very honest argument to say low-paid and minimum wage workers should have the same social insurance benefits as people in Nordic countries but should not have to pay the kinds of high taxes they would pay in a Nordic country.
I move amendment No. 3:
In page 5, to delete lines 23 to 25 and substitute the following: “(2) An employee shall be entitled to up to and including 10 statutory sick leave days in a year, or such additional number of statutory sick leave days (if any) up to 30, as may stand specified from time to time by order of the Minister under section 6.”.
Chris Andrews, Ivana Bacik, Mick Barry, Martin Browne, Pat Buckley, Holly Cairns, Matt Carthy, Sorca Clarke, Joan Collins, Michael Collins, Rose Conway-Walsh, Réada Cronin, Seán Crowe, David Cullinane, Pa Daly, Pearse Doherty, Paul Donnelly, Dessie Ellis, Mairead Farrell, Kathleen Funchion, Gary Gannon, Thomas Gould, Johnny Guirke, Marian Harkin, Danny Healy-Rae, Michael Healy-Rae, Martin Kenny, Claire Kerrane, Pádraig Mac Lochlainn, Mary Lou McDonald, Mattie McGrath, Denise Mitchell, Imelda Munster, Catherine Murphy, Paul Murphy, Gerald Nash, Carol Nolan, Cian O'Callaghan, Richard O'Donoghue, Louise O'Reilly, Darren O'Rourke, Eoin Ó Broin, Donnchadh Ó Laoghaire, Ruairi Ó Murchú, Aodhán Ó Ríordáin, Aengus Ó Snodaigh, Thomas Pringle, Maurice Quinlivan, Patricia Ryan, Seán Sherlock, Róisín Shortall, Duncan Smith, Brian Stanley, Peadar Tóibín, Mark Ward, Jennifer Whitmore.
Cathal Berry, Richard Bruton, Colm Burke, Peter Burke, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Seán Canney, Ciarán Cannon, Joe Carey, Jennifer Carroll MacNeill, Jack Chambers, Niall Collins, Patrick Costello, Simon Coveney, Barry Cowen, Michael Creed, Cathal Crowe, Cormac Devlin, Alan Dillon, Stephen Donnelly, Francis Noel Duffy, Bernard Durkan, Damien English, Frank Feighan, Peter Fitzpatrick, Joe Flaherty, Seán Fleming, Norma Foley, Brendan Griffin, Simon Harris, Seán Haughey, Martin Heydon, Emer Higgins, Neasa Hourigan, Heather Humphreys, Paul Kehoe, John Lahart, James Lawless, Brian Leddin, Michael Lowry, Josepha Madigan, Micheál Martin, Steven Matthews, Paul McAuliffe, Charlie McConalogue, Helen McEntee, Michael McGrath, Joe McHugh, Aindrias Moynihan, Michael Moynihan, Jennifer Murnane O'Connor, Verona Murphy, Denis Naughten, Malcolm Noonan, Darragh O'Brien, Joe O'Brien, Jim O'Callaghan, James O'Connor, Willie O'Dea, Kieran O'Donnell, Patrick O'Donovan, Fergus O'Dowd, Roderic O'Gorman, Christopher O'Sullivan, Pádraig O'Sullivan, Marc Ó Cathasaigh, Éamon Ó Cuív, Anne Rabbitte, Michael Ring, Eamon Ryan, Matt Shanahan, Brendan Smith, Niamh Smyth, Ossian Smyth, David Stanton, Leo Varadkar.
I move amendment No. 4:
In page 5, to delete lines 30 to 35.
This amendment proposes to delete the requirement for an employee to have 13 weeks of continuous employment before being entitled to sick pay. This was one of the most problematic aspects of the Bill, as drafted. There is a Government amendment in this regard, which I will come to presently.
