Paternity Leave and Benefit Bill 2016: Report and Final Stages

We will now deal with the amendments. All Members can speak twice on each amendment or group of amendments and the Member who moved the amendment retains the right to reply, but Deputies are familiar with these rules.

I move amendment No. 1:

In page 5, lines 7 and 8, to delete “adopting mother, sole male adopter” and substitute “relevant adopting parent”.

I propose to discuss amendments Nos. 1 to 6, inclusive, 9 to 13, inclusive, 16 to 24, inclusive, 27 and 28 together.

The proposed amendments are necessary to give the right to paternity leave to male same-sex couples that adopt. The intention of the Bill is to cater for same-sex couples on the same basis as any other couple. However, due to the interaction between the Marriage Act 2015, the Children and Family Relationships Act 2015, in particular section 177 which has not yet been commenced, the Adoptive Leave Act 1995, which provides for adoptive leave for an adopting mother only, and the Adoption Acts, in respect of which there is an amending Bill before the Oireachtas, there is a technical difficulty in the Bill, as published, regarding same-sex male couples who adopt that needs to be resolved. The idea is very simple. Paternity leave will be available to male same-sex couples who adopt. However, the execution of that idea requires, as Deputies will note, quite a few amendments to resolve consequential and cross-referencing issues to which the core amendments give rise in the Bill.

Amendment No. 1 proposes to delete "adopting mother, sole male adopter" in the Long Title of the Bill and substitute "relevant adopting parent". Amendment No. 2 proposes the introduction of a stand-alone definition of "day of placement" that includes the term "relevant adopting parent" and it deletes the reference to the day of placement having the same meaning as it had in the Act of 1995. Amendment No. 3 proposes the inclusion of the definition of a "relevant adopting parent" in section 2, which is the interpretation section, regarding a child who is or is to be adopted. Amendment No. 4, in the same section, is one of the substantive amendments required. It proposes to include the definition of "relevant parent" in the same section, which is the spouse in a married adopting couple of the same sex who was chosen by that couple to be the relevant parent for the purposes of the Act. Amendment No. 5 in the same section proposes to delete "adopting mother, sole male adopter" and substitute "relevant adopting parent" in the definition of "surviving parent" with respect to a child whose relevant parent has died. Amendment No. 6 is one of the key amendments required. It proposes to delete "adopting mother, sole male adopter" and to substitute "relevant adopting parent" in the section in which entitlement to paternity leave is created. It therefore gives a right to adopting male same-sex couples to paternity leave.

Amendment No. 9 proposes to include in the Act a provision prohibiting a person from availing of both paternity leave and adoptive leave. This could arise in the case of a male same-sex couple and is a consequential amendment of the substantive amendments. Amendment No. 10 is a technical amendment which flows from the substantive amendments and makes a necessary correction to a cross-reference within the Bill. Amendment No. 11 proposes the insertion of the new definition of "relevant parent", as amended by amendment No. 4, in the new section relating to notification of employer of intention to take leave. Amendment No. 12 is again consequential on the substantive amendments. It is a technical amendment that ensures consistency with the language used elsewhere in the Bill and is being introduced on the advice of the Office of the Parliamentary Counsel. Amendment No. 13 proposes to introduce a further provision regarding the commencement of transferred paternity leave following the death of a relevant parent. This provision ensures male same-sex couples have the same entitlement to transferred paternity leave as other couples. As well as carrying the necessary amendments through regarding paternity leave, Part 5 of the Bill, namely, sections 30 and 31, in turn need to be amended to ensure the same result regarding paternity benefit. If accepted, amendments Nos. 6 to 24, inclusive, will therefore achieve this outcome.

