This is a purely textual amendment.
Adoptive Leave Bill, 1993: Committee Stage (Resumed) and Final Stages.
Government amendment No. 48:
In page 11, subsection (3), line 35, to delete "prior to" and substitute "before".
Amendment agreed to.
Government amendment No. 49:
In page 11, subsection (3), line 36, to delete "adoption" and substitute "placement".
This amendment replaces the word "adoption" with the word "placement" in section 12 (3). The subsection is intended to deal with the return to work of an adoptive parent who has taken leave before the date of placement in connection with a foreign adoption but who fails to secure the placement of a child with him or her. The text as drafted confines the term of the section to a case where no adoption has taken place. However, many foreign adoptions involve placement of a child with adopting parents for some considerable time before the actual adoption. The amendment would broaden the scope of the provision to include such cases by substitution for "adoption" of the word "placement", which, by virtue of the definition in subsection (2), would cover either an adoption or a placement made with a view to adoption.
Amendment agreed to.
Amendments Nos. 50 and 51 are related and may be discussed together.
Government amendment No. 50:
In page 11, subsection (3), line 36, to delete "be required to".
The drafting of section 12 (3) is somewhat unclear as to the arrangements for interpreting the wording in the case where an employee takes additional adoptive leave to travel abroad in connection with an adoption but fails to secure the placement of a child. Amendments Nos. 50 and 51 are intended to address this ambiguity with the requirement that the employee inform the employer of his or her intended date of resumption of work and stipulating that the date is no later than the date of expiry of the period of additional adoptive leave.
Amendment agreed to.
Government amendment No. 51:
In page 11, subsection (3), line 37, after "latest" to add "and shall cause her employer to be notified of the intended date of her return to work as soon as is reasonably practicable".
Amendment agreed to.
Government amendment No. 52:
In page 11, subsection (4), line 38, to delete "this section" and substitute "subsection (2)".
This is a purely technical amendment.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 53 is a Government amendment. Amendments Nos. 64 and 65 are consequential and may be discussed together.
Government amendment No. 53:
In page 11, between lines 40 and 41, to insert the following new subsections:
"(5) Where, in the opinion of a rights commissioner or the Tribunal, there are reasonable grounds for an adopting parent's failure to give a notice under this section or for an adopting parent giving it otherwise than within the time limits specified thereunder, the rights commissioner or Tribunal, as the case may be, shall extend the time for service of the said notice.
(6) In the absence of reasonable grounds, failure to give notice under this section or the giving of it otherwise than in the time limits specified thereunder are matters that may be taken into account by a rights commissioner, the Tribunal or Circuit Court in determining the adopting parent's rights under the Act of 1977, this Act or any other relevant enactment so far as the remedies of re-instatement, re-engagement or compensation are concerned.".
Amendment No. 53 inserts two new subsections (5) and (6) in section 12. The proposed subsection (5) will allow redress to an adopting parent who for good reasons has failed to meet the notification requirements in section 12 and is liable to forfeit the right to return to work as a result. The proposed subsection (6) will allow an adjudicating body under this Bill, unfair dismissals legislation or any other relevant enactment to take specific account of the failure of the adopting parent to inform the employer of her intention to return to work within the statutory time limits. The provisions are analogous to those already provided in respect of similar notification requirements in section 20.
Amendment No. 64 is a technical amendment which alters the reference in section 20 (2) to "the rights commissioner" with the more appropriate reference to "a rights commissioner" since there are a number of them. Amendment No. 65 is a technical amendment which addresses two points in section 20 (3). One point is identical to that in amendment No. 64, that is, the replacement of the word "a" for "the" in the reference to a rights commissioner in the section. The second point relates to a lacuna in the Bill as circulated which does not include a reference to the Circuit Court in relation to the powers assigned in the subsection. The reference is necessary since the Circuit Court is the court of appeal in relation to cases under unfair dismissals legislation.
I support the amendments. However, under the 1977 Unfair Dismissals Act, as amended, there are three options of which the Employment Appeals Tribunal can avail: reinstatement, re-engagement or compensation. We should hope that in all cases this would be reinstatement. Nobody should ever lose a job because of circumstances surrounding adoption.
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
An Leas-Chathaoirleach
Amendments Nos. 54 and 55 are related and may be discussed together.
Government amendment No. 54:
In page 11, subsection (2), line 48, to delete ",no later than 7 days from the date of receipt of the request,".
Amendments Nos. 54 and 55 are purely textual.
Amendment agreed to.
Government amendment No. 55:
In page 12, subsection (2), line 1, after "issued" to insert ", no later than 7 days from the date of receipt of the request,".
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 56 to 58, inclusive, are related and may be discussed together.
Government amendment No. 56:
In page 12, subsection (3), line 9, to delete "it" where it firstly occurs.
These three amendments are textual amendments.
Amendment agreed to.
Government amendment No. 57:
In page 12, subsection (3), line 9, to delete "it" where it secondly occurs and substitute "such a certificate".
Amendment agreed to.
