This Bill implements the EU Directive on Parental Leave. It will give parents an entitlement to leave from work to take care of their young children. It will also give employees a limited right to time off from work for family crises.
The Parental Leave Directive, adopted in June 1996, incorporates a framework agreement which was negotiated between the social partners at EU level. This framework agreement set the broad parameters for parental leave but left much to the discretion and interpretation of member states. The directive stipulates a minimum of three months leave for each parent to be taken in the initial years of the child's life up the age of eight. This leave is distinct from maternity leave. The directive provides that the leave should, in principle, be non-transferable between parents. Employees must be guaranteed a right to return to work and must be protected against dismissal. So long as the minimum requirements of the directive are met, it is left to member states to determine issues such as whether the leave is paid or unpaid, what pattern of leave is to be allowed, the maximum age of the child and matters relating to social security.
In addition to providing for parental leave, the directive provides that workers must be given the right to force majeure leave, that is, time off for family crises resulting from illness or accident. Again, the directive gives member states discretion in developing the details of force majeure leave.
The key objectives of the Parental Leave Directive are the reconciliation of work and family life and the promotion of equal opportunities and treatment between men and women. These aims are highly relevant to Irish society today. Over the past 25 years there has been a massive growth in the numbers of women in the workforce here. Between 1976 and 1996 the numbers of women in the workplace grew by 212,000, reaching 488,000 in 1996. The growth in the number of women at work has accelerated in recent years. Indeed, the growth in women in the workplace in the five years between 1991 and 1996 — just over 100,000 - almost equalled the growth of women's employment in the previous 20 years. The most recent Labour Force survey published by the Central Statistics Office last year estimates that the number of women at work was over 512,000 - or four in every ten people at work. In the case of women aged 25 to 44, nearly two thirds now work outside the home. There has been a huge increase in the number of married women at work. In 1971 only 14 per cent of the women in the workforce were married, but by 1996 married women accounted for 47 per cent of women workers.
These changes in the structure of the workforce have led to a growing awareness of the need to reconcile work and family life. The traditional family in which the father is the breadwinner and the mother is the stay-at-home carer of the children is still strong but is no longer dominant in our society. There has been a rapid increase in the numbers of other types of families including families of dual earners, single parent families and families where the mother is the sole earner. A study carried out for the Commission on the Family showed that, among families with a child aged under 15, only 49 per cent had one earner, 36 per cent had two earners and the remaining 15 per cent had no earner. These developments are helping to break the mould in which labour is divided between fathers as providers and mothers as carers.
In this changing society there is increasing recognition of the need for measures which will help parents to reconcile the competing demands of work and family. The introduction of parental leave will not only facilitate the increasing numbers of mothers in the workforce but, equally importantly, will provide working fathers with practical means of involvement in the care and upbringing of their young children. The force majeure leave, which is also being introduced under the Bill, recognises the reality that family responsibilities are not confined to those with young children. It reflects the fact that all workers, men and women, may find themselves faced with an emergency caused by the accident or illness of a family member.
The EU Directive on Parental Leave sets broad parameters but gives considerable latitude to member states in drawing up their national schemes of parental leave. I will now outline some of the considerations which shaped the Bill.
At the time the EU directive was adopted, Ireland, Luxembourg and the UK were the only member states which did not already have some form of statutory parental leave. We therefore had to start from scratch in developing our parental leave scheme, while most other member states had only to make any modifications to existing schemes which were necessary to comply with the directive. In view of the social protocol, the directive did not originally apply to the UK but was extended to include the UK in December 1997. The UK, therefore, has two years from that date in which to introduce parental leave.
In developing the Bill, my Department examined the existing schemes in other countries, including the EU member states. I should caution, however, that because of the nature of the information available, the differing social security systems in the various member states and the diversity of parental leave schemes in operation, it was difficult to draw firm conclusions from this material. Indeed, from our examination of the position in other member states, it is difficult to speak of any kind of norm. In almost every dimension, be it the upper age limit of the child, the pattern of leave available or the issue of payment, there is much variation between member states. Existing domestic legislation dealing with maternity protection and adoptive leave also provided useful models, but as maternity and adoptive leave are both based on particular events, the Bill necessarily differs from the earlier legislation in many respects.