Amendment No. 16 provides that "‘day of placement’ has the same meaning as it has in the Act of 2016;", that is, the proposed Paternity Leave and Benefit Act. Amendment No. 17 proposes the inclusion of the definition of "relevant adopting parent" in the case of a child who is or is to be adopted. Amendment No. 18 proposes to include in the definition of "relevant parent", in respect of a person in insurable self-employment, the spouse in a married adopting couple of the same sex chosen by that couple to be the relevant parent for the purpose of accessing paternity benefit. Amendment No. 19 proposes to delete the term "adopting mother or sole male adopter of the child" and to substitute the term "relevant adopting parent of the child". This concerns the definition of "surviving parent". Amendment No. 20 proposes to delete the term "adopting mother, sole male adopter" and substitute the term "relevant adopting parent" regarding the entitlement to, and duration of, the benefit. Amendment No. 21 proposes to delete the term "adopting mother, sole male adopter" and again substitute the term "relevant adopting parent" regarding the entitlement to the benefit of a surviving parent. Amendment No. 22 proposes to include a provision prohibiting a person from availing of both paternity benefit and adoptive benefit. Again, this could arise in a case of a male same-sex couple. The amendment is consequential on the substantive amendments. Amendment No. 23 is a technical amendment that is consequential on the substantive amendments and is again being introduced on the advice of the Office of the Parliamentary Counsel. Amendment No. 24 is also a technical amendment that is consequential on the substantive amendments and is once again being introduced on the advice of the Office of the Parliamentary Counsel.

Amendment No. 27 is consequential on the substantive amendments. It is a technical amendment that provides clarity on an Act referenced in the Bill. Amendment No. 28 proposes to change the reference in the Workplace Relations Act 2015 from the term "adopting mother, sole male adopter" to the simple term "adopting parent".

I call Deputy Caoimhghín Ó Caoláin. We are debating the first set of amendments.

I appreciate that.

I wish the Leas-Cheann Comhairle well in his new position. It is my first time to speak while he is in charge.

As Chairman of the Oireachtas Select Committee on Justice and Equality which dealt with Committee Stage of the Bill last week, I raised a very important issue. The Minister assured me that my concerns were catered for within the legislation. The Minister undertook, before the full committee, that she would provide written assurance that the issue I raised was provided for within the Bill. On Friday, the deadline for the provision of amendments for Report Stage, I sought that assurance by phoning the Minister. It had not come by that point, and it still has not, despite two further attempts today at the Minister's contact numbers.

I ask the Minister of State, at the outset of the address of the amendments tabled by the Minister, to reiterate her assurance and point out where it is provided for in the legislation that, in the event of a stillbirth, the detail and provisions of the Paternity Leave and Benefit Bill will apply. I am very anxious to know this, given that the Minister of State, in his introduction to the amendments, indicated a list of areas in which it is the case. I am anxious to know with certainty that, in the situation where a stillbirth is the sad and tragic consequence of a full-term pregnancy, the paternity leave applies equally to cases in which the child survives. We will all understand that it is, arguably, a more important time for support for the mother than cases in which the child is safely delivered. I said this last week to the Minister.

I can address that.

I hope the Minister of State will, and I will conclude in just one moment. It was important that the Minister, having undertook to provide written assurance of her response to me, should have done so. As Chairman of the Committee on Justice and Equality, I expect that, in future, assurances from the Minister and her officials before our committee will be adhered to and honoured promptly.

I dtús báire, ba mhaith liom comhghairdeas a dhéanamh leat, a Leas-Cheann Comhairle, i dtaobh do phoist nua. Tá súil agam go mbeidh tú an-sásta ar fad sa phost sin sna blianta amach romhainn.

I join Deputy Caoimhghín Ó Caoláin. He raised the matter at the end of the committee meeting on the legislation and discussed it afterwards with the Minister. It is a very important point. It would be very unfair if we introduced legislation giving paternity leave to fathers in all circumstances and excluded the tragic circumstances to which the Deputy referred. It is to be hoped the Minister of State will be able to identify where it is in the legislation.

I thank the Deputy. I apologise, a Leas-Cheann Comhairle. I should also have congratulated you. I look forward to working with you. Stillbirth is covered by the Bill. The term "confinement" ensures any father whose child is stillborn after 24 weeks is entitled to the benefit. I will personally pass the Deputies' observations on communication to the Tánaiste and Minister for Justice and Equality. I undertake that she will commit in writing to what I have just clarified regarding the very sad and tragic issue that arises with respect to a stillborn child. It is very fair comment that, in these circumstances, the benefit is even more required by families.