Government amendment No. 58:
In page 12, subsection (8), line 34, to delete "the certificate".
Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14.
An Leas-Chathaoirleach
Amendments Nos. 59 to 61, inclusive, are out of order as they are outside the scope of the Bill as read a Second Time.
Amendments Nos. 59 to 61, inclusive, not moved.
Question proposed: "That section 14 stand part of the Bill."
As the amendments are out of order, I ask the Minister to look at the content of this section and to examine the legislation with a view to amending it so as to cater for the proposals I have outlined.
The registration procedures are under review in my Department.
Question put and agreed to.
Sections 15 and 16 agreed to.
SECTION 17.
An Leas-Chathaoirleach
Government amendment No. 62 is consequential on amendments Nos. 103 and 104 and all may be discussed together.
Government amendment No. 62:
In page 13, lines 49 and 50, to delete "the periods of leave within the meaning of sections 6 and 8 and sections 9 to 11 commence" and substitute "a period of leave under this Act, whether it be adoptive leave or additional adoptive leave, commences".
I will deal with the substantive amendments Nos. 103 and 104 first. Amendment No. 103 inserts a new section 42 in the Bill. Section 42 sets down transitional arrangements for the grant of adoptive leave in the initial period following commencement of the legislation. Subsection (1) establishes a right to adoptive leave for adopting parents with whom a child has been placed in the ten weeks before commencement of the legislation. The leave allowable in any case will be equal to the amount of the ten week period after placement or is left to run after the commencement date. Subsections (2) and (3) require an adopting parent to commence the leave within seven days of the coming into operation of the legislation and to inform the employer of the date of commencement of the leave as soon as is reasonably practicable. Subsection (6) allows the employer to defer the date of commencement of the leave for up to two weeks. Subsection (4) sets down alternative notification arrangements relating to the certificate of placement and analogous documentation in the case of foreign adoptions, as the normal time frame for notification may not be achievable in some cases covered by the new section. Subsection (5) sets out the notification requirement for an adoptive father under this section.
Amendment No. 104 inserts a new section 43 in the Bill. Section 43 sets down the transitional arrangements for the grant of additional adoptive leave in the initial period following commencement of the legislation. Subsection (1) establishes a right to additional adoptive leave for adoptive parents who have taken adoptive leave under the new section 42. Subsection (2) requires that the leave should commence immediately after adoptive leave and sets down the arrangements for notifying the employer. Paragraph (a) requires that the adopting parent notify the employer of her intention to take additional adoptive leave at the same time as notifying him or her of the date of commencement of adoptive leave under section 42, unless the time allows the employee to give notice in accordance with the normal advance notice period of four weeks which was set out in paragraph (b).
Amendment No. 62 is a consequential amendment which arises from the insertion of the new Part VI, Miscellaneous and Transitional Provisions. That part provides, among other things, for the taking of leave under the legislation during the period immediately following commencement of the legislation. As it stands, section 17 renders void notice of termination of employment after the employer has been made aware of the employee's intention to take the leave provided for in sections 6, 8, 9 and 11 of the Bill. The section now needs to be extended to take account of the notice provisions in the new Part VI. Rather than add reference to the new sections to the existing list of four sections, the amendment makes general reference to adoptive and additional adoptive leave.
Amendment agreed to.
Section 17, as amended, agreed to.
Sections 18 and 19 agreed to.
SECTION 20.
Government amendment No. 63:
In page 15, subsection (1), lines 10 and 11, to delete "not earlier than 4 weeks and not later than 2 weeks" and substitute "not later than 4 weeks".
Section 20 (1) requires an adopting parent who wishes to return to work after adoptive leave or additional adoptive leave to inform her employer in good time so that the necessary arrangements can be made for her resumption of employment. The time period for notification in subsection (1) differs from that in an equivalent provision, section 28 (1) of the Maternity Protection Bill, 1994, which is before the Dáil at present. This amendment has been proposed in order to bring the notification requirements in this legislation into line with that in the Maternity Protection Bill, 1994. I commend the amendment to the House.
Amendment agreed to.
Government amendment No. 64:
In page 15, subsection (2), line 16, to delete "the rights commissioner" and substitute "a rights commissioner".
Amendment agreed to.
Government amendment No. 65:
In page 15, subsection (3), line 25, to delete "the rights commissioner or Tribunal" and substitute "a rights commissioner, the Tribunal or Circuit Court".
Amendment agreed to.
Government amendment No. 66:
In page 15, between lines 28 and 29, to insert the following new subsection:
"(4) Notwithstanding subsection (1), where an adopting father's entitlement to leave under this Act amounts to 4 weeks or less he shall, at the same time as he causes his employer to be notified in writing of his intention to take such leave, cause his employer to be notified in writing of his intention to return to work and of the date on which he expects to return to work.".
Section 20 sets out the notification procedures for return to work after the period of leave. The Bill, as circulated, does not deal with the case of an adopting father who is entitled to a period of leave under sections 9 and 10 of less than four weeks. Amendment No. 66 addresses this lacuna in section 20 of the Bill. I recommend the amendment.
