Seanad Éireann debate -
Thursday, 9 Mar 1995

Vol. 142 No. 6

Adoptive Leave Bill, 1993: Report and Final Stages.

An Leas-Chathaoirleach

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 82, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purposes of the amendments made by the Dáil and this is looked upon as the report of the Dáil amendments to the Seanad. The only matter, therefore, that may be discussed is the amendments made by the Dáil.

For the convenience of Senators I have arranged for the printing and circulation of those amendments.

Question proposed: "That the Bill be received for final consideration."

Minister for Equality and Law Reform (Mr. Taylor)

There were 13 Government amendments to the Adoptive Leave Bill in the Dáil; the amendments are listed Nos. 1 to 13 on the amendment sheet. All the amendments, with the exception of amendment No. 6, are purely technical. Amendment No. 6 is a substantive amendment. Amendments Nos. 1 to 5 are related technical amendments. I will outline first the purpose of the substantive amendment — amendment No. 6 — and then describe briefly the related technical amendments.

Amendment No. 6 replaces subsection (3) of section 4 of the Bill with two new subsections. The new subsection (3) is similar to, but broader in scope than, the subsection which it replaces and is a fairly common provision in labour legislation. It makes clear that a contract of employment or a collective agreement may provide arrangements which are more beneficial to an employee than the minimum provisions in the Bill.

Examples of the more beneficial arrangements permitted by the provision would include 11 or more weeks adoptive leave instead of the ten weeks statutory minimum or payment during the period of leave. The new subsection (4) of section 4 ensures that an employer who gives more beneficial arrangements to an adopting parent will not be obliged to make similar provision for employees who are not adopting parents. The purpose of the related technical amendments Nos. 1 to 5 is as follows.

Amendment No. 1 extracts the definitional element in the existing subsection (1) of section 4 and makes a new subsection (1) which deals only with the definition of "agreement". There is no change to the definition of agreement.

Amendments Nos. 2 and 3 are technical amendments to the existing subsection (1) of section 4 consequential on amendment No. 1. Amendment No. 3 deletes the definitional element in the existing subsection (1) which is now contained in the new subsection (1).

Mr. Fitzgerald

On a point of order, we do not have a copy of the amendments as they have not been circulated.

Mrs. McGennis

I have the amendments but not the Minister's speech. It is impossible to follow the thrust or to make any meaningful contribution without a copy of the speech.

Mr. Taylor

Does the Senator have a copy now?

Mrs. McGennis

Yes, I have just been given a copy.

Mr. Taylor

Amendment No. 2 replaces the reference to "any agreement" in the existing text with a reference to "an agreement" so that it is clear that the reference is to an agreement of the kind defined in the new subsection (1).

Mrs. McGennis

On a point of order, I still do not have a copy of the Minister's speech. I have four pages which do not relate to what the Minister is saying. I do not wish to make an ill-informed contribution to the debate.

An Leas-Chathaoirleach

It is not a function of the Chair to circulate speeches.

Mrs. McGennis

I know that.

An Leas-Chathaoirleach

I am sure the Minister will arrange to provide copies as soon as possible.

Mrs. McGennis

Could we wait until they arrive? Perhaps we could suspend the sitting for five minutes.

An Leas-Chathaoirleach

It is proposed to suspend the sitting for five minutes, if the Minister is agreeable, to get copies of his speech. Is that agreed? Agreed.

Sitting suspended at 2.10 p.m. and resumed at 2.15 p.m.

Minister for Equality and Law Reform (Mr. Taylor)

Amendments Nos. 4 and 5 similarly amend the existing section 4 (2). Amendments Nos. 7, 8 and 11 are identical technical amendments. The amendments replace three references to the Maternity Protection of Employees Act, 1981, with references to the Maternity Protection Act, 1994. The Maternity Protection Act, 1994, has been enacted since the Adoptive Leave Bill was passed by the Seanad.

The amendments are not strictly necessary because section 2 (5) of the Bill provides that a reference to any enactment includes a reference to any enactment as amended. However, the amendments are made for the sake of ease of reference for future users of the legislation.

