Brendan Howlin (Wexford, Labour) | Oireachtas source

Group 2 is the more substantive group and contains the meat of what I want to achieve today. There are four amendments in this group which relate to the introduction of the new sick leave scheme for the public service. Given the relatively substantive change to the Bill during Report Stage in the Dáil, I would like to take some time to outline the new provisions relating to sick leave.

A motion of instruction was passed in the Dáil last week enabling some amendments to be included in the Bill which will allow me, as the Minister for Public Expenditure and Reform, to provide, through ministerial regulation, for a new sick leave scheme for the public service. When we were dealing with the Second Stage of this Bill in late September, I advised the Dáil of my intention to bring forward provisions relating to sick leave on Report Stage.

As Members of this House will be aware, the rationale for the new scheme was the need to reduce the unsustainable cost of sick leave for the public service overall and this is to be achieved through a substantial reduction in the period of time for which paid sick leave will be available. The reduction in paid sick leave under the new scheme will reflect exactly the binding recommendation of the Labour Court. In accordance with the Labour Court recommendation, the regulation will provide that the new sick leave scheme for the public service includes a maximum of three months on full pay in a year followed by a maximum of three months on half pay, subject to a maximum of six months paid sick leave in a rolling four-year period.

In addition, the Labour Court recommended that special arrangements were to be put in place, through the development of a critical illness protocol, under which staff with serious illnesses or injury might be able to benefit from extended paid sick leave on an exceptional and normally non-recurring basis. In effect this means that staff covered by the critical illness protocol would continue to have the same level of support that is available under the current sick leave scheme. This protocol, which is at an advanced stage of development, is the subject of ongoing consultation with the public service unions and was referred back to the Labour Court earlier this week for a binding recommendation on a limited number of issues.

While the new sick leave arrangements could be applied in some sectors, such as the Civil Service, by administrative circulars, the Office of the Attorney General has advised that legislation is required to ensure that the new public service sick leave scheme can be applied across the public service, particularly as many public servants have employment contracts that are governed by private contract law.

Against this background group 2 amendments relate to the insertion of the new sick leave provision. Amendment No. 2 is necessary to facilitate the insertion of Part 7A into the principal Act. Section 7 sets out a number of positions and appointments that are excluded from the provisions of the principal Act. It is proposed to amend the existing provision in the Bill to ensure that these exclusions do not affect the Minister in making regulations on sick leave remuneration.

Amendment No. 3 is necessary to facilitate the insertion of part 7A into the principal Act. It had already been provided in the Bill, as passed by the Seanad, that redeployment by the public service appointments service to unestablished excluded positions in the Civil Service would not require the separate sanction of the Commission for Public Service Appointments, CPSA. This amendment provides that the application of the new sick leave scheme does not require the separate sanction of the CPSA.

Amendment No. 10 seeks to insert a new part 7A, which comprises sections 58A to 58C, into the principal Act and is the substantive amendment to the Bill. As I have already outlined, 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 more detail in the regulation, having regard to certain principles and policies. Section 58A specifies how certain terms, including “condition”, “relevant person” and “sick leave”, are to be interpreted for the purpose of part 7A. This section provides a broad definition of “public service body” which, when applied in conjunction with the separate definition of “public servant” in this section of the Bill, will define the potential extent of coverage of the new sick leave scheme.

Taken together, the definitions of “public service body” and “public servant” are broad enough to mean that the generality of all public servants working in public service bodies may be covered by the new sick leave scheme. The ministerial regulation that will then be drawn up under the new part 7A will specify the public servants to whom the new scheme will apply. The definition of “public service body” for the purposes of sick leave remuneration is broadly modelled on the definition of “public service body” in section 5 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012.

The only explicit exclusion from the scope of the sick leave provisions are commercial State bodies and their subsidiaries. These are listed in Schedule 3, which was inserted by section 7 of the Bill, and specifies the bodies to which the definition of public service body does not apply. In addition, there are a limited number of groups who are not included in the definition of public body and public servant the Permanent Defence Forces will not be included in the new scheme as the Defence Forces regulations are the appropriate vehicle for the amendment of any sick leave arrangements in that sector. Notwithstanding this, there will be reductions in the access to sick pay in the Defence Forces. My Department is in ongoing negotiations with the Department of Defence about the introduction of those changes.