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21.
An Leas-Chathaoirleach
Amendments Nos. 67 and 68 are related and may be discussed together.
Government amendment No. 67:
In page 15, line 31, to delete "under section 20 given by her" and substitute "given under section 12 (3) or 20 or on the date on which an adopting parent is required to return to work under section 12 (2), as the case may be,".
Section 21 of the Bill provides for return to work arrangements in circumstances where layoff, strike or other circumstances prevent the adopting parent from returning to work immediately on cessation of the period of adoptive leave or additional adoptive leave. The latitude to return to work at a later date in these circumstances is given only to adoptive parents who return to work in the normal course after notifying the employer of the intention to return to work under section 20 of the Bill. The minority of adoptive parents covered by the arrangement provided in section 12 of the Bill, those who return to work after the termination of a placement or where there has been no placement, are outside the scope of the Bill. Amendments Nos. 67 and 68 address this lacuna in the Bill, as circulated, by inserting the necessary references to section 12 of the Bill.
Amendment agreed to.
Government amendment No. 68:
In page 15, line 32, to delete "the date specified in the notification" and substitute "such date".
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
Government amendment No. 69:
In page 15, line 42, to delete "adopting mother" and substitute "employed adopting mother".
Amendment agreed to.
Section 22, as amended, agreed to.
Sections 23 and 24 agreed to.
SECTION 25.
Government amendment No. 70:
In page 16, line 29, after "exercise" to insert "or contemplated exercise".
This is a technical amendment to bring the text of the Bill into line with the Maternity Protection Bill, 1994, which is at present before the Dáil.
Amendment agreed to.
Government amendment No. 71:
In page 16, paragraph (h), lines 29 and 30, to delete "adopting parent (other than a person specified in section 2 (1) of this Act)" and substitute "employee who is an adopting parent".
I will discuss amendments Nos. 71 and 72 together. When section 25 was originally drafted, the provision followed closely the line adopted in the Maternity Protection of Employees Act, 1981, relating to the amendment of section 6 (2) of the Unfair Dismissals Act, 1977. The 1981 Act is currently being amended by the Maternity Protection Bill, 1994, which is required to meet obligations arising under the EU pregnant workers Directive. In responding to such obligations the Maternity Protection Bill, 1994, will remove certain exclusions under the Unfair Dismissals Act, 1977, which up to now precluded its application in respect of a number of groups of employees. This Bill should also remove exclusions under the 1977 Act in respect of dismissal arising from adoptive leave. Accordingly, these two amendments have been prepared so that the categories of workers excluded under the 1981 amendment of the 1977 Act and now included under the Maternity Protection Bill, 1994, can also be covered in this Adoptive Leave Bill, 1993.
Amendment agreed to.
Government amendment No. 72:
In page 16, to delete line 37, and substitute:
"case, and
(iii) the reference in this paragraph to an employee includes a person who would otherwise be excluded from this Act by paragraph (a), (c), (f) or (g) of section 2 (1).".
Amendment agreed to.
Section 25, as amended, agreed to.
Section 26 agreed to.
SECTION 27.
An Leas-Chathaoirleach
Amendment No. 73 has already been discussed with amendment No. 1.
Government amendment No. 73:
In page 17, line 5, to delete "adopting mother" and substitute "employed adopting mother".
Amendment agreed to.
Section 27, as amended, agreed to.
SECTION 28.
Government amendment No. 74:
In page 17, line 10, after "following", to insert "paragraph".
This is purely a technical amendment.
Amendment agreed to.
Section 28, as amended, agreed to.
Sections 29 to 31, inclusive, agreed to.
SECTION 32.
Government amendment No. 75:
In page 17, lines 38 and 39, to delete subsection (1) and substitute the following subsection:
"(1) This Part does not apply to an adopting parent who is in employment as a member of the Defence Forces.".
This amendment will bring all employees, except members of the Defence Forces, within the scope of the redress and remedy provisions of the Bill. In the Bill as published only employees within the meaning of the Unfair Dismissals Act, 1977, come within the scope of the redress mechanism of the Bill. Public servants were in general excluded from these provisions, for example, members of the Garda Síochána, civil servants, local authority officers, etc. It has now been decided to bring these categories of employees within the scope of the Bill, in line with a similar provision in the Maternity Protection Bill, 1994.
The Defence Forces will continue to be excluded from the redress and remedy provisions of the Bill because they have their own statutory redress system. Section 114 of the Defence Act, 1954, provides that any member of the Defence Forces who thinks that she or he is being wronged in any way whatsoever may submit an application for a redress of wrongs. This section of the Defence Act provides that such an application for redress should ultimately be submitted to the Minister for Defence for final decision.
I am confident that this statutory provision which has worked well since 1954 and which is compatible with the military system provides a more than satisfactory system for redress for members of the Defence Forces in the highly unlikely situation of their requiring it in connection with the provisions of this Bill.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 77 is an alternative to amendment No. 76 and both may be discussed together.
