Parental Leave Bill, 1998: Committee and Remaining Stages.
I move amendment No. 1:
In page 3, lines 15 and 16, to delete subsection (2).
This amendment proposes the deletion of section 1(2) which would allow a derogation until 3 December 1998 in terms of the Bill's operation. The Government appears to claim that this type of derogation already exists but the directive makes it clear that the Commission has no power to issue a derogation of this nature to the Government. If a member state wishes to defer implementation of the directive, it should state serious reasons for doing so. However, the Government has not stated any reasons.
I presume it is intended to have the Bill passed by the other House before the summer recess. However, it appears the extension the Government has decided to implement is in breach of the European directive because it has not stated any grounds for it. No member state has been granted an extension in terms of its implementation. It appears the operation date of 3 December has been pulled from the air and that the Minister wants another six months for no particular reason. Serious reasons for the deferral of the implementation of the directive should be stated. The Minister has not stated any reason and, therefore, the subsection should be deleted and the Bill should become law as soon as it is passed by both Houses of the Oireachtas and signed by the President.
I understand Senator Costello's position but the Bill will introduce a major new scheme. Ireland might be one of the last countries in Europe to implement the EU directive but, as an employer, I am aware that practical difficulties are involved in setting up the scheme. The date of 3 December is only a few months away and the delay is not unreasonable from the point of view of employers who must put the structures in place. I differ from Senator Costello on this matter. The date of 3 December is practical.
The Bill states that an employee must give notice of his or her intention to apply for parental leave and an agreement must be drawn up between him or her and the employer. This will take time to arrange and this breathing space is necessary for employers. Therefore, I oppose the amendment.
The directive has a flexible aspect which means that employers cannot use the directive to prepare for parental leave in their workplaces. Until the Bill is enacted, the details of the scheme will not be certain.
The purpose of the deferral of the implementation of the scheme until December is to allow employer organisations to provide information to their members, enable systems to be put in place for the operation of the scheme and enable any regulations to be made which would allow for the reconciliation of the parental leave andforce majeure schemes within existing non-statutory schemes of special leave. It will generally permit the smooth introduction of the scheme. It would be impractical to have such a new departure in working life brought into effect immediately. The operative date of 3 December is in full compliance with the terms of the directive. This has been confirmed to the Department by the EU Commission.
Question, "That the words and figures proposed to be deleted stand", put and agreed to.
Amendment declared lost.
Section 1 agreed to.
I move amendment No. 2:
In page 4, subsection (1), line 10, after "including" to insert "a member of the Garda Síochána or the Defence Forces or".
The amendment relates to the category of employees who are entitled to parental leave and seeks the specific inclusion of members of the Garda Síochána and the Defence Forces. In the corresponding definition of employee in the employment equality legislation, members of the Garda Síochána and the Defence Forces are expressly mentioned. In those circumstances it would be appropriate to specifically refer to them in the Bill.
I will accept the amendment.
Although it may not be necessary to make explicit reference to members of the Garda Síochána and the Defence Forces, it is usual in legislation which defines an employee to make such a reference.
Amendment agreed to.
Section 2, as amended, agreed to.
Government amendment No. 3:
In page 5, between lines 22 and 23, to insert the following new subsection:
"(2) Before making a regulation under this Act, the Minister shall consult with persons whom he or she considers to be representative of employers generally and persons whom he or she considers to be representative of employees generally in relation to the regulation.".
The amendment will require the Minister to consult with employer and employee representatives before making regulations under the Bill. This is in line with the spirit of the EU Directive on Parental Leave and will be of practical use to the Minister in drawing up such regulations.
Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 and 5 agreed to.
I move amendment No. 4:
In page 6, subsection (1), line 6, to delete "14" and substitute "18".
The amendment relates to the entitlement to parental leave. The Bill as it stands specifies a period extending to 14 working weeks to enable a person to take care of his or her child. The amendment proposes a move away from the bare minimum period contained in the directive and the extension of the period to 18 weeks. This would show generosity and is not unreasonable.
