The situation at present when a woman has to leave her job to have a baby is that there is no guarantee that she will get her job back. Further, she will usually receive much less than her normal take-home pay. That is a situation which could not be allowed to continue. The Bill now before the House, in conjunction with legislation to be introduced later by the Minister for Social Welfare, remedies that situation for good. I believe it is an important piece of social legislation and represents a further major advance in improving the position of women in our society.
Certain provisions giving some protection to expectant working mothers have, it is true, been added to the Statute Book. First of all, in labour legislation, relevant protection is contained in the Unfair Dismissals Act, 1977, the Employment Equality Act, also passed in 1977, and the Redundancy Payments Act, 1979. Under the Unfair Dismissals Act a pregnant employee is entitled to protection against unfair dismissal, subject to certain conditions, solely on grounds of her pregnancy or matters connected with it. The Employment Equality Act makes an exception to its general prohibition of discrimination on the basis of sex or marital status by allowing the employer to give special treatment to an employee in the case of pregnancy or childbirth. The Redundancy Payments Act provides that an employee's continuity of service is not broken where she is absent from work for a period of up to 13 weeks during which she gave birth to a child. Secondly, the existing social welfare code entitles women who satisfy the relevant contribution conditions to receive maternity allowance for a period of 12 weeks.
However well-intentioned the provisions in these Acts are, they cannot be taken as having secured maternity protection for women in employment on a statutory basis. The three essential and inter-related elements of such protection are, first, the right to take maternity leave; secondly, the right to return to work afterwards; and, thirdly, the right to job security while absent on maternity leave.
I am, of course, aware of the existence of maternity leave schemes in both the public and the private sector. A growing number of such schemes have been negotiated, individually or collectively, on a voluntary basis. However, I am convinced that measures designed to ensure essential protection for the safety, health and welfare of workers should not be left exclusively to collective bargaining. Action from the Government is needed as well. I am therefore promoting this Bill to entitle female employees to take maternity leave and to return to work afterwards.
Particular care has been taken to consult both sides of industry fully and medical advice on certain aspects of the Bill both before the development of initial proposals for legislation and during the preparation of the Bill now before the House. Preliminary views of the Irish Congress of Trade Unions and the Federated Union of Employers were considered over a year ago and since then several meetings with representatives of each body have taken place. In addition, the views of the Council for the Status of Women were borne in mind. I am confident, therefore, that the provisions of the Maternity Protection of Employees Bill, when taken in conjunction with the new maternity allowance scheme which my colleague, the Minister for Social Welfare, will be presenting to the Dáil within a week, represent a major step forward in the social conditions and the welfare of expectant working mothers.
The two vital sections of the Bill before the House are section 8, which entitles an employee to take a minimum period of 14 weeks' maternity leave from her employment; and its corollary, section 20, which entitles her to return to work with her employer after her baby is born. The Bill is designed to ensure the greatest possible flexibility in the operation of both of these sections. As regards the allocation of the minimum period of maternity leave under section 10, generally speaking an employee must begin her maternity leave not less than four weeks before the expected week of birth of the baby and return to work not less than four weeks after the actual birth. The remaining six weeks may be taken either before or after the birth, in accordance with the employee's wishes. In this way I would hope that the employee may be guided by her medical advisers as to when it would be advisable for her to stop working before her confinement, taking the various relevant factors into consideration. I should mention, too, that the provisions in sections 12 and 13 of the Bill have been tailored to take account of the possibility of the baby arriving later or earlier than expected.
Should an employee wish to take more than 14 weeks' maternity leave — because, for example, she is breast-feeding her baby — section 14 of the Bill affords her the choice of taking additional maternity leave of up to four weeks. Once the Bill has been enacted, FUE and ICTU will be consulted about the making of regulations under section 16 which will permit the employee to take time off from work for the purposes of ante and post-natal care.
There are, I should point out, certain differences between absence from work on maternity leave and on additional maternity leave. For one thing, while an absence on maternity leave may attract payment under the new maternity allowance scheme, an absence on additional maternity leave will be unpaid. Secondly, under section 15, an employee's employment rights will be preserved during her absence on maternity leave, whereas during additional maternity leave those rights are, so to speak, "frozen". Neither pregnancy nor childbirth can be termed illnesses so it would not be justifiable to treat them as such. Section 15 prohibits maternity leave or additional maternity leave from being reckonable against the employee's entitlement to sick leave or to other leave, such as annual leave.
I appreciate that appropriate medical care, before and after childbirth, plays a large part in protecting the health and welfare of both mother and child. Under regulations which I propose to make in accordance with section 16 of this Bill a pregnant woman will be entitled to time off from her work to attend her doctor or clinic and after her baby is born she may have time off to attend for post natal check-up.
At this point I feel it appropriate to emphasise that great care has been taken throughout the Bill to facilitate the employer in the smooth functioning of his business. For that reason the employee is required to keep her employer fully informed at all appropriate stages of her intentions as regards the exercise of her entitlement under the Act. For instance, under sections 9 and 14, the employee must inform her employer at least four weeks in advance of her intention to take either maternity leave or additional maternity leave. Her notification in respect of maternity leave must be accompanied by a medical certificate confirming her pregnancy and indicating the expected week of her confinement. Her right to return to work is subject to four weeks' prior notification under section 22, with the further requirement that she must confirm her intention to return two weeks before her leave expires. Confirmation of her original notification to the employer is required in case an employee, even where she had fully intended to return to work, is prevented from doing so by unforeseen circumstances.
Complementary to the right to take maternity leave is the right to return to work afterwards. Under section 20 an employee is entitled to return to work with her employer in a job which is the same as, or equivalent to, the one which she held immediately before her absence on maternity leave. It is only where an employer does not find it reasonably practicable to re-instate her in such a manner that he may, by virtue of section 21, offer her re-engagement in a suitable alternative job, under terms and conditions not substantially less favourable to her than those of her original job.
Under the Bill, the right to take maternity leave and to return to work afterwards may be freely exercised, provided the employee complies with the notification procedures I have mentioned. The granting of these rights would be nullified if the employer were free to penalise an employee for duly availing herself of these. Consequently, section 17 invalidates any termination of employment or suspension given while the employee is absent from work in accordance with the legislation and due to expire during or after her absence; section 18, extends, by the period of the employee's absence, any notice of termination of employment or suspension effected before the employer had received the prior notification required under the legislation; and sections 25 and 27 amend the Unfair Dismissals Act for the purpose of deeming it an unfair dismissal if the employee was dismissed for exercising her rights under this legislation, and to enable either the employee or her employer to have recourse to a rights commissioner or to the Employment Appeals Tribunal in the event of a dispute about entitlement under the legislation.
The Maternity Protection of Employees Bill does not deal with the question of pay during maternity leave. As I have indicated, the social welfare payment aspect will be dealt with by the Minister for Social Welfare in the legislation giving effect to the new maternity allowance scheme being prepared by his Department.
The intention is that an employee in insurable employment will receive an overall weekly amount (including the value of any tax refund) corresponding to her average net take-home pay, during her absence on maternity leave but not during the additional four weeks leave allowed for under section 14 of this Bill. My colleague will be supplying Deputies with the details of the scheme shortly. Bearing in mind that it is the Government's intention to bring both pieces of legislation into operation by 6 April 1981, I commend the Bill to the House and urge Deputies to give it a speedy passage.