Government amendment No. 76:
In page 17, lines 40 and 41, and in page 18, lines 1 to 4, to delete subsection (2) and substitute the following subsection:
"(2) Any dispute other than——
(a) a dispute relating to a dismissal, including a dismissal within the meaning of the Act of 1977 or, the termination of a contract of employment, or
(b) a claim under Part IV of the Act of 1967 as extended by section 29, or
(c) a dispute under section 11 of the Minimum Notice and Terms of Employment Act, 1973, as extended by section 30.
between an adopting parent and the relevant employer, relating to the adopting parent's entitlements under this Act (or to any matter arising out of or related to such entitlements), may be referred by either party to the dispute to a rights commissioner.".
This amendment replaces section 32 (2) of the Bill with the new subsection (2). The new text, together with the new definitions of "employee", "employer" and "conduct of employment" inserted in section 2 brings persons employed through employment agencies and public servants, with the exception of members of the Defence Forces, within the scope of Part V of the Bill. The provisions are in line with similar provisions in the Maternity Protection Bill, which is at present before the Dáil.
My amendment would include a reference to either the rights commissioner or the Employment Appeals Tribunal. Could the Minister comment on why he has not included the Employment Appeals Tribunal as well as the rights commissioner? I am referring here to amendment No. 77 which is related to amendment No. 76.
I am glad to say that this amendment may be one that is not warranted and I hope I can bring Senator Neville around to my point of view on this.
Section 32 of the Bill deals with the initial reference of disputes only and provides that any dispute under the legislation is referred initially to a rights commissioner. Section 35 provides for an appeal from a decision of a rights commissioner to the Employment Appeals Tribunal. The proposed amendment would have the effect of allowing the dispute to be referred initially to either a rights commissioner or the Employment Appeals Tribunal. I thank Senator Neville for his contribution on this amendment and for his comments in the course of the debate generally.
The question then arises as to the appropriate locus for appeal from a decision of the tribunal. There may be a view that a review of the structure of the tribunal may solve issues such as these, but I think the current legislation is not the vehicle for such broad ranging change. In any event, the limited nature of the issues is probably more appropriate to a rights commissioner in the first instance, with the right of appeal to the tribunal.
I do not have any great problem with that, except that it is at variance with the approach taken under the 1977 Act, where the employee has a right to either opt for a rights commissioner or the tribunal. However, it is not a big issue and I will not press it.
Amendment agreed to.
Amendment No. 77 not moved.
An Leas-Chathaoirleach
Amendments Nos. 81 and 84 are related to amendments No. 78 and all may be discussed together.
Government amendment No. 78:
In page 18, subsection (3), line 6, to delete "section" and substitute "Part".
Sections 32 (3) and 34 (1) and (2) of the Bill, as circulated, contain references to "section" which should read "Part". Amendments Nos. 78, 81 and 84 make the necessary substitutions. These are purely technical and textual amendments.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 80 is consequential on amendment No. 79 and both may be discussed together.
Government amendment No. 79:
In page 18, subsection (3), line 7, to delete "and shall give a decision in writing and communicate it to the parties".
Amendment No. 79 proposes to delete text from section 32 (3). The text to be deleted gives powers to a rights commissioner to give a decision in writing in communication to the parties. Amendment No. 80 replaces this text and assigns such powers both to a rights commissioner and to the tribunal.
Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.
An Leas-Chathaoirleach
Amendment No. 80 has already been discussed with amendment No. 79.
Government amendment No. 80:
In page 18, between lines 30 and 31, to insert the following new subsection:
"(5) The decision of a rights commissioner or determination of the Tribunal shall be in writing and shall be communicated to the parties by the rights commissioner or tribunal, as the case may be.".
Amendment agreed to.
Section 33, as amended, agreed to.
SECTION 34.
An Leas-Chathaoirleach
Amendment No. 81 has already been discussed with amendment No. 78.
Government amendment No. 81:
In page 18, subsection (1), line 31, to delete "section" and substitute "Part".
Amendment agreed to.
Government amendment No. 82:
In page 18, subsection (1), lines 34 to 37, to delete paragraph (a) and substitute the following paragraph:
"(a) (i) not later than 6 months from the day of placement, or, in circumstances where no placement takes place, within the period of 6 months from the date on which the employer receives the first notification of the adopting parent's intention to take leave under this Act, whether it be adoptive leave or additional adoptive leave, or
(ii) in the case of an adopting father, not later than 6 months from the date on which the adopting mother died, or".
Section 34, as circulated, provided a notification period for a referral of a dispute that might have been very short in some cases. This is because that six month period allowed for appeal would have dated from the first notification by the employee to the employer of her intention to take adoptive leave. The proposed amendment makes a more flexible provision by allowing the referral period to run from the date of the initial notification to the employer of intention to take leave or from the date of placement, whichever is appropriate. Special provision is also made for an adoptive father.
I commend this amendment to the House.
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 83, 94, 95, 96 and 98 are related and may be discussed together.
Government amendment No. 83:
In page 18, subsection (1), line 44, to delete "relevant employer" and substitute "other party to the dispute".
