Amendments Nos. 1 and 2 are out of order.
Parent's Leave and Benefit Bill 2019 [Seanad]: Committee and Remaining Stages
Amendments Nos. 3 and 4 are out of order.
I move amendment No. 5:
In page 22, line 14, after "remuneration" to insert the following:
"or superannuation benefits or any obligation to pay contributions in or in respect of the employment".
Deputy Troy is due in the Chamber presently.
In the case of paternity, paid maternity and paid adoptive leave, all employment rights, except the right to remuneration, are preserved while the person is on leave. In the case of unpaid maternity or adoptive leave and unpaid parental leave under the 1998 Act, in addition to the remuneration, superannuation benefits and contributions are not preserved either. This amendment would apply the latter regime to the parent's leave. The amendment would interrupt the build-up of contributions to the employee's pension scheme and would, as I understand it, serve to lessen to some extent the pension payable when a person retires. I see parent's leave as being quite similar to paternity leave in terms of its duration and the fact that it is reasonably early in the life of a child. In contrast, unpaid parental leave is now 26 weeks and can be taken up until the child is 12. For these reasons, I am not disposed to accept the amendment.
The State pension is distinct from private pension schemes and section 18(4) provides that an employee on parent's leave will not need to make a PRSI contribution in any week in which he or she does not have reckonable earnings. However, in this position such employees receive a credit and they are not adversely affected.
I bring forward this amendment because in the ordinary course, leave legislation provides that employers are not required to make superannuation contributions during an employee's period of leave. This is the case with regard to maternity leave, as governed by section 22 of the Maternity Protection Act 1994, as amended, and parental leave, as governed by section 14 of the Parental Leave Act 1998. It is difficult to understand why this is being approached differently in this Bill, placing a significant burden on employers.
The Government has argued that the leave entitlement is for a much shorter period and, as such, superannuation contributions should be continued. However, although the initial period is for two weeks, the legislation would allow the period to be extended up to and including nine weeks before 2021. It is not an insignificant period. We have moved the amendment to try to keep consistency in how protective legislation is being dealt with or enacted.
As I pointed out, in the case of paternity, paid maternity and paid adoptive leave, all employment rights, except the right to remuneration, are preserved while the person is on leave. In the case of unpaid maternity or adoptive leave and unpaid parental leave under the 1998 Act, in addition to the remuneration, superannuation benefits and contributions are not preserved. This amendment would apply the latter regime to the parent's leave, which is paid. The Deputy might be conflating the two processes for paid and unpaid leave. We are introducing a paid leave, as opposed to an unpaid leave, as the Deputy referenced. It is the reason I am not inclined to accept the amendment and I ask the Deputy to consider withdrawing it.
To clarify, the Minister of State is saying that under current legislation, all elements of paid leave, including paid maternity leave, would have continuing superannuation payments. Is that paid by an employer, an employee or a combination of both?
That process is rolled on with this legislation.
Under existing legislation, unpaid parental or maternity leave would see superannuation payments suspended.
I move amendment No. 6:
In page 24, between lines 3 and 4, to insert the following:
"21. (1) Where an employee is entitled to work pursuant to section 20 but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.
(2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if—
(a) it is of a kind that is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances,
(b) the terms or conditions of the contract—
(i) relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not less favourable to the employee than those of his or her contract of employment immediately before the start of the period of absence from work while on parental leave, and
(ii) incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled if he or she had not been so absent from work during that period,
(c) the continuity of service is preserved.".
I spoke briefly to the Minister of State outside about this and I apologise for not getting back to him to discuss it further. I bring forward this amendment having been contacted by a number of bodies representing employers. I do not for a minute want anybody to think we are not supportive of the Bill, as we are very much supportive of it, and it is very welcome that the motivation behind the legislation is to improve the work-life balance for parents. It is a concept that we support. However, in doing that we must be cognisant of having a fair balance. We must achieve an improved work-life balance for parents while considering the need for sustainable employment and enhanced economic competitiveness.
I suppose it is unfortunate in a sense. My understanding is that no regulatory impact assessment has been done on the effects of this legislation relating to creation and retention of jobs, in particular in respect of the amendment I am putting forward.
This proposed amendment seeks to allow employers to offer employees returning from parent's leave alternative employment under a new contract of employment if it is not reasonably practical for the employer to permit the employee to return to his or her previous role. The new employment offered must be suitable for the employee concerned. Furthermore, the contract must not be on terms that are less favourable to the employee and must incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled if he or she had not been on leave. Continuity of service is maintained. My understanding is that a similar provision exists in section 27 of the Maternity Protection Act 1994, section 19 of the Adoptive Leave Act 1995 and section 16 of the Parental Leave Act 1998, as amended.
The point has been made that leave provided for under this Bill is only for a short period. As such, the job of an employee should not be required to change in that period. That would be correct in a sense if this was stand-alone legislation. However, the leave will rise from two weeks to seven weeks over the coming three years up to 2021. The period of leave is likely to be added on to the end of a longer period of leave. For example, a person who takes maternity leave and then additional unpaid maternity leave of up to 42 weeks in total can then add the two weeks' paid parental leave to the end of that period. During such a period there may have been significant changes in the workplace. A client could have gone or a department may have changed. If the woman returns following maternity leave, the employer would have this right. However, because the two weeks of parental leave is attached to the end of that period, the employer no longer has that right.