I thank Deputy Ó Ríordáin and the Leas-Cheann Comhairle. The issue here is that a very gross discrimination was created by the Government's proposal, whereby an employee whose service was interrupted would go back to zero, lose his or her rights to sick pay and have to work up the 13 weeks again. This meant that the Bill, as drafted, excluded many of the most vulnerable workers the Government claims to be trying to protect. Those who are under the most pressure to go to work even if they are sick were left in a situation where they would be excluded from this protection. The Irish Congress of Trade Unions, ICTU, pointed out the impact this would have on women and migrant workers in particular. Its general secretary, Patricia King, wrote to the Tánaiste pointing out that the existing provision would "leave hundreds of thousands of mostly women and foreign-born essential workers employed in low-pay jobs, who routinely have their service broken by their employer, without coverage for 3 months each year". A good case study in this regard is the position of childcare workers, 98% of whom are female, being let go over the summer holidays and rehired in September, who would, therefore, be without the entitlement to sick pay for the first 13 weeks after their return.
The Government's amendment No. 7 goes some way to addressing this issue, but it does not go all the way. My reading of the amendment is that it will deal with the previous period of employment, that is, the period of employment before the current one in which the need for sick pay arises. However, my understanding - the Tánaiste will correct me if I am wrong - is that it would not include any period before that. If, say, an employee has done ten weeks previously and comes back within the 26-week period and does another three weeks, then, if amendment No. 7 is passed, he or she would be entitled to sick pay. That is a step forward. However, it is my understanding that where an employee has worked for three weeks in the current period and five weeks in the period before that, for example, and there was a previous break at that point, before which the employee had worked another five weeks, then this total of 13 weeks would not be taken into account. The Government amendment would deal with the situation of the hypothetical childcare worker because that involves a big block of work, followed by a break, followed by another big block of work. However, there are other workers who have their service broken continually and who might be accumulating the 13 weeks of service in smaller blocks. As far as I can tell, amendment No. 7 would not deal with that situation.
Setting aside the position of contract workers, people's service being broken and so on, there is a basic public health need for sick pay and the right to it should apply from day one, regardless. That is a basic point that the Government's amendment certainly does not address. I am interested in the Tánaiste's response to that point and to my question as to whether past periods of service prior to the immediately previous period would be included as counting towards service for sick pay purposes.
My amendment No. 5 is similar to amendment No. 4. I appreciate that the Government's amendment No. 7 is an effort to address our concerns on this issue, which the Tánaiste indicated previously that he would consider. What he has proposed is an advance and it certainly is welcome. It captures the situation of childcare workers, who adhere to a fixed pattern of work that includes a break of a couple of months every year. Despite what people might like to think about me, I am not suggesting that this is an issue with all employers. I understand the need for employers. However, some of them use the tactic of taking people on, letting them go, taking them on again and so forth. They do it to keep workers on their toes and ensure they feel vulnerable etc.
If we are to deal with those rogue employers, if we want to call them that, I am not sure whether amendment No. 7 does enough. I am sure the intention is that they would be captured but I am not just not sure the amendment achieves that. As an Teachta Paul Murphy said, I would welcome clarification from the Tánaiste in terms of how service can be accumulated over a number of years where there is more than one break in service. Given the nature of seasonal work and the situation of vulnerable workers, who might be working on contract rather than being directly employed and may be laid off for a week and then taken back, the service requirement is difficult. I am not hostile to there being some service requirement but what we learned during the pandemic is that the people who are the most vulnerable are those who are the lowest paid. If we do not get this right, they are the ones who are least likely to benefit from this protection. I fully appreciate this is not the Tánaiste's intention, but it is important to allow people to accumulate the service and to make it very clear how they can do so.
I understand there was consultation recently by the Department of Social Protection on developing an app that would give information on how people can accumulate entitlements. I wonder whether something similar might be developed to deal with the accumulation of the entitlement to sick leave over a number of years. Is that what is intended by amendment No. 7? ICTU was very clear that the people who will be most impacted by the requirement for continuous service are foreign-born workers, women and vulnerable workers who may have difficulty accessing their rights and entitlements at work. These are the workers who probably are least likely to be trade union members but who would be most likely to benefit from such membership. I ask the Tánaiste to take us through amendment No. 7, how it will work and whether it will address our concerns.
On Committee Stage, the Minister of State, Deputy English, signalled our intention to move an amendment on Report Stage to address the issues raised by the Deputies. The purpose of the amendment is to eliminate uncertainty as to the entitlement of certain workers to sick leave. Section 5 is linked to the Minimum Notice and Terms of Employment Act 1973. This means that an employee will not have to qualify again for sick leave merely because they are regularly laid off, for instance, over the summer period. We are well aware that this would be a significant issue in some sectors, particularly for workers in crèche and childcare settings, many of whom work on a term-time pattern. Where an employee is laid off, that does not constitute a break in service. His or her service is continuous for the purpose of the Bill.