Part V allows either the employer or the employee to refer a dispute to a rights commissioner and to appeal a decision to the tribunal. The sections of Part V are drafted accordingly, except for sections 34 (1) and 39. Section 34 (1) and section 39 are drafted as if only the employee has such a right. Amendments Nos. 83, 94 and 95, 96 and 98 address this inconsistency in the text.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 84 has already been discussed with amendment No. 78.
Government amendment No. 84:
In page 19, subsection (2), line 1, to delete "section" and substitute "Part".
Amendment agreed to.
Section 34, as amended, agreed to.
SECTION 35.
Government amendment No. 85:
In page 19, subsection (2), line 15, to delete "within 5 weeks of the decision" and substitute "as soon as may be after the receipt by it of the notice".
Section 35 (2), as circulated, requires the Employment Appeals Tribunal to give a copy of the notices of appeal to the other party within a week of receipt of the appeal in the case where the appeal is lodged at the last moment. This amendment sets no specific deadline of this nature but requires the tribunal to give a copy of the notice to the other party as soon as may be after receipt of the notice. The amendment arises from concern expressed by the tribunal that in the extreme case — for example, over the Christmas break — it might not be possible to serve the notice in the time specified and the appeal might fall on that ground. The text of the amendment is in line with a similar provision in the Unfair Dismissals Act, 1993, and with an amendment of the maternity legislation which is under consideration in the Dáil.
I welcome this amendment. It would not be practical on all occasions for the tribunal to give notice as outlined in the original Bill. Maybe it is a deficiency on my part that I did not table a similar amendment to the Minister's on this point.
Amendment agreed to.
Government amendment No. 86:
In page 19, subsection (4) (b), line 26, after "false,", to insert "shall be guilty of an offence and, upon".
Section 35 (4) (b) makes provision for dealing with a person who gives false evidence before the Employment Appeals Tribunal. In order to be effective the paragraph should also provide that such behaviour is an offence under the Bill. Such provision will allow the Minister to prosecute persons who fail to comply with the requirements of the section. Amendment No. 86 makes the necessary insertion in the text and makes the behaviour outlawed by the paragraph an offence.
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 87 and 88 are related and may be discussed together by agreement.
Government amendment No. 87:
In page 19, subsection (4) (d), line 35, to delete "who refuses or wilfully neglects to attend" and substitute "who fails, without just cause, to attend".
Section 35(4)(d) makes provision in relation to persons who do not attend before the Employment Appeals Tribunal and who fail to give evidence before it. The text of the paragraph in the Bill as circulated requires the Minister to prove that the person refused or wilfully neglected to attend before the tribunal or refused or wilfully failed to produce evidence in order to secure a conviction. This level of proof would be very difficult to secure in practice and so it is proposed to require only that the Minister show that the person has failed without just cause to attend before the tribunal or to produce evidence. This amendment deals with two issues by the insertion of two new subsections into section 35. The new subsection (5) specifies that it is the Minister who may bring and prosecute proceedings for an offence under paragraphs (b) and (d) of subsection (4). The new subsection (6) sets out certain evidential information required in order to establish a case against a person who has failed without just cause to attend before the Employment Appeals Tribunal or to furnish evidence. The text is similar to that employed in recent labour legislation such as the Industrial Relations Act, 1989, in respect of the Labour Court and the Unfair Dismissals (Amendment) Act, 1993, in respect of the Employment Appeals Tribunal.
I fully agree with that.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 88 has already been discussed with amendment No. 87.
Government amendment No. 88:
In page 19, subsection (4)(d), lines 37 and 38, to delete "or refuses or wilfully fails to produce any document" and substitute "or fails, without just cause, to produce any document".
Amendment agreed to.
Government amendment No. 89:
In page 19, between lines 40 and 41, to insert the following subsections:
"(5) Proceedings for an offence under paragraph (b) or (d) of subsection (4) may be brought and prosecuted by the Minister.
(6) A document purporting to be signed by the chairman or vice-chairman of the Tribunal stating that
(a) a person named in the document was, by a notice under subsection (4) (c), required to attend before the Tribunal on a day and at a time and place specified in the document, to give evidence or produce a document,
(b) a sitting of the Tribunal was held on that day and at that time and place, and
(c) the person did not attend before the Tribunal in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or failed to produce the document, shall, in a prosecution of the person for an offence under subsection (4) (d), be sufficient evidence of the matters so stated, unless the contrary is shown.".
Amendment agreed to.
Section 35, as amended, agreed to.
SECTION 36.
Government amendment No. 90:
In page 19, subsection (1), line 41, to delete "The Minister may, at the request of the Tribunal,", and insert "The Tribunal may".
This amendment will allow the Employment Appeals Tribunal to state a case to the High Court in respect of any determinations under this legislation. The Bill as circulated would have allowed the tribunal to do so only indirectly through the Minister. The revised text is in line with the Maternity Protection Bill and other recent legislative provisions in this regard.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment Nos. 91 and 92 are related and both may be discussed together by agreement.