I thank the Minister of State for the response. I have gone through the legislation and, while the Minister of State is reassuring me that the term "confinement" covers the scenario I have represented, I would appreciate, for my peace of mind and assurance, the written explanation of it in detail. It had not suggested itself as certainly as the Minister of State and the Minister have indicated in the two fora in which I have addressed the matter. I hope it is the case and I do not doubt the sincerity of the Minister of State's reply. We all recognise the situation I have described as most tragic and requiring every support for the woman involved. This would very definitely include the presence and support of her partner or husband, as the case might be. I look forward to receiving it and will bring it to the committee's attention at the first opportunity.

Written confirmation of what I have said will be forthcoming and I will personally talk to the Minister this evening or in the morning to ensure it happens.

Amendment agreed to.

I move amendment No. 2:

In page 6, to delete line 30 and substitute the following:

“ “day of placement” means the day on which a child who is, or is to be, adopted is placed physically in the care of the relevant adopting parent with a view to the adoption of the child or, in the case of an intercountry adoption effected outside the State where the child has not previously been placed in the care of the relevant adopting parent, the day on which the child has been so placed following the adoption;”.

Amendment agreed to.

I move amendment No. 3:

In page 7, between lines 26 and 27, to insert the following:

“ “relevant adopting parent”, in relation to a child who is, or is to be, adopted, means—

(a) in the case of a child referred to in paragraph (a)(i) of the definition of relevant parent, the spouse of the relevant parent in relation to that child,

(b) the adopting mother of the child, or

(c) the sole male adopter of the child;”.

Amendment agreed to.

I move amendment No. 4:

In page 7, to delete lines 31 to 33 and substitute the following:

“(a) in the case of a child who is, or is to be, adopted—

(i) where the child is, or is to be, adopted jointly by a married couple of the same sex, the spouse chosen by that couple to be the relevant parent for the purposes of this Act, or

(ii) in any other case, the spouse, civil partner or cohabitant, as the case may be, of the adopting mother or sole male adopter of the child,

or”.

Amendment agreed to.

I move amendment No. 5:

In page 8, lines 8 and 9, to delete “adopting mother or sole male adopter” and substitute “relevant adopting parent”.

Amendment agreed to.

I move amendment No. 6:

In page 9, lines 35 and 36, to delete “adopting mother, sole male adopter” and substitute “relevant adopting parent”.

Amendment agreed to.

I move amendment No. 7:

In page 10, line 14, to delete “30 September” and substitute “1 September”.

I propose to take amendments Nos. 7, 8, 25 and 26 together, given that they relate to the commencement of the paternity leave and benefit. The Minister for Social Protection, Deputy Leo Varadkar, and the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, have discussed the Department of Social Protection's readiness to begin benefit payments. They are satisfied that a commencement date for the leave and benefit of 1 September is achievable. The reason a commitment could not be given to a start date of 1 September before this is that there was a question mark over whether the complex operational arrangements required in the Department of Social Protection could be completed in time for September. This is why the Bill, as published, applies to births after 30 September 2016. The commencement date of 1 September is in line with the 2016 budget announcement of a two-week period of paternity leave and the associated social insurance-based benefit payment in the 2016 budget.

Any start date will, inevitably, leave some people on the wrong side of the line. We are sorry it is not possible to benefit babies born before September.

However, there are approximately 200 births in Ireland every day. That is almost 6,000 babies that the Bill will provide for if these amendments are accepted and the potential cost to the Exchequer is covered in the Social Protection Vote.

Amendment No. 7 proposes to delete "30 September" and substitute "1 September" in respect of the qualifying date of the placement in the case of a child who is being adopted in respect of paternity leave.

Amendment No. 8 proposes to delete "30 September" and substitute "1 September" in respect of the qualifying date of confinement in respect of paternity leave. As well as carrying the necessary amendments through in respect of the commencement of paternity leave, Part 5, sections 30 and 31, need to be amended to ensure the same result for paternity benefit. If accepted, amendments Nos. 25 and 26 will achieve this outcome.