Consultations with the social partners were another key factor in the development of the Bill. The requirement for such consultations derives from the terms of the directive and is also written into Partnership 2000. My Department has had intensive consultations with IBEC and ICTU about the contents of the Bill. I and my of officials have met these organisations on several occasions, both within the framework of Partnership 2000 and elsewhere, and have given full and detailed consideration to the oral and written submissions which they made. Obviously, as ICTU and IBEC had opposing views on many issues relating to parental leave, it was not possible to draw up a scheme of parental leave which would entirely satisfy both organisations.
In drawing up this measure my Department had to balance a diverse range of factors. We took into account existing parental schemes in other countries and the divergent views of the social partners. We sought, subject to meeting the requirements of the directive, to develop a scheme which would suit Irish needs and conditions. We wanted a scheme which would be workable; would not be unduly difficult to administer; and which would give clear entitlements to workers but leave flexibility for local agreement. We also wanted to strike an appropriate balance between the rights and expectations of workers and the needs of business and the economy as a whole.
I do not claim to have achieved perfection. I am also conscious that parental leave and force majeure leave represent a new departure in Irish working life and that these new rights will apply to employees in employments of all sizes and types. For this reason, as I will outline later, I have made statutory provision for the scheme to be reviewed within three years.
A key issue which we had to consider in drawing up the Bill was whether it should be paid, either by the employer or by the Exchequer, in the form of a social welfare benefit. The Government has decided not to provide paid leave. To require employers to provide pay for the person who is absent on parental leave for 14 weeks, in addition to the cost of a replacement for that person, would not only be costly for individual employers but would be fundamentally damaging to Ireland's competitive position. I do not think this can be regarded as a serious proposition.
Were the Exchequer, on the other hand, to provide a benefit similar to maternity leave to all persons who took parental leave, the estimated cost would be £40 million a year in social welfare benefits alone and there would be substantial additional Exchequer costs arising in relation to the many public servants who do not pay full PRSI. I do not regard expenditure on this scale as being warranted.
The picture in other member states is hugely variable and it cannot be said that paid parental leave is the standard. While seven member states — Sweden, Finland, Belgium, Denmark, Germany, Austria and Italy - provide some form of payment, the others provide no payment or do so only in restricted circumstances. It has also been asserted that only if leave is paid will men avail of it. However, with the exception of Sweden, the take-up rate by men is extremely low, even where the leave is paid. In Germany, for example, only 1 per cent of all eligible men take parental leave. The existence of a link between payment and male take up cannot be demonstrated in countries where paid parental leave operates.
I emphasise that there is no requirement under the directive that parental leave be provided on a paid basis. The social partners who negotiated the framework agreement left this issue for decision by member states. In view of the significant potential cost to the Exchequer of providing a social welfare benefit for such leave the Government does not propose to provide for parental leave on a paid basis.
The Bill provides, however, that employees on parental leave will be treated for the purposes of all employment rights, other then remuneration and pensions, as if they remained at work. This means that time spent on parental leave will be counted as service for the purposes of promotions, increments, annual leave, etc. This was left open in the directive but it was decided that, in order to enhance the attractiveness of the scheme, the time involved should be reckonable as time at work.
I am also arranging, in consultation with my colleague, the Minister for Social, Community and Family Affairs, Deputy Dermot Ahern, that time spent on parental leave will be credited for social welfare purposes where necessary. This means that no worker will lose out on his or her long-term or short-term social welfare benefits because of time spent on parental leave. The necessary arrangements do not form part of the current measure but will be put in place by the Department of Social, Community and Family Affairs once the Bill is enacted.
In the case of force majeure leave, however, different considerations apply to payment. As Senators will note, the Bill sets tight limits to the amount of force majeure leave which an employee can take in a three year period. Given these limits and the requirement for validation by way of medical certificate, it was decided that the most administratively practical arrangement was to provide force majeure leave on a paid basis.