Government amendment No. 91:
In page 19, subsection (1), lines 43 and 44, to delete "and the determination of the High Court shall be final and conclusive".
The Bill as circulated would not have allowed appeal beyond the High Court on a point of law in any case under Part V of the Bill. While the issues for resolution under Part V may be small, it is not beyond the bounds of possibility that a case might turn on a significant point of legal principle. Because of this I am disposed to removal of the prohibition on appeal to the Supreme Court and the amendments will have effect accordingly.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 92 has already been discussed with amendment No. 91.
Government amendment No. 92:
In page 19, subsection (2), lines 47 and 48, to delete "and the determination of the High Court shall be final and conclusive".
Amendment agreed to.
Section 36, as amended, agreed to.
Sections 37 and 38 agreed to.
SECTION 39.
Government amendment No. 93:
In page 20, subsection (1) (b), line 42, to delete "6 weeks" and substitute "4 weeks".
Section 39 (1) (b) of the Bill provides that a decision of a rights commissioner or a determination of the tribunal should be carried out within six weeks of the date of the decision or determination unless the finding specifically provides otherwise. The period for an appeal set down in section 35 (2) is four weeks. There is considerable logic in providing that the latest date for implementation of the finding should coincide with the latest date for appeal, so that on that date the party against whom the finding is made either complies with the finding or appeals it. Accordingly, I propose to change the implementation date specified in section 39 (1) (b) from six weeks to four weeks to coincide with the end of the appeal period. Amendment No. 93 so provides.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 94 has already been discussed with amendment No. 93.
Government amendment No. 94:
In page 20, subsection (2) (a), line 44, to delete "the relevant employer" and substitute "a party".
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 95 has already been discussed with amendment No. 83.
Government amendment No. 95:
In page 20, subparagraph (i), line 50, to delete "adopting parent" and substitute "other party".
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 96 has already been discussed with amendment No. 83.
Government amendment No. 96:
In page 21, subsection (2) (a), line 1, to delete "relevant employer" and substitute "party in default".
Amendment agreed to.
Government amendment No. 97:
In page 21, subsection (2) (a), line 2, to delete "matters aforesaid" and substitute "failure".
This is a purely textual amendment.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 98 has already been discussed with amendment No. 83.
Government amendment No. 98:
In page 21, subsection (2) (a), line 3, to delete "the relevant employer" and substitute "the party in default".
Amendment agreed to.
Government amendment No. 99:
In page 21, subsection (2) (a), line 4, before "determination" to insert "decision or".
Section 39 (2) (b) of the Bill as circulated gives the Circuit Court power to make an order only in respect of decisions of a rights commissioner. Obviously, a reference to determination of the Employment Appeals Tribunal is also required. The amendment addresses this lacuna.
Amendment agreed to.
Government amendment No. 100:
In page 21, subsection (2) (b), line 5, to delete "of this subsection".
This is a purely technical amendment.
Amendment agreed to.
Section 39, as amended, agreed to.
NEW SECTIONS.
Government amendment No. 101:
In page 21, after line 27, to insert the following new section:
40.—In section 6 of the Protection of Employees (Employers' Insolvency) Act, 1984—
(a) the references in subparagraph (v) of subsection (2) (a) to a determination or order shall be construed as including references to a decision, determination or order under Part V, and
(b) the references in subparagraph (i) of subsection (4) (c) to a determination shall be construed as including references to a decision or determination under Part V and the reference in clause II of the said subparagraph, to section 10 (4) of the Act of 1977 shall be construed as including a reference to section 35 or 36, as may be appropriate.".
This amendment deals with the interpretation of section 6 of the Protection of Employees (Employers' Insolvency) Act, 1984. Section 6 of that Act allows payment to be made from the insolvency fund to an employee whose employer has become insolvent and who owes an employee an amount of compensation as a result of an award under certain labour protection legislation. The amendment will allow an employee to recover compensation under this legislation in a similar way. Specifically, the amendment covers any decision, determination or court order made under part 5 of the Bill.
I welcome this amendment. As the Minister says, it complies with and is similar to situations in other areas, especially under the Unfair Dismissals Act.
Amendment agreed to.
Government amendment No. 102:
In page 21, after line 27, to insert the following new section:
"PART VI
Miscellaneous and Transitional Provisions
41.—(1) Where an adopting parent commences employment within a period of 6 weeks before the day of placement she shall, as soon as is reasonably practicable but not later than the day on which she commences adoptive leave, cause her employer to be notified in writing of her intention to take adoptive leave, and where such notification is given, the provisions of section 7 (1) (a), 7 (2) (a) or 9 (3) (a) (i), as the case may be, shall not apply in respect of that period of leave.
(2) Where an adopting parent commences employment within a period of 6 weeks before the day of placement and wishes to take a period of additional adoptive leave before the day of placement under section 8 (5) or section 11, as the case may be, the adopting parent shall, as soon as is reasonably practicable, but no later than the day on which she commences such leave, cause her employer to be notified in writing of her intention to take additional adoptive leave before the day of placement, and when such notification is given the provisions of section 8 (6) (a) or 11 (2) (a), as the case may be, shall not apply in respect of that period of leave.
