I move: "That the Bill be now read a Second Time".
The Parental Leave (Amendment) Bill 2004 amends the Parental Leave Act 1998 to implement a Government commitment in the Sustaining Progress social partnership agreement. This commitment is to strengthen the parental leave scheme in line with the agreed recommendations of the social partners arising from the working group on the review and improvement of the Parental Leave Act 1998.
The EU parental leave directive was transposed into Irish law by the Parental Leave Act which came into force almost seven years ago on 3 December 1998. The principal objectives of the directive, which was adopted in June 1996, are the reconciliation of work and family life and the promotion of equal opportunities and treatment in employment between men and women. The directive incorporates and implements a framework agreement negotiated between the social partners at EU level. While the framework agreement set the broad parameters for parental leave, much of the detailed arrangements were left to the discretion and interpretation of individual member states. So long as the minimum requirements of the directive are met, it is left to member states to determine issues such as whether the leave is paid or unpaid, what pattern of leave is to be allowed, the maximum age of the child and matters relating to social security.
The directive provides that a minimum of three months leave should be available to men and women workers until a child reaches a given age up to eight years, to be defined by member states. It also provides that the leave should be non-transferable between parents. Employees who avail of parental leave must be guaranteed a right to return to work and protected against dismissal. Parental leave is distinct from maternity leave, which is available as a statutory right to mothers consequent on pregnancy and childbirth, and paternity leave which is not a statutory entitlement but which many employers grant to fathers at the time a child is born.
In addition to providing for parental leave, the directive provides that workers must be given the right to force majeure leave. Force majeure leave is time off which is necessary for urgent reasons owing to the injury or illness of an immediate family member. Such leave is only available in circumstances where the presence of the employee is required at the place where the family member is ill or injured.
The Parental Leave Act 1998 provides an individual and non--transferable entitlement to each parent of 14 weeks unpaid leave from work per child. The leave is solely for the purpose of caring for the child and must be taken before the child reaches five years of age, except in certain circumstances in the case of an adopted child. The Act also provides an entitlement to limited paid force majeure leave.
In accordance with section 28 of the Parental Leave Act 1998 and a Government commitment in the Programme for Prosperity and Fairness, a working group was established in 2001 to review the operation of the Act. The working group was chaired by my Department and comprised representatives from other Departments and agencies as well as the social partners.
The report of the working group was published in April 2002 and is available on the Department's website. Also included in the report are summaries of research commissioned by the working group on uptake of parental and force majeure leave and on an attitudinal survey of employees, employers and trade union representatives. The working group identified 18 issues for consideration in the course of the review. These included paid parental leave, paternity leave, the duration and manner in which parental leave may be taken, age limits, broadening the entitlement and several issues around force majeure leave. The group reached consensus on a number of these issues and made ten recommendations. The more important of these were to increase the maximum age limit of an eligible child, to broaden the entitlement to include persons acting in loco parentis of an eligible child, to introduce a statutory entitlement to take the 14 week parental leave in separate blocks of a minimum of six continuous weeks each and to allow an employee, who is unable to care for the child, on becoming ill — while on or about to commence parental leave — to suspend the period of leave.
The 2002 An Agreed Programme for Government included a commitment to improve the parental leave scheme in line with the recommendations of the social partners. This commitment was further developed in the context of the 2003-05 Sustaining Progress partnership agreement whereby the agreed parental leave package of recommendations made by the working group was incorporated into a series of workplace legislation, codes and programmes to be implemented during the course of the agreement.
Implementation of the majority of the agreed recommendations of the working group requires the amendment of the existing legislation. These amendments will be implemented through the enactment of this Bill. I want to take a few minutes to outline some of the key elements of the Bill.
As I mentioned earlier, the existing scheme provides that parental leave is available until a child's fifth birthday. In the context of its review of the Act, the working group agreed on raising the upper age limit to six years. This was further improved upon in the course of the Sustaining Progress negotiations where the social partners and the Government agreed to raise the upper age limit to eight years. The extension of the maximum age limit of an eligible child to eight years is provided for in section 2 of the Bill and will offer working parents a longer timeframe within which the leave might be taken. Section 2 includes a new provision to increase the maximum age limit to 16 years in the case of a child with a disability.