I reject most emphatically any notion that this is a "minimalist" Bill. It is a balanced measure which more than meets the bare requirements of the directive. I have already mentioned some of the features, such as the reckonability of parental leave for service purposes, the payment for force majeure leave and the protection of social welfare rights which were not absolute requirements under the directive. I draw attention to the fact that the Bill allows parental leave, by agreement between employer and employee, to be taken as a number of “broken” periods or by working reduced hours.
Many existing parental leave schemes in other countries do not afford such flexibility. Furthermore, although the directive does not specify any form of retrospection, the Bill provides that parental leave will apply to parents of children born on or after 3 June 1996. Parents of a child now aged up to two will, therefore, qualify for parental leave. As regards the maximum age of the child concerned, it was possible to set this somewhere between two and eight within the terms of the directive. Only Sweden and Denmark have an upper age limit of eight, with most member states setting it at about three. We decided to set the limit at five by which age almost all children have started school.
There have been some comments and questions in recent weeks about a so-called "derogation" which my Department obtained from the terms of the directive. I wish to emphasise that no derogation has been sought from the EU Commission and that it is intended to comply fully with the terms of the directive. It sets a deadline of 3 June 1998 for its transposition into national law, but provides that member states can have a maximum additional year in case of special difficulties. In February last, my Department contacted the EU Commission seeking to delay transposition of the directive here by six months, that is, to 3 December 1998. This approach was made because of an assessment at that time of the timeframe for enactment of the legislation and our knowledge of the potential difficulties for employers of having to implement the legislation immediately after the enactment of the Bill. The Commission acceded to this request, confirming that this would be fully in compliance with the directive.
I intend to bring the scheme into operation on 3 December 1998 in line with the approach to the Commission. This interval will enable employer and worker organisations to inform their members about the implications of this measure. It will allow employers to put systems in place and allow for any necessary modification to existing non-statutory leave schemes which operate in some employments. It will also allow the secondary legislation to be put in place, facilitate Departments in making consequential changes and generally permit the smooth introduction of the scheme.
The Bill is divided into five Parts as follows: Part I contains preliminary and general provisions; Part II sets out the basic entitlements and conditions for parental leave and force majeure leave; Part III deals with the employment rights of workers who take parental leave or force majeure leave; Part IV sets out the mechanisms for resolving disputes about parental leave or force majeure leave, and Part V contains miscellaneous provisions.
Part I has general and mainly standard provisions. Senators will note the operative date of 3 December 1998 which is in section 1. I also draw attention to section 4 which ensures that the provisions of the Bill cannot be nullified or limited by any other agreement but which allows for arrangements which are more favourable to employees than those provided in the Bill.
Part II sets out the basic entitlements and conditions of parental leave and force majeure leave. The salient features of the parental leave entitlement, as set out in section 6, are that the natural or adoptive parent of a child is entitled to 14 weeks parental leave for each child born, or adopted, after 3 June 1996, which is the date the Parental Leave Directive was adopted. Parental leave must, in general, be taken before the child is five, but this limit may be extended for an adopted child. The employee must have had one year's continuous service in the employment before taking parental leave, but provision is made for an employee who has not had such service when the child is approaching the upper age limit. The leave is not transferable between parents, that is, the mother may not take the father's share and vice versa.
Under section 7, parental leave may be taken as a continuous block of 14 weeks or, by agreement between employer and employee, the leave may be spread over a number of periods by part-time working, etc. A parent with more than one child under five may not take more than 14 weeks in a year unless the employer agrees to this.
Section 8 deals with the notice requirements for parental leave. It provides that an employee must inform the employer at least six weeks in advance when he or she intends to start the leave, how long it is for and when it is to be taken. The employer may require supporting evidence of the child's date of birth, parentage, etc.
Under sections 9 and 10, the employee and employer must confirm the leave four weeks before it is taken and once it has been confirmed, both employer and employee are committed to this leave. This confirmation is necessary to enable both employer and employee to plan with certainty but they can, by mutual agreement, vary or curtail the leave after it has been confirmed.
Section 11 allows an employer to postpone parental leave for six months if the leave would have a substantial adverse effect on the business because of seasonal factors, the size of the business, other employees on parental leave, difficulty in getting a replacement, etc. The employer cannot, however, postpone leave that has been confirmed. This facility for postponement provides a necessary safeguard for employers and is in keeping with the terms of the directive.