(3) Where a child is to be placed with an adopting parent within the period of 6 weeks beginning on the commencement of this Act, the adopting parent shall, as soon as is reasonably practicable but not later than the day of placement, cause her employer to be notified in writing of her intention to take adoptive leave, and where such notification is given, the provisions of section 7 (1) (a), 7 (2) (a) or 9 (3) (a) (i), as the case may be, shall not apply in respect of that period of leave.
(4) Where a child is to be placed with an adopting parent within the period of 6 weeks beginning on the commencement of this Act and the adopting parent wishes to take a period of additional adoptive leave before the day of placement under section 8 (5) or section 11, as the case may be, the adopting parent shall, as soon as is reasonably practicable, but no later than the day on which she commences such leave, cause her employer to be notified in writing of her intention to take additional adoptive leave before the day of placement, and when such notification is given the provisions of section 8 (6) (a) or 11 (2) (a), as the case may be, shall not apply in respect of that period of leave.
(5) An employer, who receives a notification under this section within 2 weeks of the notified day of commencement of the leave, may require the adopting parent to delay commencement of the leave in respect of which the notification was given for up to 2 weeks from the day on which the notification was received.".
This amendment deals with two exceptional circumstances in which an employee could not be in a position to comply with the notification requirements for eligibility for leave under the various sections of the Bill. The amendment involves the addition of a new section, section 41, which provides for alternative notification procedures in these cases. Subsections (1) and (2) of the new section deal with one of the exceptional circumstances: the case of an adopting parent who wishes to take adoptive leave in the weeks immediately following the commencement of employment. Subsections (3) and (4) deal with the other exceptional circumstance: the case of an adopting parent who wishes to take adoptive leave in the weeks immediately following commencement of the legislation. In either case the adopting parent will be unable to comply with the four weeks advance notice required for eligibility specified in Part II of the Bill. The section will allow such an adopting parent to give notice of intention to take the leave to her employer as soon as is reasonably practicable but no later than the date of commencement of the leave. These notice arrangements are favourable to the employee and could leave an employer without an employee at short notice. To minimise disruption to the employer, subsection (5) will allow the employer to defer the date of commencement of the leave for up to two weeks if the employee has given the employer less than two weeks notice of the date of commencement of the leave.
Amendment agreed to.
Government amendment No. 103:
In page 21, after line 27, to insert the following new section:
42.—(1) Where a child has been placed with an adopting parent at any time within the period of 10 weeks before the commencement of this Act——
(a) the adopting parent shall be entitled to adoptive leave for a period of 10 weeks less a period equivalent to the period beginning on the day of placement and ending on the date of commencement of this Act, or
(b) the adopting father shall, in circumstances where the adopting mother dies after the commencement of this Act, be entitled to leave for a period of 10 weeks less a period equivalent to the period beginning on the date of placement and ending on the date of the adopting mother's death.
(2) The adopting parent shall commence a period of leave referred to in subsection (1) (a) within the period of 7 days beginning on the date of commencement of this Act and shall, as soon as is reasonably practicable but not later than the day on which the leave is commenced, cause her employer to be notified in writing of her intention to take such leave.
(3) The adopting father shall commence a period of leave referred to in subsection (1) (b) within the period of 7 days beginning on the date of the death of the adopting mother and shall, as soon as is reasonably practicable but not later than the day on which the leave is commenced, cause his employer to be notified in writing of his intention to take such leave.
(4) (a) In the case of an adoption other than a foreign adoption, entitlement to leave under subsection (1) (a) shall be subject to an adopting parent causing her employer to be supplied with the certificate of placement as soon as is reasonably practicable but not later than 4 weeks after the commencement of the leave.
(b) In the case of a foreign adoption entitlement to leave under subsection (1) (a) shall be subject to an adopting parent
(i) causing her employer to be supplied with a copy of the declaration made pursuant to section 5 (1) (iii) (II) of the Adoption Act, 1991, before the commencement of the leave, and
(ii) causing her employer to be supplied with particulars in writing of the placement as soon as reasonably practicable.
(5) Paragraphs (b), (c) and (d) of section 9 (3) shall apply in respect of an adopting father taking leave under subsection (1) (b).
(6) An employer who receives a notification under this section may require the adopting parent to delay commencement of the leave, in respect of which the notification was given, for up to 2 weeks from the notified day of commencement of the leave.".
Amendment agreed to.
Government amendment No. 104:
In page 21, after line 27, to insert the following new section:
43.—(1) Where an adopting parent takes leave under section 42 she shall be entitled, if she so requests, to additional adoptive leave for a period of 4 weeks.
(2) The adopting parent shall commence a period of leave referred to in subsection (1) immediately upon the expiration of the period of adoptive leave under section 42 and shall cause her employer to be notified in writing of her intention to take such leave—
(a) at the same time as the notification of her intention to take leave under section 42 (2) is given, or
(b) not later than 4 weeks before the date on which she intends to take the leave,
whichever is the later.".