This issue was discussed extensively on both Second and Committee Stages and also with the unions and employers. Deputies rightly identified the risk that certain workers would have to requalify for statutory sick leave on a regular basis if they work on term-time-type contracts and there is a break between contracts as distinct from a routine lay-off. Amendment No. 4 would delete subsections (5) and (6) and would appear to confer an entitlement to sick leave from the beginning of an employment. We think it is reasonable that an employee should have worked for an employer for some time in order to qualify for paid sick leave and to have established an employee-employer relationship. For example, if an employer takes somebody on to work in a shop or restaurant for a few weeks in the summer, it would not be fair if that employee took ten days' sick leave at the start and only worked for a week or two after that. In the case of parental leave, a parent must have completed one year's service with the employer before he or she may take parental leave. It is important to allow sufficient time to establish an employee-employer relationship, which is why we cannot support amendment No. 4.
I am advised that it is not the case, under the Bill, that there would be a reset for every service interruption. I am informed that Deputy Paul Murphy's point is mistaken and that every period of service will be added together. This is already covered in the Minimum Notice and Terms of Employment Act 1973 and amendment No. 7 will cover multiple periods of employment or multiple breaks in employment.
I will zone in on that. The wording in amendment No. 7 states: "...where an employee ceases to be the employee of an employer and, not more than 26 weeks after the date of cesser, the employee again becomes the employee of the employer, the period of service of that employee with that employer before the date of cesser shall be deemed to be continuous with the period of service of that employee with that employer after again becoming such employee". The Minister is stating definitively that this does not just cover the period of service immediately prior to the current term, but any previous service would be counted towards the 13 weeks. Is that correct?
I welcome that and the clarification. The Minister is going to double-check it and that is fair enough. With regard to the service requirement for parental leave, parental leave is something that is planned. One does not wake up and suddenly find oneself with a child and eligibility for parental leave, or at least I hope not. Sick leave is different because it happens suddenly. The two are not the same. As I said, I am not hostile to a service requirement being part of it. It just needs to work for the people for whom we want it to work and who probably need it most, including those least likely to be working in secure employment and so forth. I understand there are service requirements for other forms of leave, but this is different. Workers know when they are coming up to an entitlement for parental leave, while they might not necessarily know when they are going to be sick. The point is that the two things are not the same.
I am sympathetic to the point the Deputies are making. Deputy Bruton from my party spoke in favour of this change earlier as well. In particular, when we are saying that it has to be certified, there is an argument for saying that the right should kick in at an earlier stage. At the same time, I am sensitive to the fact that there are employers who take people on seasonally, perhaps for just a short period of three to five or six weeks over the summer. If they found that they spent half of that time paying somebody to be out sick and paying the person's replacement, that would put an undue burden on them particularly for those types of summer jobs and very short-term jobs. That is why we have gone with the view that the person should accrue at least some service. I am not minded to accept the amendments, but I understand the Deputies' motivation. It might be something we change in the future.
I move amendment No. 5:
In page 5, to delete lines 30 to 32 and substitute the following: “(5) An employee’s entitlement to a statutory sick leave day shall commence from their first day of employment.”.
We have already discussed the amendment.
I move amendment No. 6:
In page 5, line 30, to delete “An employee’s entitlement” and substitute “Subject to subsection (7), an employee’s entitlement”.
We have covered the intention behind amendments Nos. 6 and 7 as well.
I move amendment No. 7:
In page 5, between lines 35 and 36, to insert the following: “(7) For the purposes of this section, where an employee ceases to be the employee of an employer and, not more than 26 weeks after the date of cesser, the employee again becomes the employee of the employer, the period of service of that employee with that employer before the date of cesser shall be deemed to be continuous with the period of service of that employee with that employer after again becoming such employee.”.
I move amendment No. 11:
In page 6, to delete lines 11 and 12.