The Bill implements the working group's recommendation to extend the parental leave entitlement to persons in loco parentis of an eligible child. Many children in Irish society are effectively cared for by persons not their natural parents. A number of categories of persons who actively parent are not entitled to parental leave under the existing legislation. These include long-term foster parents, a partner of the natural parent of a child - where the natural parent may be divorced or separated and has formed a new relationship through remarriage or otherwise - and other persons in loco parentis. The Bill also provides for the extension of the parental leave entitlement to adopting parents. Under the existing legislation parental leave is available to adoptive parents, that is, where an adoption order has been made and is in force. However, this excludes adopting parents who have a child placed in their care but in whose favour an adoption order has not yet been made.
Many months may elapse between placement and adoption during which time an adopting parent is not entitled to parental leave. During this critical early period time off work for bonding with the adopted child may be most required. This anomaly is addressed in section 2 of the Bill. The inclusion of adopting parents also brings the parental leave provisions into line with the adoptive leave legislation which grants adoptive leave from the date of placement rather than from the date the adoption order is made.
The Bill also provides employees with a new entitlement to choose to take parental leave in two separate blocks, each consisting of a minimum of six continuous weeks. The two block entitlement is particularly important because it will allow parents to opt to use their parental leave to care for children during the long school break over several summers. This will improve the position for many employees who are limited at present by their employers to availing of their statutory parental leave entitlement in a single 14 week block. It will still be possible for an employee to avail of the leave in shorter periods of weeks, days or even hours over an extended period if the employer agrees and, in many instances, particularly in the public sector, a large degree of such flexibility is already on offer from employers.
As I noted, the purpose of both the parental leave directive and Parental Leave Act 1998 is to enable men and women workers to take time off work to take care of their children. As matters stand, however, no express provision is made in either the directive or Act to deal with a circumstance in which an employee on parental leave becomes ill and is unable to continue to care for his or her children. The working group was of the view that where a parent on parental leave becomes unable to care for a child on account of illness, it may reasonably be concluded that the parent is unable to avail of the parental leave entitlement and should be able to benefit from sick leave for the duration of the illness.
Legal advice concluded that a legislative amendment was required to clarify the position regarding the effect of sick leave on the parental leave entitlement. The working group recommended the amendment of the Act in accordance with the legal advice received. This amendment is provided for in section 5, which provides that an employee who falls ill when about to commence or while on parental leave and, as a result, is unable to care for the child may postpone or suspend the parental leave for the duration of the illness following which period the parental leave recommences. Once the leave is postponed or suspended, the employee's absence from work is treated in the same manner as any other absence from work due to sickness and the employee may benefit from whatever sick leave arrangements are available under his or her contract of employment, including sick pay or disability benefit.
I will now address the specific provisions of the Bill. Section 1 is a standard interpretation section. As I indicated, section 2 implements three recommendations of the working group by providing for an increase in the maximum age limit of an eligible child from five years to eight years, making a new provision to increase the age limit to 16 years in the case of a child with a disability and extending the parental leave entitlement to persons in loco parentis and adopting parents of an eligible child. New definitions are provided in this section including “adopting parent”, “disability” and “relevant parent”. These definitions are required to take account of the extension of the parental leave entitlement under this section.
Section 3, to which I referred, provides employees with an additional alternative entitlement in section 7 of the principal Act to take parental leave in separate blocks. Each block must consist of a minimum of six continuous weeks at not less than a ten week interval unless the employer and employee agree to a shorter interval.
Section 4 amends section 8 of the principal Act to provide for consequential amendments to the notification requirements of the Act. These arise from the new provisions in the Bill to extend the parental leave entitlement to persons in loco parentis and adopting parents and take parental leave in separate blocks. Provision for an employee to postpone or suspend the parental leave for the duration of a period of sickness is made in section 5.
Section 6 amends and extends section 11 of the principal Act to provide for consequential amendments to the postponement provisions arising from new provisions in sections 2 and 4.
Section 7 provides for an amendment to section 15(1)(c) of the principal Act for consistency with similar provisions in the Maternity Protection (Amendment) Act 2004 and Adoptive Leave Bill 2004. Both the Maternity Protection (Amendment) Act and Adoptive Leave Bill contain provisions necessary to comply with Directive 2002/73/EC on the implementation of the principle of equal treatment for men and women in access to employment, vocational training and promotion, and working conditions. These provisions provide that on return to work on the expiration of a period of maternity, adoptive or parental leave, an employee is entitled to return to the same job with the same contract of employment on terms and conditions which are no less favourable and to benefit from any improvement in working conditions to which the employee would have been entitled had he or she not been absent from work.
