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Dáil Éireann debate -
Thursday, 12 Dec 2013

Vol. 824 No. 3

Public Service Management (Recruitment and Appointments) (Amendment) Bill 2013: Instruction to Committee

I move:

That, pursuant to Standing Order 177, Standing Order 131 is modified to permit an instruction to the committee on the Public Service Management (Recruitment and Appointments) (Amendment) Bill 2013, that it has power to make provision in the Bill for a new Part 7A in relation to sick leave remuneration, empowering the Minister for Public Expenditure and Reform to make regulations concerning the payment of remuneration to public servants during sick leave, and to make necessary consequential amendments to the Long Title.

I am tabling this motion of instruction to enable some amendments to be included in the Public Service Management (Recruitment and Appointments) (Amendment) Bill 2013, which will allow the Minister for Public Expenditure and Reform to provide, through ministerial regulations, for a new sick leave scheme for the public service. As the current Long Title of the Bill suggests, it amends the 2004 recruitment Act to provide for redeployment of public servants. The amendments being brought forward are beyond the scope of the current Title of the Bill, so it is proposed to amend the Title to provide for regulations concerning sick leave in the public service. It is also my intention to accept, in essence, the suggestion of Deputy Fleming to lay such regulations before the House.

Deputies will recall that when we were dealing with Second Stage of this Bill in late September, I advised the House of my intention to bring forward provisions relating to sick leave on Report Stage. I thank the House for its co-operation in facilitating the bringing forward of this motion to include these amendments on Report Stage of the Public Service Management (Recruitment and Appointments) (Amendment) Bill 2013. The amendments, which will be inserted as Part 7A of the Bill, will enable the Minister for Public Expenditure and Reform to provide for a sick leave scheme that will apply to all public servants based on important principles and policies set out in the legislation.

Before turning to the detail of the proposed new Part, I will provide the House with some background information on the new public service sick leave scheme and the rationale for the proposed changes. As Deputies will be aware, the new public service sick leave scheme is being introduced following a binding 2012 Labour Court recommendation concerning sick pay in the public service. The rationale for the new scheme was the need to reduce the unsustainable cost of sick leave for the public service overall. This is to be achieved through a substantial reduction in the period of time for which paid sick leave will generally be available from the one year period available at present, comprising six months full pay and six months half pay, to three months full pay and three months half pay.

We know that in many areas of the public service absenteeism levels are high compared to best practice benchmarks, ranging from 4% to 5%. The direct pay bill cost of this absenteeism has been estimated at approximately €500 million and necessary substitution of staff in some sectors attracts additional costs. This is unsustainable given the severe fiscal pressures that the State continues to face. While the amendments being introduced today are enabling provisions, which will allow the Minister for Public Expenditure and Reform to provide for the new scheme by ministerial regulations, it is the binding recommendations from the Labour Court which define the parameters of the new sick leave scheme. Although 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 contract law. In addition, and in accordance with the Labour Court recommendation, a review of the operation of the new scheme is to be carried out after a full year of its operation. Given the extent of the changes being implemented across multiple organisations and multiple sectors it is important that there is potential to make adjustments to enhance the operation of the scheme in light of operational experience.

Public servants have been aware of the intended changes to the sick leave scheme since the Labour Court recommendation in 2012. For most public servants, the recommendation of the Labour Court as set out in the new scheme will mean a reduction in access to paid sick leave in normal circumstances. The Labour Court recommendation provides for a reduction of access to paid sick leave for non-critical illness from "6 months full pay and 6 months half pay" to "3 months full pay and 3 months half pay". Having exhausted sick leave on both full and half pay, in certain circumstances an individual can apply to be given access to a payment that equates to what they might receive by way of a pension payment were they to retire. This is referred to as "pension rate of pay". I intend to replace this provision with "temporary rehabilitation pay" which is calculated and awarded in the same way and is only paid when an individual has a reasonable prospect of returning to work.