I will be reasonably brief on this series of amendments as we are eager to get to amendment No. 30. This is a series of amendments deleting various considerations on which the Minister is meant to base his decision as to whether he increases the number of days of sick leave. The considerations I am seeking to delete are the state of the economy, competitiveness, the state of economic sectors and employers and the views of employers, and I can tell the Minister in advance that they will not be in favour of increasing the number of sick pay days so he can take that into account right now. I am seeking to add the effects of inflation on the cost of living for employees, which is currently wildly out of control.
The point is that, for us, this is something that should be driven by workers' rights and public health consideration, not by the view of IBEC that it cannot possibly sustain paying workers sick pay or the view of "competitiveness", which is to a large degree a byword for keeping unit labour costs down, not having too many costs on employers and so forth. The same points apply in terms of the state of economic sectors and employers. We believe this should be an automatic process and we have tabled other amendments that seek to provide for that. However, to the extent that it is not an automatic process, the Government should consider things affecting the interests of ordinary people as opposed to those of business when it comes to making the consideration about increasing the number of sick pay days.
I have tabled a similar amendment regarding what should be considered. Of course, it is open to the Minister to consider a rake of things that may not be in the legislation, but we want to include "the state of society generally, the public interest and employee well-being” in what should be considered. On the inclusion of "employee" well-being, it is not a word I like. I prefer the word "worker" as I believe it is more descriptive. However, the inclusion of that is intended to balance this in favour of workers, so that when all things are being considered the Minister is not just looking at the state of business, enterprise and employers but is also looking at employee well-being, the state of society generally and the public interest. That would broaden it to make it fair for all parties. When we talk about balance, it cannot always be balance in favour of the employer. Sometimes it just has to be in favour of the worker.
Amendments Nos. 11, 13 and 14 would disrupt the balance in the Bill that protects the rights and obligations of both employers and employees. This is a progressive Bill and will ensure that all employees will have financial protection from day one of a medically certified absence. However, the Government does not want to jeopardise jobs by placing an unsustainable cost and administrative burden on business. The introduction of a statutory sick pay scheme must be balanced with the need to ensure the viability of the business and enterprise sector, thereby protecting jobs. It is entirely logical that the Minister would have regard to the state of the economy, the business environment and national competitiveness before adjusting the number of paid sick leave days provided for under the Bill.
In recent times we have witnessed a series of unprecedented and unforeseen events that have had significant impacts on the global and Irish economies, including Brexit, the Covid-19 pandemic and the Russian invasion of Ukraine. These events are by their nature unplanned, and their impacts may be more widely felt by specific sectors of the economy. It is reasonable, therefore, that the Minister of the day would take account of any economic shocks when adjusting the number of paid sick leave days employers are required to cover. There is no sense in adjusting the number of sick leave days to a level that is unsustainable for businesses and leads to a loss of jobs.
Regarding amendment No. 12, it could be argued that these areas are already covered under section 6(1), which provides that the Minister may consider,inter alia, the state of the economy, the impact on employers and employees, the views of trade unions and any other matters the Minister deems relevant. This provides flexibility and allows the Minister to consider all relevant issues in addition to those specified in the Bill.
Although, having said that, I am minded to accept amendment No. 12, which would include an additional point to be considered by the Minister, which is the state of society generally, the public interest and employee well-being. We might have a slight numbering issue because that would give us two paragraph (b)s, so hopefully that would not create a major issue in having to come back here, but I do think I can accept amendment No. 12 because it is a reasonable matter to consider and adds to the list of matters he would consider.
In terms of amendment No. 15, the effect of inflation on the cost of living for employees is more relevant to pay levels than sick pay levels, so I would not be able to accept that.
On amendment No. 14, it is entirely reasonable that if we are going to listen to the unions, we should listen to the employer bodies as well. I can accept amendment No. 12 but not the other amendments.
I move amendment No. 16:
In page 6, line 22, to delete “The order first’’ and substitute “An order”.