Amendment No. 7 proposes to delete "30 September" and substitute "1 September" in respect of the qualifying date of placement in the case of a child who is being adopted in respect of paternity benefit.

Amendment No. 8 proposes to delete "30 September" and substitute "1 September" in respect of the qualifying date of confinement in respect of paternity benefit.

I am glad to support the amendments. The change of date from the end September to 1 September was suggested by my colleague, Senator Aodhán Ó Ríordáin, in the other House. This is the fulfilment of a commitment made by the previous Administration, which I warmly welcome.

I support the amendments.

Amendment agreed to.

I move amendment No. 8:

In page 10, line 16, to delete "30 September" and substitute "1 September".

Amendment agreed to.

I move amendment No. 9:

In page 10, between lines 16 and 17, to insert the following:

"(7) A person may not avail of paternity leave under this Act where the person avails of adoptive leave under section 6 of the Act of 1995.".

Amendment agreed to.

I move amendment No. 10:

In page 10, line 18, to delete ", 14(2) and 15(3)" and substitute "and 14(2)".

Amendment agreed to.

I move amendment No. 11:

In page 11, line 21, after "employee" to insert the following:

"or the relevant parent concerned is a relevant parent referred to in paragraph (a)(i) of the definition of relevant parent in section 2(1)".

Amendment agreed to.

I move amendment No. 12:

In page 12, line 27, to delete "of the child" and substitute "in relation to the child".

Amendment agreed to.

I move amendment No. 13:

In page 15, to delete lines 26 to 30 and substitute the following:

"(2) A period of transferred paternity leave shall commence—

(a) in the case of a surviving parent entitled to maternity leave under the Act of 1994, immediately after the end of the maternity leave concerned,

(b) in the case of a surviving parent entitled to adoptive leave under section 6 of the Act of 1995, immediately after the end of the adoptive leave concerned, or

(c) in any other case, within 7 days of the death of the relevant parent concerned or, where applicable, on the day of placement, whichever is the later.".

Amendment agreed to.

Amendments Nos. 14 and 15 are related and may be discussed together.

I move amendment No. 14:

In page 19, line 21, after "penalise" to insert ", or threaten penalisation of,".

The amendments to section 22 strengthen the provisions ensuring employees cannot be penalised or dismissed as a consequence of taking, or intending to take, paternity leave. The provisions of the Bill are, as far as is practicable, based on the corresponding provisions in the maternity protection Acts and family leave legislation. Section 22 derives from section 16(1) of the Parental Leave Act 1998 and section 16 of the Carer's Leave Act 2001, neither of which refers to threats to penalise. However, more modern legislation such as the Industrial Relations (Amendment) Act 2015, the Protected Disclosures Act 2014 and the Protection of Employees (Temporary Agency Work) Act 2012 contain a provision that protects employees not just from penalisation but also from threatened penalisation. It is appropriate that we take the most up-to-date approach in this Bill also and, therefore, amendment No. 14 proposes to prohibit threatened penalisation as well as actual penalisation and amendment No. 15 proposes to prohibit threatened dismissal as well as actual dismissal.

I tabled an amendment to the section on Committee Stage and, in fairness to the Minister, she gave a commitment that if I withdrew it, she would address the issue on Report Stage. She has, indeed, addressed the fact that the draft legislation stated "shall not penalise" and did not include "a threat to penalise". I welcome her commitment and her following through on it.

Amendment agreed to.

I move amendment No. 15:

In page 19, line 24, after "dismissal" to insert ", or the threat of dismissal,".

Amendment agreed to.

I move amendment No. 16:

In page 25, to delete line 5 and substitute the following:

" 'day of placement' has the same meaning as it has in the Act of 2016;".

Amendment agreed to.

I move amendment No. 17:

In page 25, between lines 13 and 14, to insert the following:

" 'relevant adopting parent' means, in relation to a child who is, or is to be, adopted—

(a) where the child is, or is to be, adopted jointly by a married couple of the same sex, the spouse of the relevant parent in relation to that child,

(b) the adopting mother of the child, or

(c) the sole male adopter of the child;".