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 of a specified severity 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 has been referred back to the Labour Court for a binding recommendation on a limited number of issues. I understand that recommendation is imminent.

While the introduction of the new sick leave arrangements is very important, it is obviously vitally important that sick absences and workplace rehabilitation are managed properly, both for the benefit of the individual and the organisation. In addition to reducing the financial costs associated with sick leave, long-term absence from work due to sickness is associated with a poor prognosis for return to work. Indeed, the likelihood of successfully returning to work may be reduced after an extended sick leave absence. There is much medical evidence that being out of work for an extended period of time is associated with poor health. In general, rehabilitating people back to work after illness or when they have a disability is likely to benefit their long-term health.

I assure Deputies that the new scheme, as recommended by the Labour Court recommendation in 2012 and which will be provided for in the regulations, will ensure a balanced and reasonable approach to supporting staff while they are ill and unable to attend work, particularly in circumstances where they have a serious illness and medical condition which falls under the critical illness protocol, and at the same time to trying to reduce the significant and unsustainable costs of sick leave which I indicated. It is important to note that in overall terms, the new scheme will provide access to some form of income for public service employees who find themselves out of work due to illness or injury for a period of two years in total.

As we move through the Report Stage of the proposed amendments and the inclusion of the new Part 7A to the Bill, I will deal with each of the new provisions relating to the new sick leave arrangements in detail for the House. The central part of the proposed amendments are contained in sections 58(A) and 58(B), which provide the Minister for Public Expenditure and Reform with the basis for drawing up regulations for sick leave in the public service.

The regulations that will be made under this Bill will provide for access to the amount of sick leave as set out in the binding recommendation of the Labour Court and identify the public service bodies that will be covered by the new scheme. It is my intention to cover all areas of the public service in the first instance. 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 at the start of the new school year in September 2014. This is the approach that makes the most sense for that sector from an administrative perspective as its arrangements relate to the school year rather than the calendar year.

The Permanent Defence Forces will not be included in the new scheme as there are specific issues arising in respect of the nature of the work in the Defence Forces. Notwithstanding this there will, however, be reductions in the access to sick pay in the Defence Forces.

The Defence Forces regulations are the appropriate vehicle for the amendment of their sick leave arrangements.

As I have already told the House, the policy objective, which is consistent with the Labour Court's binding recommendation, is that all of the public service would be covered by the new scheme. In any circumstances where there are bodies that are not explicitly covered by the new regulations, reflecting the complexity of introducing new terms and conditions across multiple and hugely varied sectors and organisations, this can be addressed through an amendment of the regulations in order to widen coverage of the new scheme where that is deemed appropriate in the future.

Although it had been intended to put the scheme in place by 1 January 2014 - I have indicated that publicly - in accordance with the Labour Court's recommendation, this would mean that I would not be able to lay the regulations before the Houses of the Oireachtas. In the interests of transparency and equity, I think that it is important that I do so. On that basis, I am delaying the commencement of the scheme until the regulations have been laid before the Houses of the Oireachtas.

Deputies will appreciate that the State is not in a position to continue to meet a sick leave bill of over €500 million a year. A cost of this magnitude is unsustainable. Nor can the public service be expected to absorb the associated loss in productivity in light of the consequential impact on the provision of public services. The reform of sick leave across the public service as a whole is, therefore, a fundamental reform priority that I set out early in my tenure as Minister for Public Expenditure and Reform. I seek the support of the House for this motion, in the first instance, to provide a legislative basis for a reformed sick leave arrangement for the public service.

I welcome the opportunity to speak on this motion which is to introduce a new sick leave scheme in the public service. The scheme is being included in the Public Service Management (Recruitment and Appointment) (Amendment) Bill 2013. Everybody should accept that the cost of sick leave is a major issue for the Irish taxpayer. The cost of sick leave in the public service is higher than in the private sector and the taxpayer pays the bill. It is important, therefore, that, in line with everything in Irish society, there should be cost reductions in this excessive bill. I do not know where the Minister got his estimate but it is substantial in any event.