This amendment would mean the number of sick days can only be increased by future Ministers from three upwards, as opposed to the prospect of future Governments actually being able to reduce the number of days down to a floor of three. If we are going to say to workers we are introducing it at three days, which we think is very minimal, and it will go up to ten and then, it is hoped, up from there, the idea that included in the legislation is the possibility of future Ministers actually reducing the number of sick leave days undermines the expectation. There is not a built-in mechanism here for the number of days to increase, which we think there should be, but at the very least, not including a provision for future Ministers to reduce the number of sick pay days is a very reasonable amendment. We should not be going backwards and we should not legislate for future Ministers to go backwards. The Tánaiste will be able to respond with all sorts of nightmare scenarios whereby we have no choice but to go backwards. That is okay, but in that situation a future Government can bring legislation to the Dáil and let us have a public debate about reducing the number of sick pay days, as opposed to empowering the Minister simply to be able to do that. We think it should be a one-way upwards ratcheting mechanism in terms of sick days.
I agree. It makes me a bit nervy, given that previous Governments have reduced sick pay entitlements for civil and public servants. I am not going to get into it, but that was done and there were all the reasons in the world given for it. I think it was Deputy Howlin at the time who said it would improve productivity, but it did not. I am concerned, given there is form on this, that it could happen. I do not believe that is the intention and I take the Tánaiste's bona fides that this is a very positive step. We have all welcomed it, but there would be no harm to put that little floor in so that when progress is made, at the very least there would have to be a change in the law and that would require a debate in here. There would be no harm in that.
Section 6 provides that the first ministerial order made under the Bill will not reduce the number of statutory sick leave days. Subsection (2)(a)(i) provides that no ministerial order will reduce the number of statutory sick leave days below three. This means that once the Bill is enacted and commenced, the number of statutory sick leave days can never go below three. The effect of the amendment would be that the number of sick leave days provided could never be reduced. I have set out the four-year plan and there are currently no plans to reduce the number of sick leave days provided for under the Bill. I have been very clear about our intention to move to ten days over time.
I acknowledge the arguments the Deputies make. If the Minister were to reduce the number of days by order, that order could be rescinded by the Dáil, but I take the point they make. It certainly would not be the intention of this Minister - nor do I think of any future Minister - to go backwards in terms of the number of sick leave days, and if they were to do so, perhaps they should do so by primary legislation rather than by order. On that basis, I can accept the amendment.
I move amendment No. 20:
In page 6, to delete lines 31 to 35
The amendment seeks to delete the section that gives the Minister 12 months to improve the lot of workers. If it was in the mind of the Minister to move from the stated three days to five days or ten days, it should be open to the Minister to do that within six months and not to have to wait for 12 months. We propose that lines 31 to 35 would be deleted.
Section 6 provides that the Minister will not make an order adjusting the number of statutory sick leave days under the Bill until 12 months after its enactment, and that a period of 12 months must pass between each subsequent adjustment. This amendment would remove that provision and place no restrictions on how often the number of sick leave days could be changed. Limiting adjustments to once every 12 months provides both employers and employees with a degree of certainty around their obligations, entitlements and costs. Once enacted, employers will know in advance of each year what their obligations are in relation to statutory sick leave. This will allow for better alignment with contracts of employment and tax responsibilities. The limit on adjustments will also allow the Minister time to reflect on the impact of any change The fact that the adjustment, which can now only be an upwards adjustment, can only happen every 12 months is a reasonable one, allowing employers to plan ahead and to know what their costs and payroll obligations will be. If a future Minister wanted to go faster, that would best be done primary legislation. I cannot accept the amendment.
We debated this on Committee Stage as well. We feel this is a reasonable position for the Minister to be enabled to improve the situation and not to have to wait 12 months to do so. That is the purpose of the amendment.
Amendments Nos. 21 to 27, inclusive, are related. Amendments Nos. 22 and 23 are physical alternatives to amendment No. 21. Amendments Nos. 25 to 27, inclusive, are physical alternatives to amendment No. 24.
Amendments Nos. 21 to 27, inclusive, may be discussed together.
I move amendment No. 21:
In page 7, line 4, after “day” to insert “equivalent to one hundred per cent of an employee’s pay”.
This group of amendments deals with the rate of sick pay. All our amendments are effectively trying to get sick pay of 100%. The level of sick pay proposed by the Government is low, let us be honest. It allows for 70% of pay at up to a maximum of €110 per day. This means when it starts, workers will get a maximum of €330 sick pay per year in the first year of the scheme. That is less than one week’s worth of the enhanced illness benefit, which has been widely and rightly criticised for being too little for many low-paid workers.