The deletion of section 23 and amendments Nos. 9 and 10 form a single composite proposition. The new provisions contained in amendments Nos. 9 and 10 are modelled on similar provisions in the Maternity Protection Act, 1994. They leave redundant the contents of section 23 of the Bill, which was consequently proposed for deletion. The amendments are of a purely technical nature and have no practical implications for the scope of the Bill. They achieve the same purpose as the text being replaced but in a neater form.

Amendment No. 12 inserts a comma to section 33(1) of the Bill as passed by the Seanad. The insertion will facilitate a correct interpretation of the subsection. Amendment No. 13 is a textual amendment to ensure consistency between this provision and other provisions in the Bill.

Mrs. McGennis

This legislation has had a difficult passage through both Houses since the Minister initiated it in the Seanad in November 1993. It was a further 12 months before Committee Stage was taken and at that point it had been subject to quite a number of changes. Many of these improved the basic concept of the Bill, which was to give effect to adoptive leave for couples adopting a child. At the time, all sides of the House welcomed the Bill.

On Committee Stage, the Bill underwent quite a number of changes as a result of changes in other legislation. Despite attempts to amend the Bill by what is now the Government side of the House, the amendments were not considered necessary and the Bill proceeded to the other House, where it was amended. The Minister described these amendments as technical, to take account of certain changes in law since the Bill was initiated. However, I am not sure that those amendments were not known when Committee Stage was taken in the Seanad.

I am open to correction but I understood that when the Bill came before the House the Minister was attempting to grant adoptive leave to either spouse. I am not fully aware whether that was the point at which the legislation stood but speakers on both sides said that would be a most welcome innovation and that there was an absolute need for this type of legislation otherwise people adopting children would not have the same rights and entitlements as those who gave birth naturally. More importantly, all sides recognised that there was a particular need for adoptive parents to bond with the child. I note that the amendments proposed by my colleague, Deputy Woods, in the other House tried to achieve the objective of allowing adoptive leave to either spouse. The Minister did not accept those amendments and this does not reflect the tone of the debate in this House when the Bill was initiated in 1993.

I had hoped the Minister would have explained the technical reasons for the amendments rather than simply stating, for example, that a section was technically amended with reference to the Maternity Protection Act, 1994. I had hoped he would tell the House what changes had taken place since the Bill was initiated and passed by the Seanad to warrant these amendments.

The section which allows for an additional week of leave is welcome. I ask the Minister to tell me if he is happy with the fact that I, as an adopting parent, given an additional week of leave by——

Mr. Taylor

There is no additional week. The Senator misunderstood me.

Mrs. McGennis

Maybe I did. I thought the Minister said that the new subsection in section 4 ensures that an employer who gives more beneficial arrangements to an adopting parent will not be obliged to make similar provision for employees who are not adopting parents.

Mr. Taylor

That is right. The Bill says that some employers might wish to go beyond the statutory minimum provided, which is ten weeks. They may do that without there being consequences to follow that would bring inequality positions into play which might perhaps enable somebody else to make a claim for the more generous provision being made by that employer.

Mrs. McGennis

I was incorrect in specifying one week. In giving the more beneficial arrangements, whatever period they may last, I ask the Minister if he is confident that this section of the Bill reflects equality of treatment in the law. While I would argue that is the case for granting this kind of leave, I would similarly argue that a mother who has gone through childbirth should be entitled to the same kind of provisions in law as somebody who is adopting. This provision states that it is at the employer's discretion to give this leave to an adopting parent. There is no obligation to give it to someone who is not adopting. I ask the Minister if that is in keeping with equality.

As the Minister said, a lot of these amendments are technical in nature. I am still unclear as to whether the Minister intended in the initial legislation that adoptive leave could be extended to either spouse. This legislation certainly prohibits the granting of adoptive leave to the father. I may be confused, but I initially thought the Minister intended that it might be extended to either spouse.