Section 12 deals with abuse of parental leave. It enables an employer to terminate the parental leave of an employee if he or she has reasonable grounds for believing that the leave is being abused. The employer may also refuse to grant leave to an employee if he or she thinks that the employee is not entitled to it and he or she must set down in writing the reason for such refusal.
Section 13 sets out the basic entitlement to force majeure leave. An employee may take paid leave from work if he or she is urgently needed because of injury or illness of a family member. This leave is limited to three days per year or five days in three years.
Part III deals with employment rights of an employee who takes parental leave or force majeure leave. Under section 14, an employee who is on parental leave will retain all employment rights, other than the right to remuneration or pension rights, while on such leave. This means that although the leave is unpaid, the employee will continue to accrue service for the purposes of increments, annual leave, etc. As I mentioned, existing social welfare rights will be protected by the award of credited contributions during the period of leave where necessary. Such arrangements do not come within the scope of the Bill but will be put in place by the Department of Social, Community and Family Affairs. In the case of force majeure leave, however, the employee is treated in all respects, including pay, as if he or she remained at work. As I mentioned, it was considered administratively impractical to do otherwise for such a limited amount of leave.
In the remaining sections of Part III, provision is made for the employee's return after parental leave to the same job or, where that is impractical, to suitable alternative employment. These provisions are similar to those already in existence for maternity leave and adoptive leave.
Part IV provides for the resolution of disputes about parental leave or force majeure leave. The redress mechanisms are modelled on those in place for disputes about maternity leave and adoptive leave. With the exception of disputes about dismissals, which are covered by other legislation, disputes can be referred by an employee or employer to a rights commissioner. A decision of a rights commissioner may be appealed to the Employment Appeals Tribunal: there is an appeal from the tribunal to the High Court on a point of law and decisions of a rights commissioner to the tribunal may be enforced by order of the Circuit Court.
Senators may wish to note the various forms of redress which a rights commissioner on the tribunal may order under section 21. These include compensating the employee with an award of up to 20 weeks' pay, granting parental leave at a particular time, extending the upper age limit of the child, postponing the leave because of its adverse effects on the employment and, where there has been a serious change in the circumstances of the employer or employee, curtailing, postponing or varying parental leave.
Part V contains miscellaneous provisions, including the manner in which notices are to be given in proceedings under the Act, how compensation payable under the Act is to be treated in the event of winding up or bankruptcy and a series of consequential amendments to other enactments. These are essentially technical provisions and are covered in the explanatory memorandum circulated with the Bill. Senators may wish to note, however, the requirement of section 27 that employers keep records of parental leave and force majeure leave and that such records be open to inspection by inspectors under the Organisation of Working Time Act, 1997. Such records can be used in the event of a dispute or if there is uncertainty about the entitlements of an employee who changes jobs. Section 28 requires the Minister to review and report on the operation of the Act within three years of its commencement, in consultation with representatives of employees and employers. I am conscious of the novelty of parental leave to Irish working life and the fact that it will apply to employees in a variety of employments. This review will provide an opportunity to assess provisions of the Act in the light of experience of its operation.
I regard the Parental Leave Bill as a significant element of the equality agenda for which my Department is responsible and to which I am fully committed. The Bill will give new rights to employees, both men and women. It provides an opportunity to reconcile work and family life and to share child care responsibilities between men and women. Employers should view it not as a burden to be endured but as something which reflects the realities of modern life and which can benefit them in terms of retention of skilled employees, employee goodwill and reduced absenteeism. Today's measure is in keeping with the terms of an EU directive to which both employer and employee organisations subscribed.
In accordance with Standing Order 103 I am obliged to request the Cathaoirleach to instruct the Clerk of the Seanad to make the following versional corrections which arose as a result of a printing error in the Bill as initiated:
In page 7, section 7(2)(a)(ii), line 29, to delete "the week" and substitute "each week".
In page 7, section 7(2)(b), lines 31 and 32, to delete "the period of 14 weeks or the period of one year" and to substitute "a period of 14 weeks".