Amendment agreed to.
Government amendment No. 105:
In page 21, after line 27 to insert the following new section:
44.—(1) An adopting parent who has been on adoptive leave under section 42 or additional adoptive leave under section 43 shall cause her employer (or, where she is aware of a change of ownership of the undertaking concerned, the successor) to be notified in writing of her intention to return to work and of the date on which she expects to return to work—
(a) at the same time that she causes her employer to be notified of her intention to take leave under either of those sections, or
(b) not later than 4 weeks before the date on which she expects to return to work,
whichever is the later.
(2) Subsections (2) and (3) of section 20 shall apply to an adopting parent taking leave under sections 42 and 43 and the references in those subsections to subsection (1) shall be construed as including a reference to subsection (1) of this section.".
Amendment No. 105 inserts a new section, section 44, into the Bill. Section 44 sets down the notification arrangements which will apply in relation to the return to work of adoptive parents who have taken leave under sections 42 and 43 of the Bill. Subsection (1) requires that the adopting parent should notify her employer if she intends to return to work after the leave either at the same time as she notifies him or her of her intention to take the leave or, if time allows, in accordance with the normal advance notice period of four weeks.
Subsection (2) ensures that section 20 of the Bill will be construed so as to include a reference to an adopting parent returning to work after taking adoptive leave under sections 42 and 43. Section 20 (2) is of particular relevance since it allows the rights commissioner or the Employment Appeals Tribunal to examine the reasons an employee may not have given the appropriate notice of return to work and to extend the period for notification in exceptional cases.
Amendment agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I welcome the fact the Bill has gone through the House. We all agreed that it should pass as quickly as possible because it is necessary that it be on the Statute Book; as we said on Second Stage, it should have been on the Statute Book for the past ten years. I am pleased the Minister referred to the fact that issues relating to adoption in general are being looked at and that legislation is being considered. I ask him to look at the amendments which were ruled out of order because they do not relate to adoptive leave but with adoption per se.
Issues such as property rights are of concern to adopted children and adoptive parents. One of my amendments attempted to correct the issues which have arisen around that. I understand the Minister is addressing the issue of tracing parents and discrimination in adoption, particularly age discrimination and, indeed, against employed mothers. I ask the Minister to look at that area, although I appreciate it is not in line with this Bill. We welcome this Bill going through and hope it has a speedier passage through the Dáil than it had through the Seanad because it took 12 months.
I also thank the Minister for bringing this Bill before the House. I promise this will be a less emotional contribution than on the last occasion I spoke on this issue. As Senator O'Toole said, this is important legislation because it gives the lie to the view that the parents of adopted children are held in less regard by the State. Under this legislation they are entitled to the same treatment as other parents.
I agree with what Senator Neville said. I know it is not the purpose of this legislation but I have been inundated with letters and submissions from individuals because of the introduction of this legislation and the Minister is aware of the details of some of these cases. There is a need for a contact register. Over 90 per cent of adoption cases go through the Adoption Board and work well but there are a small number of cases in which the birth mother does not sign the final consent and the adoption is left in limbo. Not alone is maternity leave not available but they must pursue the final adoption to the High Court. A myriad of difficulties are associated with the adoption area.
I met the Minister and the Minister for Health, Deputy Howlin, and I know this Government has a huge legislative programme and priorities with which it must deal — including the Child Care Act and the need to protect children but because this is an area which causes anguish to birth mothers, adoptive parents and children, I hope the Minister will work with his colleague, the Minister for Health, to try to progress the issues which Barnardos, adoptive parents and the Adoptive Parents Association have highlighted.
I congratulate the Minister on this legislation. I hope this Bill passes through the Dáil more quickly than it passed through the Seanad and that it will benefit those concerned.
I thank the Leas-Chathaoirleach, the Cathaoirleach and Senators for their considered and speedy consideration of the Bill on Committee Stage. I appreciate the facility given to me by the Seanad in view of the lack of haste in bringing the Bill back on Committee Stage and I apologise for that. I noted the concerns of Senator Neville and Senator O'Toole as regards the timing of Committee Stage and the publication of the amendments. Particular circumstances gave rise to that which I regret.
I hope I allayed the fears of Senator Neville about the notice periods in section 7. The approach taken on this section was decided after due consideration of the adoption process and in consultation with Department of Health. I will, however, review the matter further as agreed in the course of the debate.
I thank Senator Neville, Senator McGennis and others for their helpful interventions. I express my appreciation for the cordial way I have been received on this occasion, as I always am. I appreciate the informal yet efficient way in which the House conducts its business. I am pleased this important legislation has signally advanced and it is my intention to process it finally through the Dáil with all possible speed. It is a measure which should have been on the Statute Book many years ago but at least we have made substantial progress with the co-operation of the House.
Many intending adoptive parents are waiting for this legislation to be enacted. It is an important piece of social progress. I express my thanks and appreciation to members of my staff who worked long and hard on the complex amendments before the House today and I appreciate their contribution.
Question put and agreed to.