I have no hesitation in welcoming this Bill, as I did on the first day the Minister brought it in. I know things can change and occurrences in the passage of time can necessitate the change of legislation, but the Minister's Department seems to be suffering particularly badly as a consequence of this. Bills that have been initiated have been changed substantially before they have been passed by both Houses of the Oireachtas. Is there a need to make haste slowly in a lot of occasions on some of this equality legislation? Other important Bills which I know the Minister holds dear, such as the Matrimonial Home Bill, have been struck down. Maybe there is a case for ensuring that what is enacted can be passed and can stand the test of time.

Mr. Neville

I welcome these amendments to the Bill. Amendment No. 6 — the other amendments are technical — facilitates employers to give leave in excess of that stated in the Bill. The principle that any employer can give any level of benefits to their employees is accepted in the areas of labour law and industrial relations; they have the freedom and right to do so. This amendment facilitates custom and practice throughout industry and commerce. Of course, the Bill does not prevent adoptive leave for fathers. That is at the discretion of the employer. It is not a legal right.

There have been extensive changes to this Bill since it was introduced in November 1993. It is a credit to the Dáil and the Seanad — most of these amendments came from this House — that we honed and improved the legislation and that is our duty. One would hope that the Minister, as he did on many occasions, and other Ministers accept improvements and introduce their own improvements to a Bill following Second Stage debate. That is the purpose of the Oireachtas. It certainly worked with this Bill.

Ms Gallagher

It is clear, from what the Minister has said, that many of these amendments are technical and thought worthwhile to give proper effect to the legislation. I welcome the additional section which allows for an employer to give additional rights to his employee. As has been said by Senator Neville, this is accepted in employment law and we should not criticise it. Such leeway is a sensible provision.

Section 11 of the Social Welfare Bill, 1995, also allows for the introduction of the adoptive benefit scheme. What has been put into effect in this law in allowing adoptive leave has also been put into practical effect through the Social Welfare Bill by allowing social welfare payment in that area. I am pleased to see the Departments working hand in hand.

Senator McGennis said that the Bill was substantially changed. We ought to welcome this. Indeed, that is our role as legislators. If the Bill as first initiated were to be accepted, we would be made redundant and that would not be good either for us or for democracy in general. The Minister is to be complimented on the fact that he is open to amendments and always has been, unlike previous Ministers who have come before this House.

Mrs. McGennis

The Senator's amendments were not accepted. None of them were Opposition amendments.

Ms Gallagher

The Minister has made his own changes, taking on board the points made on Second Stage. He has listened to those points and I see it reflected in the amendments.

Minister for Equality and Law Reform (Mr. Taylor)

The amendment treats an adopting mother in exactly the same way as a natural mother is treated under the maternity protection legislation — the wording of the section is nearly identical. There is full equality of treatment. The Bill never sought to extend paternity leave to men generally. I have already indicated that I would hope to address such a development in the context of parental leave and that matter is being considered at the moment in the European context.

So far as extensive changes to this or other Bills are concerned, the reason our legislative system provides for five stages of a Bill in the Dáil and the Seanad is to enable mature consideration as to the structure of Bills, amendments that may be required, to take note of comments that may be made by Members on all sides of the Dáil and Seanad and new situations that may arise in the course of Bills going through. It is right and proper that the best possible legislation should be produced at the end of the day. It is my intention, no matter how long it may take, to get the best possible legislation. Once it goes on the Statute Book, it is not easily buried or amended. It is important to get it right. I believe in using the procedures of both Houses to achieve that end and I am always interested to hear comments from Members on improving Bills, not just opposition for opposition's sake, but constructive amendments and comments on legislation as it proceeds.

The legislation will make adoptive leave available on a statutory basis — we have never had that before. I hope to be in a position to make a commencement order which will bring the Act in its entirely into operation very shortly after its enactment. All going well I hope statutory adoptive leave will be available within a fortnight or so.