Before dealing with the main points I have prepared, I wish to raise some of the points from the Minister's contribution a few minutes ago when he said:

Although 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 contract law.

The Attorney General, therefore, has advised that legislation is required. Towards the end of his contribution, the Minister said that "in the interests of transparency and equity" it is important that he prepare the regulations. He is doing so, however, because the Attorney General said it is the appropriate way to go. I do not accept the Minister's attempt to make a virtue out of the fact that he is doing something, to quote his words, "in the interests of transparency and equity" when he is being forced to do it on legal advice from the Attorney General. The Minister's script is contradictory on that issue because while he says it is in the interests of transparency and equity, he is doing this for sound legal reasons. That is why I said, in the first place, that there should be regulations to deal with this matter.

There is a two year period in total during which people will be able to receive some pay at the end of the temporary rehabilitative payment, which comes in lieu of pension pay. Is that two year period a new figure? I understand the Minister is talking about excluding the Defence Forces from these regulations because these matters will be dealt with under the Defence Forces regulations, and I accept that. However, members of the Garda Síochána understood that they would also be excluded, but I see no mention of it in the Minister's script. They made a strong case for exclusion and some of them understood that their case had been accepted.

In essence, the arrangements before us are to make changes to the sick leave mechanism across the public service from six months of full pay to six months on half pay. After that period, people will go on to what was known as the pension rate of pay, but is now to be called rehabilitation pay. There is general support for this measure which aims to reduce costs. One way of achieving this is to reduce the amount of payments from six months of full pay to three months on full pay and three months on half pay. That is a major, significant and substantial change. I support the general principle involved. It would be less than honest, and it would be unfair to the Irish taxpayer, if I were to oppose the principle of some reduction in the public sector sick pay bill. Every private company is doing it, so there is nothing new in this. Nobody in Irish society is exempt from trying to make some cost savings, so I support the principle involved. These savings for the taxpayer are to be achieved by the change from six months to three months. However, it is important that a small number of limited, exceptional, critical-illness cases can still be dealt with in the system. I will revert to that point later.

I wish to thank the Minister's departmental officials for the excellent briefing they provided to me on this matter on Tuesday afternoon. I will now deal with some of the reasons that I have difficulties with the motion before us. First of all, as the Minister has said, the issue is going to the Labour Court next week over some minor aspects. However, this was before the Labour Court ruling on 19 July 2012 when Mr. Kevin Duffy, the court's chairman, signed the agreement. At the time, Mr. Duffy said that subject to the necessary legislation being enacted, the proposals and recommendations should take effect from 1 January 2014. The Minister has had 18 months to get his act together and get this measure in place in a more open and transparent way through the Oireachtas, instead of bringing in a motion at this late stage. Clearly, this motion is not in order with the original legislation. It is rushing things to come here at this stage, a week before Christmas, with this legislation.

I told the Deputy about this in September.

Yes, I accept that but we have all known about this issue since 19 July 2012. I recall that circulars were issued across Government Departments in September 2012.

I have not been idle since then.

My point is that the Minister is only coming here now, 18 months after the Labour Court ruling. The original intentions in going to the Labour Court were good, but the Minister has mismanaged the situation in the past 18 months. There is confusion about aspects of the measure and there have been delays. In addition, the Labour Court will sit next week on specific items relating to this matter. Some 18 months ago, the Labour Court recommended that the proposals should take effect from 1 January 2014. In addition, I tabled a parliamentary question on this matter on 28 November, which is only two weeks ago. In his written reply, the Minister said that the finalisation of the protocol was recently the subject of conciliation talks at the Labour Relations Commission, which were aimed at securing agreement as soon as possible to facilitate the introduction of the new sick leave arrangements from 1 January 2014. The Minister put that on the Dáil record only a fortnight ago.