Civilian employees of the Defence Forces are specifically listed to provide certainty that they are included; civilian employees are not civil servants, they are specifically excluded from the Civil Service Regulation Act 1953 by section 20(2)(d) of that Act and they are not members of the Permanent Defence Force. A limited number of other groups are not covered by the definition of public service body and public servant, including Members of the Houses of the Oireachtas, members of the Judiciary, a Member of the European Parliament for a constituency in the State, being a Member who is in receipt of the salary specified in section 2(2) of the European Parliament (Irish Constituency Members) Act 2009. The specific public service bodies to which the scheme will apply will be set out in the regulation that gives effect to this legislation. It is my intention to cover all areas of the public service with the exception of those areas I have just mentioned. Specifically that will include public servants in the health sector, the local government sector, the civil service, An Garda Síochána, and the non-commercial semi-State bodies.

The education sector will be joining the scheme in September 2014 at the start of the new school and third-level year. This approach, which reflects negotiations in the Labour Court, makes the most sense for that sector from an administrative perspective as leave and sick leave arrangements in the education sector relate to the school year rather than the calendar year. Section 58B empowers the Minister for Public Expenditure and Reform to make regulations providing for the payment of remuneration to a public servant during a period of sick leave. Section 58B(1) provides that the Minister can determine the rate of pay that should be paid during periods of sick leave. The rate of pay can be expressed in terms of full pay; a percentage of full pay; or a combination of full pay and a percentage of full pay. This provision is a prerequisite to the introduction of the new sick leave scheme and is in accordance with the Labour Court recommendation.

I want to underscore again and again that what we are doing is simply transposing into law what is the binding recommendation on all parties of the Labour Court.

Section 58B(2) provides that no sick leave remuneration will be paid in instances where an individual has exhausted the sick leave limit set. This provision is required to ensure that the standard sick leave scheme is applied across the public service and that individuals are not being paid different rates beyond those set out in the regulations I propose to make.

Section 58B(3) provides that the Minister can set the length of time for which an individual will be paid sick leave remuneration. The length of time can be expressed in terms of days, hours or weeks because, depending on the sector, it may be more appropriate to refer to either days, hours or weeks.

Section 58B(4) sets out the principles and policies to which the Minister must have regard in making these regulations. These are (a) the need to limit the circumstances in which financial resources are committed to paying individuals where the public service does not have the benefit of those services; (b) the resources available to the Exchequer to pay public servants; (c) the obligations of the State under the fiscal stability treaty; (d) the need to have a means of verifying that an individual is unable to come to work due to illness or injury; and (e) the need to protect the health of public servants. These represent a balance between the need of the Minister to have regard to a range of issues, including the financial position of the State, and the need to support public servants who are experiencing bouts of ill health.

Section 58B(5) provides that the regulations may provide in exceptional cases that there may be paid sick leave for a period of time longer and at a higher percentage of remuneration than would otherwise be the case. This provision will facilitate the introduction of what I have already described as the critical illness protection, which will provide access to extended paid sick leave in circumstances where an individual becomes seriously ill or is seriously injured. Again, this is in accordance with the recommendations of Labour Court.

Section 58B(6) provides that the Minister can delegate certain decisions in regard to sick leave to a public service body. Such decisions may include whether an illness or injury is of a serious nature, what an appropriate period of rehabilitation might be and what constitutes necessary medical certification. This provision is intended to allow for appropriate flexibility in regard to the implementation of the new sick leave arrangements at an organisational level.

Section 58B(7) sets out the transitional arrangements that apply where an individual is already on a period of sick leave when Part 7A is commenced. Again, in accordance with the Labour Court recommendation, people on sick leave at the time of the commencement of the new scheme will continue to be covered by the existing sick leave arrangements until they return to work. The new scheme does not click in until they are back in work.
Section 58B(8) provides that nothing in this section will prejudice the operation of the Social Welfare Acts or any instruments made under these Acts. Public servants who are class A PRSI contributors claim illness benefit when they are absent from work on sick leave. The public service employer pays the individual's salary and recoups the illness benefit from the State on behalf of the individual. This provision clarifies that the Bill will not interfere with that arrangement. For the sake of clarity, a matter that was raised in the other House concerned exceptional circumstances, although I cannot envisage them, where the remunerated pay was less than a social welfare payment. In such a case, the balance will be rebated to the public servant.
Section 58B(9) provides that every regulation made under Part 7A will be laid before each House of the Oireachtas once it is made. This provision reflects best practice in making regulations.

Amendment No. 13 provides for the insertion of a new sentence into the Long Title of the Bill. This is to reflect the fact the Bill, as amended, proposes to insert this new Part 7A, which concerns sick leave remuneration into the principal Act. As the Long Title of the Bill suggests, it amends the Public Service Management (Recruitment and Appointments) Act 2004 to provide for redeployment of public servants. The amendments being brought forward are beyond the scope of the current Long Title so it is proposed to amend the Long Title to provide for regulations concerning sick leave in the public service.