Denis O'Donovan (Fianna Fail)
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This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 118 it is deemed to have past its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad.

For Senators' convenience I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject matter of each group of related amendments. I have also circulated the proposed grouping in the House. A Senator may contribute once on each grouping. I remind Senators that the only matter that may be discussed is the amendments made by the Dáil and no other matter.

Denis O'Donovan (Fianna Fail)
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I welcome the Minister, Deputy Howlin, to the House. I call the Minister on the subject matter of group 1, which is amendments Nos. 1, 4 to 7, inclusive, and 12. It should be noted that the text to be deleted and replaced in amendment No. 5 should not include a closing single quote after "trade". I call on the Minister to proceed on the first group of amendments.

Brendan Howlin (Wexford, Labour)
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I thank the Leas-Chathaoirleach for his comprehensive explanation. Senators will be aware that we passed all Stages of the Bill in this House before the summer and that we had amended it to include a new issue in the Dáil, which is what brings me back to this House. I understand we will take the 13 amendments before the House in four groupings.

A total of 13 amendments were proposed and approved on Committee and Report Stages in the Dáil. The most substantive aspect of the amendments proposed related to the introduction of a new part 7A which will enable me, as Minister for Public Expenditure and Reform, to provide by regulation for a new sick leave arrangement for the public service. The regulation made under this legislation will reflect the binding recommendation of the Labour Court from 2012. The regulation will be laid before both Houses. The final part of the Labour Court determination was only presented to the Labour Court on Monday and we are waiting for its final binding decision in regard to one aspect of that. I will provide information on the substantive provisions relating to sick leave, which is what I believe people will want to speak about, when I am speaking to the second group of amendments.

The first group we are discussing includes amendments to the definition of public service body in the principal Act, the repositioning of the definition of public service body applicable to redeployment and consequential amendments. There are six amendments in this group. These relate to what was the original Bill we discussed.

Amendment No. 1 provides for the reinstatement of the definition of "public service body" which will apply to the recruitment and appointment function of the Public Appointments Service, PAS, in section 2(1) of the principal Act. The earlier version of the Public Service Management (Recruitment and Appointments) (Amendment) Bill 2013 introduced two definitions of "public service body" into section 2(1) of the principal Act. The first definition was to apply in respect of the recruitment and appointment function of the PAS and the second was to apply in respect of redeployment. In the interests of clarity and transparency, it is considered that one definition of "public service body" should appear in section 2(1) of the principal Act, relating to the recruitment and appointment functions of the PAS, and that the definitions applicable to redeployment and to the new sick leave remuneration should appear in their own Parts of the Bill, that is, Part 6A and Part 7A, respectively. It will be easier for people wanting to know exactly what the law is to read it in a joined-up, whole way, so to speak.

The definition has been amended slightly since the last version of the Bill to reflect two technical amendments. The first specifies that the definition applies "other than for the purposes of Parts 6A and 7A". This is because broader definitions of "public service body" will apply in respect of Part 6A, which concerns redeployment. Part 7A, as I said, will concern sick leave remuneration.

The other technical amendment refers to "an education and training board" rather than to "a vocational education committee", VEC. This is to reflect changes introduced by the enactment of the Education and Training Boards Act of 2013.

Amendment No. 4 seeks to reposition the definition of "public service body" that applies in respect of redeployment from section 2 of the principal Act to Part 6A of the principal Act alongside the other definitions applicable to deployment. This is simply replacing it in order that it can be read more clearly. This definition of public service body applicable to redeployment is broader than the definition applicable to the recruitment and appointment functions of the PAS under section 2(1). It is the definition of public service body that appeared in the earlier version of the Public Service Management (Recruitment and Appointments) Bill 2013 except for one technical amendment. To reflect changes introduced by the Education and Training Boards Act of 2013, the definition refers to "an education and training board" rather than "a vocational education committee".

Amendment No. 5, a technical amendment necessitated by amendment No. 4, involves the renumbering of the section beginning " 'recognised trade' ". Amendment No. 6, again a technical amendment necessitated by amendment No. 4, involves the renumbering of the section beginning " 'redeployment day' ". Amendment No. 7, a technical amendment again necessitated by amendment No. 4, involves simply renumbering of the section beginning " 'a reference' ".

Amendment No. 12, the final amendment in this group, seeks to exclude commercial State bodies and their subsidiaries from the definition of "public service body" in both Part 6A, which concerns redeployment, and Part 7A, which concerns sick leave remuneration, through the extension of the application of Schedule 3 to Part 6A and Part 7A.