The bottom line of my point is that if we accept that workers are genuinely sick and they have a right to sick pay, then why should that be less than their regular pay? A person cannot call the bank and ask to pay 70% of the mortgage this week because he or she is off sick. That same person cannot call the grocery shop and ask for the same deal. He or she cannot pay childcare fees on the same basis. People have lives that are built around certain income. If they are sick, they are presumably sick through no fault of their own and they should not be punished for that. Being sick is enough of a problem on its own. Therefore, we should be guaranteeing that people get 100% of their income so that they and their families can continue to survive on that basis. I will leave it there to give space to others to make a contribution.
I have similar amendments. I agree with what an Teachta Paul Murphy has said. I want to include a reference to the need to have a GP certificate because it is a fact in this State, and I am not comparing us to every other country, that we do not have universal, free at the point of delivery access to GP care. It is not true to say the majority of low-paid workers have access to it. In fact, the Irish Congress of Trade Unions has debunked that. They do not necessarily have access to a GP card.
People will have 70% of a low income on their first statement and will have to put their hand in their pocket to go to a doctor. This acts as a deterrent. The point of this scheme, as the Tánaiste has said, is to be a positive thing, and it should be a positive thing, but if it does not work and people think they have to go to work because they cannot afford not to, then that defeats the purpose of the scheme. I therefore specifically included this amendment - I had another amendment on it that was ruled out of order, but we can debate that on another day - which references the need for workers to have the medical certificate. This is another financial burden on them.
This provision in the Bill will do more damage than anything else to its potential for success. If I am sick and I am less likely to admit to that because I will get less money and I will be paid less, I will just go to work sick. As has been outlined, it is an expensive business being sick in this country. Not only do people have to pay for a GP visit, because we do not provide that for free, unlike in other countries, there is also the cost of whatever medicines are prescribed. It is not a cheap business being sick in this country. I can see a worker who is struggling to pay the bills deciding to go into work and pretend he or she is well. That is not something any of us wants to see that happening, but that is what will happen.
We must go back to where the worker is coming from. I know the Tánaiste talks about the employer, and he is right to focus on the employer as much as we want to focus on the employee. However, if a worker who has bills to pay and children to feed thinks for a second he or she has to go to work even though he or she is sick, then this Bill will have failed. The most problematic part of this Bill is that it will be worth more to the worker to go to work sick than to avail of the provisions within the Bill.
I thank the Deputies. I know some stakeholders believe the rate of payment and an earnings cap should be set in the Bill itself. I do not agree with that. Setting the rates by ministerial order allows for greater flexibility and will allow the rate to be revised as necessary in line with inflation, changing incomes and, indeed, changing politics. For example, the national minimum wage is regularly adjusted by ministerial order. Similarly, the method of calculation for payments in respect of annual leave and public holidays is also set out by regulation. It is a sensible provision that allows the Government, and indeed future Governments, to respond to changing economic circumstances without having to make all changes by way of primary legislation.
I have been clear in my medium-term plan, which is to set the rate at 70% of pay, capped at €110 per day. That figure will obviously rise now as incomes are rising. That makes sure employers know what their obligations will be. It is the principle we applied when we designed the pandemic unemployment payment, which was for roughly 70% income replacement up to a capped figure. A minimum rate entitlement will also be set to ensure all workers will receive a reasonable level of compensation. That will be similar to illness benefit. The principle behind us not making it 100%, although that would be possible under the legislation, is that the costs should be shared, approximately 70% by the employer and approximately 30% by the employee, and then by the State through illness benefit, which is funded by employers and employees as well. I need to bear in mind the very high costs that can arise for some employers, not just covering the 70% cost of somebody being out sick but also the 100% cost of the person they have to replace, and perhaps the premium they have to pay for him or her on top of that. This can therefore be a very high cost for an employer, especially if he or she has to pay to replace a member of staff.
On GP card eligibility, I take the point that many people on low incomes do not qualify for the GP card. The solution to that is to increase eligibility for it very significantly over the next couple of years. That is something I will arguing for strongly in the forthcoming budget. While I agree with universality when it comes to the provision of healthcare, it is particularly wrong that people who go out to work every day and who are on very low incomes have to find the €60 to pay the doctor. That is not right and I hope it is something we can change in the budget. The focus up until now has been on children, but I think those on low incomes should be prioritised in the next tranche as well.