The Bill includes the minimum period specified in the directive but a degree of imagination should be shown in terms of Ireland making a decision to extend the period. An extra month of unpaid parental leave would recognise the increasingly onerous work required of parents. The Bill should not be viewed as a vehicle to implement the bare minimum of a troublesome legal obligation under a European directive. This matter should be viewed in a generous fashion and legislators should facilitate parents to fulfil their duties to their children to the best of their ability.
I support the amendment and favour the inclusion of an 18 week period.
If Senator Costello was serious about this matter, he would have been consistent in his amendments by also referring to section 7. Perhaps the Senator does not understand what operating a business involves. It is difficult to manage a small business in peripheral areas such as the west. While the Bill acknowledges the need to balance family life and assist parents in spending more time with their young children, it would be impossible to manage 18 weeks of parental leave for each parent. The Bill proposes a period of 14 weeks per parent, giving a total of 28 weeks for both parents. It would be totally unmanageable to increase the period to 18 weeks for each parent given the current climate and skills shortages. I am the mother of three young children and I am sympathetic to the needs of family and home life but there must be balance. It is opportunistic to suggest that we should increase the 14 week period to 18 weeks and it is an insult to the Government to suggest we are introducing minimalist legislation.
I do not propose to accept this amendment. The parental leave directive stipulates a minimum entitlement of three months parental leave and, bearing in mind the novelty of parental leave in this country, the duration of the leave is set at 14 weeks. There is already a statutory entitlement to 14 weeks maternity leave with four additional weeks of unpaid maternity leave. The parental leave will be added to the existing entitlement. As Senator Cox pointed out, the entitlement is 14 weeks for each parent for each child. Senator Cox made a further relevant point — the proposed amendment is at variance with the provision of section 7. If accepted it would make the Bill internally inconsistent.
I do not understand why the Minister has a problem with the fact that parental leave has just been introduced. Could we try not to be so gloomy about it? The great increase in the number of married women in the workforce is due to the increasing flexibility in working hours and maternity leave and, I said on Second Stage, the State has received a huge economic dividend as a result.
While we would like a longer period, I congratulate the Minister on the introduction of this legislation which will not be an economic disaster for the State, like everywhere else only the women will take the leave. We should not look at this as something which will bring the State to its knees.
I am disappointed with the Minister's reply. This directive has been around since the summer of 1996. While the previous Government did not have much of an opportunity to introduce it, it is a directive the Minister had to introduce and it has been introduced after most other European countries.
Parental leave can be taken over a five year period; it need not be taken at the one time. Child rearing is becoming increasingly difficult and if we examine the statistics of women in the workforce we see there has been a disproportionate number of women entering the workforce in comparison to men — the ratio is 4:1.
This is an important matter and we must deal with it on the basis of parental leave, not male or female leave. As sharing of labour becomes part and parcel of our society, why should there not be a sharing of child care? As there is a statutory right to paid maternity leave for a 14 week period, with an extra four week period of unpaid leave, I do not see the problem with giving that notional 18 weeks to everyone rather than adopting the minimalist approach indicated in the legislation.
The fact that there is no amendment to section 7 is an oversight. I would have expected that, had the Minister accepted this amendment, it would have continued into the next amendment. This Bill is being taken in the Seanad and the Minister has ample opportunity to deal with amendments before it goes to the Dáil.
It is important to point out that the period of leave is 14 weeks per parent per child. I have two children for whom I could take parental leave, a total of 28 weeks before both children are five years old. If my husband or partner worked in the same business, the company would lose one worker for 14 weeks for each child and then lose the other parent for the same length of time, in addition to maternity leave and four weeks unpaid maternity leave. This is a strong move in equality legislation and as an employer I refute the need for 18 weeks parental need.
Question, "That the figure proposed to be deleted stand", put and agreed to.
Amendment declared lost.
I move amendment No. 5:
In page 6, lines 8 to 10, to delete subsection (2).
The subsection reads:
"The entitlement to parental leave shall apply only in respect of a child born on or after the 3rd day of June, 1996, or a child in whose case an adoption order has been made on or after that date.".