That is the first group of amendments. They are, by and large, technical in nature simply to allow for the more substantive arrangements that will apply to sick leave, which will be the next group we will discuss.

Denis O'Donovan (Fianna Fail)
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As no Member is offering I call the Minister to speak to group 2, insertion of Part 7A on sick leave remuneration and consequential amendments, the subject matter of amendments Nos. 2, 3, 10 and 13.

Brendan Howlin (Wexford, Labour)
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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.

Thomas Byrne (Fianna Fail)
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As my colleague suggested in the Dáil, we do not have a huge difficulty with this and, by and large, we support it. The issue of sick pay in the public sector has to be dealt with and has been dealt with by all parties talking, agreeing and going before the Labour Court and the Labour Relations Commission. However, we must ask why this is being rushed through now, before the decision that is due on Friday. Why pass legislation now and have a special motion to present this legislation to the President at an early date when the Government could probably wait until early January to do this, when the full facts will be known and when we will know exactly what we are voting on? That is a key point of objection for us.

Otherwise, however, we are with the Minister on this aspect of the reform agenda. I believe it would have been better dealt with in separate legislation, but that is a matter for the drafters and the Minister. If the Minister is looking for PR, he would probably do better in January than with Christmas coming up. To be fair to Members, I believe this should be held off until after the decision that is due this week.

Kathryn Reilly (Sinn Fein)
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We all know the rationale for the sick leave legislation but, again, we ask why it is being dealt with in this legislation and why there is not standalone primary legislation to underpin it. The Minister mentioned earlier the importance of having specific primary legislation for this purpose but why not have it on its own? Similarly, as legislators, we should have the regulations in front of us when we are making important legislation as we cannot do our work without the full picture. I ask the Minister for an update on the regulations and when they will be laid before the House.

Many of the issues were raised in the other House when these amendments were made. One of them was the issue of retrospection, which I would like to put on the record of the House, given this is a very different Bill from the one we dealt with on Second Stage, Committee Stage and Report Stage. In a parliamentary question to the Department, my colleague, Deputy Mary Lou McDonald, asked whether these regulations will include provision to retrospectively apply the new certified sick leave arrangements. In its response, the Department recounted the necessity to give public service employees advance notice of the new scheme and make provision for a transitional period. She was informed that access to the new reduced limits of sick leave is not being applied retrospectively. The Department went on to explain that individual sick leave records will remain unchanged following the legislation and will continue to be used to determine whether an individual has access to paid sick leave and at what rate. It pointed out that when an individual is absent from work due to sick leave, his or her record over the previous four-year rolling period will be examined to see if the sick leave limits have been exhausted. This seems to indicate that the new regime will be retrospective. We would have grave concerns about that and I see it causing some difficulty.

Will the Minister address this issue and explain why we are dealing with this legislation when there are matters still outstanding? The critical illness protocol is being discussed currently and we should wait until those issues are resolved at the Labour Court before we legislate today.

Michael D'Arcy (Fine Gael)
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I am coming to this Bill very late in the day. The Minister outlined the State agencies and bodies that are covered by the Bill but there are people within those bodies and agencies who are contracted out to do part-time work for local authorities, schools and so on. Are they covered by the legislation and to what extent are they covered?

Brendan Howlin (Wexford, Labour)
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I thank Senators for their contributions. I will deal first with Senator Byrne's questions in regard to what he describes as a rush. We have signalled this as coming for a very long time. The initial determination of the Labour Court was in 2012 and it had been my hope and expectation to commence all of this on 1 January. On foot of a request from the Senator's colleague in the other House, I determined that I would do the detail by way of regulation to give people the chance to read the regulation. I accepted the amendment his colleague in the Dáil put forward. Given that I am going to do it by regulation, and in answer to Senator Reilly's point, I cannot draw up the regulation until the legislation is enacted.

We are awaiting the final element of the Labour Court determination, which is on a narrow set of issues. I will not go through the whole day's worth of submissions from both parties in the court last Monday, but there is an important issue here in terms of pregnancy-related illness and how it should be covered in the protocol. We are expecting a binding recommendation from the Labour Court to give additional latitude to pregnancy-related illness, which is something of which I was mindful having heard the same points raised in this regard in the other House. Once that recommendation is forthcoming, we will be able to draw up comprehensive regulations and make them available to both Houses.

