Opening statement by Dr Laura Bambrick, social policy officer, Irish Congress of Trade Unions to the Joint Oireachtas Committee on Enterprise, Trade and Employment
24th November 2021
Chair, Deputies, Senators,
On behalf of the Irish Congress of Trade Unions I would like to thank members of the Committee for their invitation to input into the pre-legislative scrutiny of the Sick Leave Bill 2021, which provides for statutory sick pay. I am accompanied by my colleague, Liam Berney, industrial relations officer.
Firstly, Congress wishes to acknowledge the work of DETE officials and the collaborative approach taken throughout on the design of the new scheme, including by this Committee.
In the brief time I have available for my opening remarks, I will focus on key outstanding issues for Congress and highlight differences between what is provided for in the Draft Bill and what is indicated as intended in the Draft Scheme of the Sick Leave Bill.
Section 2 of the Bill provides the meaning to be ascribed to terms used in the body of the Bill. Like all employment legislation, the scope of what is provided for extends only to those employed on a ‘contract of employment’. This definition of that term, for the purposes of this legislation, is taken from the Terms of Employment Information Act 1994. This is a narrow definition and confines the scope of the Act to those employed on a conventional contract of service. Congress recommends a better and broader definition of a contract of employment is that provided by the National Minimum Wage Act 2000 and the Payment of Wages Act 1991. Both definitions are much wider than that now proposed. Paragraph (b) of both definitions extends to atypical forms of working arrangements and is more akin to the notion of ‘worker’ in European law and the definition of ‘worker’ in UK law.
Section 5(2) of the Bill provides employees with an entitlement to up to three days of paid sick leave per year. While Congress acknowledges it is the clear intention of the scheme design that after 12 months the three days will automatically move to five, then seven and 10 days in 2025, we are concerned that three days, not ten will always be written into the legislation.
Section 5(5) of the Bill provides that the service qualification for entitlement to statutory sick leave is 13 weeks continuous services. Head 6(2)(a) of the Draft Scheme provides that the entitlements created by the Act will commence when an employee has completed six months continuous employment. Both cannot be right. Congress recommends the qualification period be kept to a minimum so as not to stall labour force mobility or create a perverse incentive for employers to dismiss workers before they come into qualification.
We are further concerned that the Bill provides that the service qualification be based on ‘continuous’ service. Certain groups of workers routinely have their service broken by their employer. One example to illustrate this point are the thousands of early years professionals working in ECCE (pre-school) services on 38-week contracts forced to sign-on social welfare during the summer. Congress recommends the wording be deleted or amended to ensure such workers do not have to build up their entitlement year after year and are repeatedly left without coverage for months on end.
Section 5(8) of the Bill provides all sick leave must be certified by a registered medical practitioner. While the requirement to have the sickness certified by a doctor is common practice in statutory sick leave schemes throughout Europe, Ireland is unusual in that workers have to pay for primary healthcare. Very few people in employment are covered by a Medical Card or GP Visiting Card. The Healthy Ireland Survey Wave 5, commissioned by the Department of Health, shows an estimated 14.6% of people (1 in 7) aged 18-64 working for payment or profit (i.e. employees and self-employed) hold a Medical Card, while a mere 3.6% hold a GP Visiting Card. In recognition that the out-of-pocket expense for a GP visit will create a barrier for workers exercising their new right to paid sick leave, Congress recommends the Bill includes provision for limited periods of self-certified sick leave. Self-certified sick leave typically costs about 1/10th of the total cost of public service sick leave.
Section 7(2) of the Bill merely provides that the daily rate of statutory sick leave, and the maximum daily amount payable, are to be prescribed in regulations to be made by the Minister. However, Head 7(1) of the Draft Scheme provides that the daily rate is to be 70% of the employee’s daily rate subject to a maximum of €110 per day. This can be varied by the Minister by regulations made under the Act. Congress recommends that the legislation requires the Minister to consult with the social partners annually on the adequacy of the daily rate, income cap, and income floor (a minimum guaranteed rate for low-income workers) to ensure adequacy, and to report to the Oireachtas on the outcome of this consultation.
Section 9 of the Bill provides, in effect, that the obligations imposed on an employer are not applicable where the employer provides employees with a sick pay scheme which is more favourable than that prescribed by the Act. Many contractual sick pay schemes provide for ‘waiting days’; typically, that no payment is made for the first three days of illness. Congress recommends that rather than excluding the application of the legislation completely where more favourable contractual schemes apply, that instead obligations under the Act will not apply in respect of any day on which the employee is entitled to be paid by his or her employer under the terms of a more favourable sick leave scheme.
Section 10 of the Bill provides for the granting, by the Labour Court, of an exemption from the requirements of the Act. This is a now-standard provision. Congress recommends that in such circumstance the employee is fully compensated from the Social Insurance Fund and a debt is raised against the employer in the same way as when a payment is made under the Redundancy and Insolvency Payment scheme with employers that are still trading.
Having convinced Government of the necessity to introduce statutory sick pay, the priority for Congress is now to ensure that the new scheme will protect workers’ health and income and bring a basic employment right in line with European norms. It is this that informs our recommendations to the Committee today.
I would like to thank you for your attention and we are happy to take any questions.