Very briefly, it is an awful pity that my amendment was not accepted, which would have phased in this requirement to present a medical certificate alongside the extension of the universal access to GP care.
I move amendment No. 30:
In page 11, line 22, to delete “20 weeks’” and substitute “4 weeks’”.
These amendments amend the maximum penalty the Workplace Relations Commission or Labour Court may award if an employer breaches obligations under the Bill. That now moves from 20 weeks' remuneration to four weeks' remuneration. This will bring the penalty more into line with the protections afforded to other types of leave, where the level of penalty is approximately in line with the duration of the leave concerned.
On Committee Stage, the proposal was to amend the penalty to two weeks' remuneration, but Deputies were concerned that was too little and would incentivise employers to try to avoid obligations. There may have been some misunderstanding in that regard. This penalty is in addition to employees' entitlement to their statutory sick pay and not in substitution for it. However, I recognise Deputies' concerns that a more substantial penalty should be available. On balance, we believe a penalty of 20 weeks' remuneration is disproportionate to the offence. I now propose the penalty for non-compliance should be set at four weeks' remuneration. For example, if an employer denies somebody ten days' statutory sick leave, that employer will have to pay the ten days and will also be faced with penalty of four weeks' pay in addition to that.
This is very mean-spirited. The penalty was 20 weeks' remuneration, which was reasonable. This has to act as a deterrent. Remember, we are not here to deal with employers who do the right thing and good employers who already provide sick leave. We are here to deal with employers who do not and for whom the law will be required to ensure they do the right thing by their workers. The 20 weeks would have acted as a deterrent, while four weeks will not.
I am against the amendment. The original 20 weeks' remuneration was a significant punishment and deterrent for employers who did not pay. Four weeks rather than two shifts the balance slightly but, unfortunately, there will definitely be employers who will think they might get away with not paying workers their sick pay entitlements and the worst that can happen is a penalty of four weeks' pay so they will take the risk.
This provision does not apply to employers who do the right thing and provide sick pay. This is for employers who do not do the right thing and who do not provide workers with the entitlements we are passing and saying are so important and so on. I do not see the problem with having a substantial level of potential compensation that, to be clear, shall not exceed 20 weeks' compensation. The employee does not have to be awarded 20 weeks' compensation but, if the Government's amendment passes, the maximum he or she can be awarded is four weeks' compensation, which is not enough for the employee who has to put up with all of this and has to go through the rigamarole of taking a case and so on. It is not enough of a punishment and deterrent for the employer.
This amendment completely misses the disgusting nature of the intent of an employer not to pay sick pay. What kind of employer are we dealing with who would resist paying sick pay for his or her employee? In the original legislation we discussed previously, the penalty of 20 weeks seemed to me to be commensurate with the disgust we should have for such an employer. It is clear, given that the Tánaiste has come to the Chamber to amend it down to four weeks, that somebody from the employer side of things has had his ear or somebody else's. We genuinely believe this is not good enough and will be absolutely opposing the amendment.
These things amount to a judgment call. My original view was the same as the Deputies in that it should be 20 weeks' remuneration but having taken advice, in particular legal advice, and heard the views of many others, we had to try to make sure the penalty was proportionate to the offence. When we looked across other legislation, for example, paternity leave, when the entitlement was two weeks' paternity leave, the penalty was two weeks. It was, in essence, 100%. If the person was not given two weeks' paternity benefit or leave, the penalty was that again. We are actually proposing to double that. If the person is not given three days' sick pay, the employer could have to bear a penalty nearly seven times that, which is 20 weeks. Even if it gets to ten days, it will still be double. It is a judgment call. We are trying to get the balance right. We believe the penalty being double the offence is proportionate and that is the thinking behind it.
I have one more question. The Tánaiste mentioned legal advice. What did the legal advice state? It can only state there may be a constitutional issue in respect of Deputies drafting legislation because we are clearly changing the law. I am intrigued by that.