For that reason, we are not pursuing a motion for earlier signature. My intention to have these provisions commenced in January cannot be realised because it will require a period of time before the regulations can be formerly accepted. That will push the commencement of the scheme back into later next year. My intention, therefore, is that the original Bill, which deals with redeployment and which we debated at some length earlier in the year, will be commenced immediately, but the revised cross-sectoral sick leave arrangement will not be commenced until later. I have not yet fixed a date for that but, realistically, it will probably be 1 March before the regulations are formally laid before and approved by the Houses. That legislative process will delay the implementation of the provisions, for which I have been criticised in some quarters. However, it is important that the detail be there as well as the overarching substance.

In regard to retrospection, it is important to be clear on what we mean by the new scheme having retrospective application. The question of retrospection arises in terms of reviewing an individual's sick leave record over the past four years and using it to determine access to the new scheme. We debated this issue in the House and it is part of the presentation to the Labour Court. Assuming we commence the scheme on 1 March, say, we could not have a situation where a person who becomes ill the following day having never taken sick leave before is subject to the new arrangement while another person who, to be diplomatic about it, has an indifferent sick leave record gets his or her slate wiped clean. That would not be fair and the rationale behind the retrospective element is to avoid such anomalies. However, the new arrangement will not apply to anybody who is out sick at the time of commencement. In that circumstance, the old scheme will apply until such time as the individual has recovered and is back in work.

Senator Michael D'Arcy asked about the scope of these provisions. Other than the categories of workers which I have indicated are excluded, namely, employees of commercial semi-State bodies, members of the Defence Forces and people who do not qualify for sick leave such as Oireachtas Members, the President and so on, the scheme will have broad application. However, it will apply only to employees who are on the State payroll qua payroll as opposed to contract staff. People employed on contract have a different relationship with the State.

Thomas Byrne (Fianna Fail)
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Will the Leas-Chathaoirleach allow me to make a brief query?

Denis O'Donovan (Fianna Fail)
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I am not supposed to allow such interventions, but I will bend the rules to accommodate a very brief question.

Brendan Howlin (Wexford, Labour)
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It might be just as well.

Thomas Byrne (Fianna Fail)
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My question is a technical one relating to the earlier signature motion. If we pass the Bill today, does that not mean it will go to the President immediately and must be signed by him between five and seven days after he receives it, which would be Christmas Eve?

Brendan Howlin (Wexford, Labour)
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Yes, that is the norm.

Thomas Byrne (Fianna Fail)
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Are we passing the Bill today or not?

Brendan Howlin (Wexford, Labour)
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Yes, the Bill will be passed today.

Thomas Byrne (Fianna Fail)
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In which case the President will receive it on Christmas Eve?

Brendan Howlin (Wexford, Labour)
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Yes, as per normal practice.

Thomas Byrne (Fianna Fail)
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I was inclined to support an earlier signature motion so that the President could deal with it before Christmas, but I would not want to rush him either.

Brendan Howlin (Wexford, Labour)
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As I understand it, he is not going anywhere.

Denis O'Donovan (Fianna Fail)
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The Senator raises an important point, but I am sure the Minister and his officials are well capable of dealing with the legal issues and so forth.

Thomas Byrne (Fianna Fail)
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Is there any way it could possibly fall to the Leas-Chathaoirleach?

Denis O'Donovan (Fianna Fail)
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I expect I would manage if push came to shove. We will now move on to the third group of amendments.

Brendan Howlin (Wexford, Labour)
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Amendment No. 8 is a technical drafting amendment. On Report Stage in the Seanad the text of subsection 57D(b) of the principal Act was amended to remove any doubt that the Public Appointments Service must always consider any collective agreement on mobility or redeployment in the context of the broader redeployment policy of the Minister. This amendment adjusts the changed subsection slightly by substituting the word "that" with "the pay" to take account of the earlier amendment.

Amendment No. 9 replaces a reference to the 1977 amendment of section 13 of the Ministerial and Parliamentary Offices Act 1938 to take account of the more recent amendment of that section in 2011. The latter amendment defines the Leader of the House in Seanad Éireann as a holder of ministerial office for the purposes of the Act. The clarifying amendment has no impact on section 57E(d) of the principal Act, as amended by this Bill.

Denis O'Donovan (Fianna Fail)
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We will now deal with the fourth group of amendments.

Brendan Howlin (Wexford, Labour)
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This group comprises one amendment relating to the deletion of the commencement provision of the Bill. It is necessary to commence the Bill on enactment to allow for the regulations under the sick leave arrangement to be laid before the Houses of the Oireachtas at the earliest possible date. I confirm that there is no impediment to the immediate commencement of the redeployment provisions.

Paddy Burke (Fine Gael)
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When is it proposed to take next Stage?

Maurice Cummins (Fine Gael)
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Now.