When these amendments were being announced last week, the briefing note from the Government Whip's office to the Opposition Whips was prepared on 4 December. Just last week, the Government Chief Whip told us that the new measures were being introduced on 1 January 2014. He said they were a key deliverable of the Government's reform programme.

The 1 January 2014 date has been announced three times. We had it as recently as last week from the Chief Whip's office and from the Minister's written reply two weeks ago, yet we now find that this is not the case. We are now told that the Labour Court will be dealing with the issue next week. The Minister expects us to pass legislation today in respect of rules and conditions on sick pay for 290,000 public servants and their families while these matters have yet to be decided in the Labour Court next week. Not only is it disrespectful to the Labour Court for us to be doing this today, before it has finished its considerations, but it is also disrespectful to ask the Houses of the Oireachtas to pass regulations which the Minister cannot be specific about until the Labour Court has fully adjudicated.

I understand it is dealing with issues such as critical, disability, pregnancy-related and mental health illness.

On mental health, the opening paragraph of the Department's critical illness protocol, to which the Minister, Deputy Howlin referred, states: "Therefore, when an individual becomes incapacitated as a result of critical illness or serious physical injury and has supporting medical evidence.....". While "physical injury" is specifically mentioned in the protocol no mention is made of mental illness. I do not believe adequate provision is being made in this regard. It would have been far more appropriate to be more inclusive in the terminology dealing with this issue. It is no wonder, when this is the line being taken by the Department, that this matter is back before the Labour Court.

Neither the Minister nor I know what will happen in the Labour Court next week. The Minister in ramming the legislation through this House during the next few hours is asking us to support something in regard to which we do not yet know the outcome. I have tabled an amendment to the Bill to the effect that some of these matters be addressed by way of regulation. As everybody knows a regulation does not come into effect until 21 days after it has been laid before the Houses. I acknowledge that the Minister has accepted the principle of my amendment and has tabled his own amendment in this regard. The Government Chief Whip in saying last week that the scheme would come into effect on 1 January next obviously does not understand the regulatory process. The Minister in reply to a parliamentary question tabled by me on 28 November also said this scheme would come into effect on 1 January, which means he thought he could rush this through by way of circular without the need for regulation. He now knows this cannot be done. The regulations cannot come into effect until 21 sitting days after they had been laid before the Houses, which equates to seven weeks in terms of Dáil sittings. If they are not published until some time in the New Year it will be well into March before the scheme comes into effect.

I do not have a problem with the date on which the scheme will come into effect. However, I do have a problem with the fact that up to recently the Department of Public Expenditure and Reform and parliamentary system were indicating it would come into effect on 1 January next when they should have known that this was physically and legally not possible, which meant everybody was being led astray. As the scheme will not come into effect on 1 January next there is no rush in terms of the passage of the legislation. The Minister should await the outcome of the Labour Court process, at which time we will all know the full implications in this regard. I ask that the Minister defer this motion and the legislation until we know the outcome of the Labour Court process. I cannot support the hamfisted manner in which the Minister is pushing this through.

The Minister has made a virtue of pre-legislative scrutiny. There has been no pre-legislative scrutiny on this matter which affects sick pay entitlements for 290,000 public servants and their families. The Department should have engaged with Members on it in advance of its publication and representatives of the public sector trade unions and of the taxpayer who is paying for this should have come before the a committee to brief us on it. This is another example of rushed legislation in terms of the few hours being allowed for debate on it. This may explain the reason this legislation was not gender, equality or poverty proofed. I would expect nothing more from a Labour Party Minister who supported the decision earlier this year in the budget to reduce maternity benefit and to, for the first time, tax maternity benefit. The Government is now attacking low paid workers in the public service, in particular women.

We are not attacking them.