Amendment agreed to.

I move amendment No. 18:

In page 25, to delete lines 21 to 23 and substitute the following:

"(i) in the case of a child who is, or is to be, adopted—

(I) where the child is, or is to be, adopted jointly by a married couple of the same sex, the spouse chosen by that couple to be the relevant parent for the purpose of this Chapter, or

(II) in the case of a child other than a child referred to in clause (I), the spouse, civil partner or cohabitant, as the case may be, of the adopting mother or sole male adopter of the child,

or".

Amendment agreed to.

I move amendment No. 19:

In page 25, to delete lines 37 and 38 and substitute the following:

"(a) in the case of a child who is, or is to be, adopted, the relevant adopting parent of the child, or".

Amendment agreed to.

I move amendment No. 20:

In page 27, line 9, to delete "adopting mother, sole male adopter" and substitute "relevant adopting parent".

Amendment agreed to.

I move amendment No. 21:

In page 28, line 18, to delete "adopting mother or sole male adopter" and substitute "relevant adopting parent".

Amendment agreed to.

I move amendment No. 22:

In page 29, between lines 34 and 35, to insert the following:

"(14) Subject to subsection (6), a person who is entitled to, or is in receipt of, adoptive benefit under Chapter 11 in accordance with section 58(4)(a)(i) or (b)(i) shall not be entitled to benefit under this Chapter.".

Amendment agreed to.

I move amendment No. 23:

In page 29, line 35, to delete "(14) Regulations" and substitute "(15) Regulations".

Amendment agreed to.

I move amendment No. 24:

In page 29, line 38, to delete "(15) This" and substitute "(16) This".

Amendment agreed to.

I move amendment No. 25:

In page 29, line 40, to delete "30 September" and substitute "1 September".

Amendment agreed to.

I move amendment No. 26:

In page 29, line 43, to delete "30 September" and substitute "1 September".

Amendment agreed to.

I move amendment No. 27:

In page 35, lines 7 and 8, to delete "the Act of 1995" and substitute "that Act".

Amendment agreed to.

I move amendment No. 28:

In page 35, lines 16 and 17, to delete "adopting mother, sole male adopter" and substitute "relevant adopting parent within the meaning of that Act".

Amendment agreed to.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass".

On behalf of the Minister, I thank Members for their engagement on Committee Stage and again this evening and for their contributions on the various other Stages. This is an important day as the House passes legislation which gives parents, primarily fathers, the right to paternity leave. This is a recognition of the important role played by fathers in the care of their children. This legislation will be good for children and families, especially, and for society. I acknowledge the great work by the current and previous committees.

I welcome the passage of the legislation. We have broken from a non-starter into a gallop. This is the second Bill we have enacted in six months. This is important because a commitment was made to have it in place for September. It looked for a while that the Bill might not make it, but to have it enacted in time to fulfil that commitment is important. I commend the Minister of State on his efforts in that regard.

I also welcome the passing of this legislation. It is very progressive. It recognises, first, the importance of the family in society. The definition of the family has obviously extended and changed over recent years. We now have a very broad interpretation of what is the family. Nonetheless, the most important aspect of any family is in respect of the upbringing of children. For too long we have placed a great emphasis upon mothers to bring up children. This Bill now recognises that fathers have a crucial role to play but, more important, it allows the State to give recognition to that by allowing fathers to have time off to look after children in what is a very formative and important part of their lives. I welcome the legislation.

I welcome the passage of this legislation through the Dáil. A commitment was given to introduce it and I recognise the role of the previous Administration in trying to bring it to fruition. I also welcome that we will be able to enact it for 1 September, which was an important element of it.

Much has been said about new politics and this is first legislation that has come through the Committee on Justice and Equality. I commend the Minister on it. She made a number of commitments at that committee, although one fell through the gap with respect to Deputy Ó Caoláin, which I am sure will be rectified. In terms of the commitment she gave me around the protection element, she held fast to her word and brought forward her own amendment. If that is the type of co-operation we can continue to have as we come to deal with more lengthy legislation, the business will be done all the better and all the more speedily.

Question put and agreed to.