I would be similarly interested to hear about that but, equally, the Tánaiste said this is directly linked to the number of sick leave days a person will get. It is three days in the first instance, which will rise to ten days all being well. Is it his intention this will increase incrementally or is it four weeks and that is it?
To be clear, it is not that the legal advice is that the provision is not constitutional or we could not do it. It is that when we are drafting legislation, we should try to make sure that penalties are proportionate to the offence. That is a basic principle of justice. A more severe offence has a bigger penalty. As things stand, it is two weeks' entitlement and two weeks' penalty in respect of paternity leave. What we originally proposed for sick pay was ten days' entitlement and 20 weeks' penalty, which appeared disproportionate. We are now proposing that if somebody is not given ten days' sick pay, he or she will have to get the ten days and the penalty would be up to 20 days or four weeks. The penalty, if you like, is double the offence. If we decide to go beyond ten days, we could go up from four weeks, but it will be four weeks from day one.
Cathal Berry, Richard Bruton, Colm Burke, Peter Burke, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Seán Canney, Ciarán Cannon, Joe Carey, Jennifer Carroll MacNeill, Jack Chambers, Michael Collins, Niall Collins, Patrick Costello, Simon Coveney, Barry Cowen, Michael Creed, Cathal Crowe, Cormac Devlin, Alan Dillon, Stephen Donnelly, Francis Noel Duffy, Bernard Durkan, Damien English, Frank Feighan, Michael Fitzmaurice, Peter Fitzpatrick, Joe Flaherty, Seán Fleming, Norma Foley, Brendan Griffin, Simon Harris, Seán Haughey, Danny Healy-Rae, Michael Healy-Rae, Martin Heydon, Emer Higgins, Neasa Hourigan, Heather Humphreys, Paul Kehoe, John Lahart, James Lawless, Brian Leddin, Michael Lowry, Josepha Madigan, Steven Matthews, Paul McAuliffe, Charlie McConalogue, Helen McEntee, Mattie McGrath, Michael McGrath, Joe McHugh, Aindrias Moynihan, Michael Moynihan, Jennifer Murnane O'Connor, Verona Murphy, Denis Naughten, Malcolm Noonan, Darragh O'Brien, Joe O'Brien, Jim O'Callaghan, James O'Connor, Willie O'Dea, Kieran O'Donnell, Richard O'Donoghue, Patrick O'Donovan, Fergus O'Dowd, Roderic O'Gorman, Christopher O'Sullivan, Pádraig O'Sullivan, Marc Ó Cathasaigh, Éamon Ó Cuív, Anne Rabbitte, Michael Ring, Eamon Ryan, Matt Shanahan, Brendan Smith, Niamh Smyth, Ossian Smyth, David Stanton, Leo Varadkar.
Chris Andrews, Ivana Bacik, Mick Barry, Richard Boyd Barrett, Martin Browne, Pat Buckley, Holly Cairns, Matt Carthy, Sorca Clarke, Joan Collins, Rose Conway-Walsh, Réada Cronin, Seán Crowe, David Cullinane, Pa Daly, Pearse Doherty, Paul Donnelly, Dessie Ellis, Mairead Farrell, Kathleen Funchion, Gary Gannon, Thomas Gould, Johnny Guirke, Marian Harkin, Gino Kenny, Martin Kenny, Claire Kerrane, Pádraig Mac Lochlainn, Mary Lou McDonald, Denise Mitchell, Imelda Munster, Catherine Murphy, Paul Murphy, Gerald Nash, Carol Nolan, Cian O'Callaghan, Louise O'Reilly, Darren O'Rourke, Eoin Ó Broin, Donnchadh Ó Laoghaire, Ruairi Ó Murchú, Aodhán Ó Ríordáin, Aengus Ó Snodaigh, Thomas Pringle, Maurice Quinlivan, Patricia Ryan, Seán Sherlock, Róisín Shortall, Bríd Smith, Duncan Smith, Brian Stanley, Peadar Tóibín, Mark Ward, Jennifer Whitmore.
The time permitted for this debate having expired, I am required to put the following question in accordance with an Order of the Dáil of 17 May: "That the amendments set down by the Tánaiste and Minister for Enterprise, Trade and Employment, and not disposed of, are hereby made to the Bill; Fourth Stage is hereby completed; and the Bill is hereby passed.”