Women in the public sector are being attacked in that some of these measures will not impact on male workers. We all know that there are far more women employed at the lower pay grade rate in the public sector. The measures being introduced will have a greater impact on people on lower incomes. This legislation has not been gender proofed. The Minister would have noticed this had there not been a rush to have it passed.

The legislation provides that pay in respect of a person on half pay should not be less than the social welfare rate of €188 per week. However, there are many women in the public service who are now the sole bread winner within households. The social welfare entitlement of a woman not working in the public sector, who is the sole bread winner and whose husband has lost his job and may be back in education and has three children, is €402 per week yet provision is made in the legislation for only €188 per week in this regard. Will the Minister guarantee that the wage of a family, the main bread winner of which is a public sector worker who is on half pay will be equivalent to the social welfare payment to which the family would be entitled? The legislation provides only for the single rate of €188. Under the legislation a person in receipt of this money will be required to provide signed certificates to his or her employer. This measure is anti-women.

Another issue not addressed in the legislation is pregnancy-related illness. A woman who has had an illness in the past may suffer a pregnancy-related illness. As only women can have a pregnancy related illness, they will be hit by the reduction to half pay despite that the illness may be no fault of their own. This measure hits only women. This is a further example of a lack of gender proofing of the legislation. The legislation will affect low paid workers and women. The Minister should have considered this measure in greater detail.

I also object to the retrospection aspect of the sick leave arrangements. The Minister is aware that when it comes to sick leave one is counting backwards. While I understand the need for some element of retrospection I do not agree with what is provided for in the circular issued across the public sector which states: "Because we calculate sick leave on the basis of a four year rolling period, i.e, counting backwards from the latest day of absence, the changes to be introduced on 1 January 2014.....". In counting backwards retrospective effect is being given to this measure. The original proposal was more reasonable. I was prepared to support the Minister in that regard. Fianna Fáil also put forward proposals in regard to these issues in its budget submission last year.

I ask that the Minister wait until after the Labour Court has issued its ruling to deal with the legislation. It has been already delayed for more than a year and half but is now being rushed through the Dáil. The 290,000 public servants and their families deserve better. There was no pre-legislative scrutiny on this matter. It is possible to delay debate on the Bill because the regulations cannot come into effect until March. The more I examine the detail of the legislation the more I believe it has the potential to be anti-women and anti-low paid workers. It is blatant discrimination, as evidenced by the examples I have given. The measures being introduced under the legislation should have been given greater consideration. I ask that the Minister go back to the drawing board on it. I will be opposing this motion.

The rushed manner in which this measure is being introduced has been already referred to. In essence, it is a substantive legislative measure in its own right. The Minister is correct in saying that he gave us notice in September that he would be bringing this matter forward. However, we did not envisage it would be done at the tail-end of this session in such a hurried and rushed fashion. Given the nature and novelty of the legislation, it deserves proper Committee Stage scrutiny and consideration.

There is currently no legislation on the books in regard to the sick pay regime. As such, this is a new departure, one which, as in the case of the financial emergency measures in the public interest, FEMPI, legislation places substantial new powers in the hands of the Minister. The legislation will have serious consequences for public sector workers and in terms of industrial relations and the power of negotiation and collective bargaining across the public sector.

I do not think anybody disagrees that savings must be made in respect of the sick leave bill in the public sector. The Minister will be aware it was noted in the LRC recommendations and agreement that the unions understood and subscribed to the envisaged €25 million savings to be achieved in this area. It is important as part of this debate to say that it was their view, and reasonably their view, that savings of this magnitude could have been achieved under the current scheme by way of, as reflected in the recommendations, "more active control".

I share the concern in regard to the critical illness protocol. It is worrying that disability, mental health and pregnancy-related illness are not specifically mentioned in this regard. I appreciate that pregnant workers are protected by other legislative tools. None the less, it is critical in respect of sick leave arrangements that because women workers can become pregnant several times in the course of their working lives, long-term illness and recurring illness are captured in that protocol.

Debate adjourned.
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