The legislation will benefit employees, primarily adopting mothers, by providing for a minimum of ten weeks adoptive leave from work beginning on the day the child is placed for adoption. Adoptive leave will attract the social welfare allowance which is pitched at the same level as maternity benefit. As Senator Gallagher said, section 11 of the Social Welfare Bill, 1995, published last week, provides for the introduction of the adoptive benefit by way of regulation. The Bill also provides for up to four weeks additional adoptive leave immediately following the period of adoptive leave. In the case of a foreign adoption some or all the additional adoptive leave may be taken immediately before the day of placement.

Bill reported with amendment.

Question proposed: "That the Bill do now pass."

Ms Honan

I congratulate the Minister on bringing the Bill through both Houses. I am pleased that adoptive leave will be available on a statutory basis within two weeks. The Commission on the Status of Women recommended the introduction of adoptive leave. As a member of the commission, I welcome the recognition of the needs of adopting parents and their children. The commission made other recommendations on paternity leave and leave for family responsibilities. Perhaps now that the Minister has dealt with adoptive leave, he could turn his attention to these matters. It is important that paternity leave is introduced and that family leave is available to both parents because family responsibilities should not only be the responsibility of the women. We must ensure that child care, home and work duties are shared. We must do what we can through legislation to encourage this. I encourage the Minister to consider this as quickly as possible.

Mrs. McGennis

I congratulate the Minister for introducing this legislation. This is not simply a statutory instrument to allow an adopting parent take leave and to ensure they do not lose out financially as a result, it is a broader statement, which I welcome. The Minister should not interpret criticism as personal. I have never opposed anything for the sake of opposition. Senator Neville made comments and suggested amendments to improve legislation when he was on the Opposition benches. All Governments should open up a little more to Opposition amendments. We could be back on the Government benches next month. It is good that there are many stages to approve and amend legislation and this is the proper way to deal with legislation. I would ask the Minister with whom we were in Government and may be again, and my party to lighten up a little. There is nothing wrong with accepting Opposition amendments in the Dáil or the Seanad. When we reach that stage, we might have true democracy with legislation which is sound and will stand the test of time.

Mr. Neville

I also welcome the passing of the Bill almost a year and four months since it was introduced in the Seanad and that it will be implemented so quickly after passing through the Houses. The Minister said my amendments were outside the scope of the Bill although I was trying to improve the situation in regard to adoption in general. The Minister made a commitment to look at the amendments which I proposed to include in the Bill and I will hold him to that commitment. I am sure Senator McGennis will assist me, although she was silent when I put these cases some of months ago.

Mrs. McGennis

Senator Neville did not support me today now that he is on the Government benches.

Ms Gallagher

I congratulate the Minister on the amount of legislation he as put through and initiated in this House. I am delighted the Adoptive Leave Bill, 1994, will become law a few weeks after its enactment. It will be of benefit to people, who through no fault of their own, have been unable to have children and are anxious to follow adoption procedures. It is apt that this legislation should come into force, particularly when there is so much controversy about abortion legislation, because it upholds the right to life.

Minister for Equality and Law Reform (Mr. Taylor)

I would like to draw the attention of the House to the transitional arrangements provided for in the Bill. These arrangements will be of particular interest to employed adopting mothers who have had a child placed with them since the middle of February. These employees will have missed out by weeks, the opportunity to benefit in full from the leave provisions of the Bill. However, Senators will recall that as a result of amendments to the Bill made in this House, most of these employees will be entitled to a portion of the minimum period of ten weeks adoptive leave and to the four weeks additional adoptive leave. These transitional entitlements must be taken up by eligible employees immediately following the coming into operation of the legislation. The arrangements would apply similarly in the case of a sole male adopter.

I thank Senators for the way the received this Bill. The Seanad has dealt carefully with the various proposals. I am particularly conscious in the case of this Bill of the painstaking work undertaken in this House last autumn when approximately 100 Government amendments were taken on Committee Stage. We ensured that the proposal which now passes into law is an effective and useful addition to the corpus of employment protection legislation. I would like to express my thanks and appreciation to the officials in my Department who worked hard to bring us to this point.

Question put and agreed to.

An Leas-Chathaoirleach

When is it proposed to sit again?

Mr. Neville

At 2.30 p.m. on Monday, 13 March 1995.