My views are stronger in respect of this amendment. Standing alone, I can see where the Department and the Minister of State are coming from. However, if joined up with other protected leave legislation and taken concurrently, then to my mind there is an anomaly. I believe this amendment will rectify that anomaly.
The proposed section 21 put forward by this amendment is taken from the Parental Leave Act 1998. An equivalent provision is not included in the Adoptive Leave Act or the Paternity Leave and Benefit Act. Instead, these Acts rely on provisions similar to section 20 of this Bill. Section 20 gives the employee the right to return to the same job he or she held before going on leave. Where that job was not the employee's usual job, he or she can return to the usual job or the job held immediately before leave was taken. There would be a concern that if that was not the case and if people could not go back to the same jobs, they may not take the leave at all. We are talking about parent's leave.
The proposed section 21 would allow return to a different job subject to some safeguards. I am of the opinion that parent's leave is more closely related to paternity, adoptive and maternity leave than to parental leave as provided for in the 1998 Act, which is where this proposal comes from. The latter is unpaid and is taken over a longer period - up to when the child is 12 years of age - than the other forms of leave. The kind of flexibility provided to the employer in this situation may be justified by this consideration. I see it as inappropriate to apply the provision to parent's leave uniquely among the forms of leave taken at an earlier stage of the child's life. Moreover, parent's leave is of a relatively short duration. It cannot be more than nine weeks.
There is also an error in the amendment. One paragraph refers to "while on parental leave". That is a different form of leave. We are bringing in what we call "parent's leave". This is the Parent's Leave and Benefits Bill and does not relate to parental leave, which is unpaid. There is an error in the amendment which would make it unworkable and confusing in any event.
I believe what is working well with maternity leave, adoptive leave and paternity leave as it stands is what we want to do here rather than make a change. They are all of the same family or grouping. In contrast, parental leave is unpaid.
There is some agreement in terms of what we are trying to achieve. I apologise for the typographical error in the amendment. Under the rules there is a facility to change that. It should refer to "parent's leave" as opposed to "parental leave" because they derive from two different tranches of legislation. I thank the Minister of State for pointing that out.
The Minister of State alludes to the fact that the position he is taking is primarily because this leave is for a short period. It is for two weeks now from 1 November up to a maximum of nine weeks in 2021. I want to ensure that it is reflective of maternity leave. This is because what will possibly happen is that people who are on maternity leave will take paid maternity leave and then, potentially, take unpaid parental leave and then this measure will run concurrently. Really and truly, the person who is on leave could potentially be on some sort of leave, whether paid maternity leave, unpaid maternity leave or paid parent's leave, and out of work up to a period in excess of 42 weeks now, rising to 49 weeks in 2021.
We should have the same principle enshrined in our legislation to protect the employee, but we should also acknowledge that there could be a change in circumstances during that 49-week period. I have in mind particularly small businesses, which may have lost a valuable client. There may have been a change in circumstances in terms of how a business operates. I am proposing the flexibility to offer an alternative, albeit with the protections laid down in this amendment.
It is extraordinary to hear the party that claims to represent workers advocating a change in employment contracts on foot of a lobbying letter sent around from IBEC. I do not believe that the mistake referred to was a typographical error. It is directly taken from lines written by IBEC.
An advertisement on the radio currently runs to encourage workers to use a solicitor in a case of having returned from maternity leave or some other form of leave only to be told the job no longer exists and that the employee will have to do something else. The advertisement basically advises employees to seek legal advice on the matter because their rights are being breached. It would be highly ironic for this House to be advocating workers' rights on the one hand and on the other hand to be diminishing them. We should reject this amendment outright. It is not in the interests of workers. it is in the interests of IBEC, which has stated as much. We cannot be contradictory by claiming to advocate for workers' rights in terms of when they return to their jobs. The jobs they were doing have to be kept for them. If a person wants to change a contract by negotiation, that is an entirely different thing. However, enshrining this amendment in law would be a major disadvantage to workers, especially parents.
As I said earlier, what is in place at the moment is working well. This is a follow-on from the paid leave already provided for. We want to ensure that when someone takes the leave, he or she can go back to the same job. Otherwise there may be a disincentive to take the leave in the first place. What is in place is working well. I contend there is also a typographical error in the amendment that makes it unworkable. I am not disposed to accepting the amendment as it stands.
Is the Deputy pressing his amendment?
Yes. Can I come back in?
Yes, of course.
Standing up for workers' rights is not incompatible with seeking to ensure that we have a fair balance, and there is no irony there. It is important that we have legislation that protects workers' rights while also being cognisant of the need to achieve the protection, retention and creation of jobs. If there are no jobs in the market, there is no need to worry about workers' rights because workers will not have any jobs to go to. I am not going to take a lecture from anyone in this House about trying to ensure that we have right, fair and equitable legislation. In that regard, I am pressing my amendment.
Amendment No. 7 has been ruled out of order.
Amendments Nos. 8 to 11, inclusive, have been ruled out of order.
Amendments Nos. 12 and 13 have been ruled out of order.
Amendment No. 14 has been ruled out of order.
Amendment No. 15, which provides for the creation of a new section, is out of order.