Section 8 applies another element of the 2002 directive to section 16(2) of the principal Act. This section provides that in the event that it is not practicable for an employee who is entitled to return to work following parental leave to resume the same work and suitable alternative work is offered, the employee is entitled to return to an equivalent post on terms and conditions which are no less favourable and to benefit from any improvement in working conditions to which he or she would have been entitled had he or she not been absent from work.
Provision is made in section 9 for the protection of employees from penalisation by way of dismissal, unfair treatment or unfavourable change in their conditions of employment for proposing to exercise or having exercised an entitlement to parental leave or force majeure leave.
Section 10 makes provision to empower the Equality Authority to prepare statutory codes of practice on parental and force majeure leave for the approval of the Minister for Justice, Equality and Law Reform. The statutory code will be admissible in evidence in any proceedings before a court, the Employment Appeals Tribunal or a rights commissioner. Any provision of the code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question. Section 11 contains standard provisions dealing with the Short Title and citation provisions.
The Bill has attracted critical comment for not making provision for paid parental leave. As I indicated, the commitment made by the Government in Sustaining Progress is to implement the changes to the parental leave scheme agreed by the social partners. The arguments both for and against paid parental leave are strong and the merits of each in terms of employment and growth were enunciated in some depth in the report of the working group. In the absence of social partnership consensus on the question of paid parental leave, the Government is not prepared to propose legislative change which one side of social partnership cannot accept.
The social partnership approach has already resulted in a number of significant developments, through statutory and non-statutory initiatives, in improving work-life balance options for employees. It is now widely recognised that the work-life balance agenda cannot be progressed satisfactorily either at international or national level without the inclusion of the social partners and real change will not and cannot be effected without them. It must be acknowledged that progression of the work-life balance agenda can only be successfully achieved through striking the delicate balance between improving on existing measures at the level of enterprise while remaining economically competitive. It is vital, therefore, that we create and maintain the economic conditions which will ensure quality employment opportunities and that we do not introduce new initiatives without taking cognisance of their effect on our competitiveness in the short and long term.
Given our acknowledged success in building and maintaining a strong economy in recent years, it would be unwise and damaging to the integrity of the partnership process to introduce a measure such as paid parental leave without the full agreement of all the stakeholders involved. In the final analysis advancing the work-life balance agenda presents a complex set of challenges for policy makers, for the Legislature and for employers and employees. The reality is that these challenges, both social and economic, do not necessarily dovetail into situations acceptable to all stakeholders.
Critics of the Bill have compared the parental leave scheme here with provisions in other EU member states. Parental leave is a relatively new concept in Ireland. The provisions of the Parental Leave Act 1988 came into effect seven years ago, while countries such as Sweden have had some form of parental leave since 1974. When comparing the parental leave provisions in Ireland with those available in Sweden and the other Nordic countries it also is important to take into account the socioeconomic differences. Parental leave in the Nordic countries is part of a package of social welfare measures funded by high taxation. Rather than take this approach the Government has chosen, with outstanding results in terms of employment and growth, to implement a low tax regime with the result that working parents are well supported through our taxation and child benefit scheme.
Our legislative framework for parental leave provides the same opportunity for employees, both men and women, to avail of parental leave. It is a matter for every employed parent, male or female, to decide for himself or herself whether he or she wishes to avail of the entitlement depending on his or her individual and family circumstances.
The Parental Leave (Amendment) Bill 2004 is the third and final component of a significant package of statutory work-life balance measures to which the Government is committed under Sustaining Progress. Already the recommendations of the working group on the review and improvement of the maternity protection legislation have been implemented in full by the Maternity Protection Act 2004 which was commenced on 18 October last. Its provisions strengthen and enhance the statutory framework for pregnant mothers and women who have recently given birth and those who are breast-feeding.
Improvements to the adoptive leave legislation are also well advanced, as we saw here yesterday. The Adoptive Leave Bill 2004 amends the Adoptive Leave Act 1995 in order to implement several recommendations of relevance to adoptive leave made by the Maternity Protection Working Group. That Bill passed all Stages in the Seanad last year and I was pleased to have its passage through the Dáil completed yesterday.
The Parental Leave (Amendment) Bill 2004 fulfils the Government's comments in Sustaining Progress and the programme for Government to strengthen and improve the existing parental leave provision. I look forward to the Deputies' contribution and I commend the Bill to the House.