Deleting that subsection would let the legislation apply irrespective of when the child was born so that leave can be taken at any time up to a period of five years rather than specifying the starting date of 3 June 1996. That is the day on which the directive was proposed. I do not see why the operation of leave should be limited to that date. Why can it not state the parent of a child up to the age of five from the time this legislation is passed should be entitled to the provisions of the legislation? There is a minimalist approach here. Why can it not be more generous?
The concern shown in this regard bothers me because the last Government had over 12 months to deal with this. Minister O'Donoghue made it clear this EU directive gave flexibility to each government to introduce legislation within certain parameters. Backdating the operation of the scheme to 3 June 1996 indicates the flexibility of this Government. It indicates fairness and I see no merit in the proposed amendment. If it was so urgent, why did the last Government leave the matter for 12 months without even initiating it? This Government has initiated it and its thrust is welcome. I accept the date of the directive was 3 June 1996 and I see no point in going back before that date. We are fully in compliance with the EU directive in the legislation as drafted.
There are children born in 1993 who could be eligible under this Bill. The Government has not been generous in the time allowed because when we realise that no payments are allowed to parents on parental leave. I appeal to the Minister to yield on this issue. It was fine to backdate the legislation to when the directive was introduced. If one takes it back five years, children born in 1993 would qualify and many parents would be glad to avail of that provision. I appeal to the Minister to accept the amendment on those grounds.
I am sorry to pursue the same point again. However, there must be a recognition that paternal leave will only work if there is sustainable employment. If companies face a situation in which the parents of children up to the age of five started to take parental leave, there would be applications from parents whose children were born from June 1993 onwards. If both parents took leave it would amount to 28 weeks.
The economy is facing tremendous challenges such as the introduction of the euro and the year 2000.
There must be a balance between what we do for the family and what we do for business. The Opposition is incorrect in calling this a minimalist attitude. Employers must be treated fairly and there is a need for fairness and equity. I am not only speaking on behalf of employers, but we must run businesses as well as look after children at home. If businesses do not exist there will be no jobs from which people can stay at home.
If children are not reared there will be no one to work in those jobs.
This debate reflects the many submissions received by the Department regarding the concerns of employers and employees. The directive on parental leave does not specify any form of retrospection. We have to balance employers' concerns that people would seek backdated parental leave at the same time. I am not sure how old Senator Cox's third child is, but the Senator might immediately apply for parental leave for her eldest child and for the other two children immediately thereafter. She would be entitled to 42 weeks as would her husband.
There are small firms employing couples with two or three children. Companies, particularly small companies, were concerned about this. The Government decided to balance the expectation of parents, especially those referred to by Senator Connor who might expect that this legislation would apply to them, and the concerns of employers about a backlog. It was decided that parental leave should be given to the parents of children born after 3 June 1996, the date of the adoption of the directive.
The proposed amendment would create difficulties for employers. It is not required under the directive and we took the operative date as the balance. This legislation must apply from 3 June 1998 — the final operative date. We are going back two years to 3 June 1996. It is not usual to backdate legislation. My child was born in September 1995 when there was no parental leave so I do not qualify.
We will compromise — three years.
We are backdating it to six months beyond my child's date of birth. There are many complications for employers concerning the implementation and the backdating of the legislation. For those reasons we struck a balance by opting for the date of the directive — 3 June 1996.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 6:
In page 6, subsection (3)(a), line 13, to delete "5" and substitute "8".
Perhaps I have the Minister this time as the directive refers to eight years as the maximum period. I hope the Minister will not reduce the maximum number of years proposed by the directive.
The directive states that parental leave should be available to parents up to a maximum of eight years. In this case the Minister has decided on five years as the maximum period she is going to allow. Will the Minister extend the period of time for which parental leave is available? It does not go against any of the points raised by the Minister or Senator Cox on the ability of business to function if parental leave is taken. Employers should welcome this measure along with parents as it would give them greater flexibility.
Only two EU countries have gone for the age of eight, some have gone for less than five years. Five years is a reasonable period. On Second Stage I was interested in the contribution of Senator O'Toole, who heads the INTO. He stated that five years was too much and that perhaps four was more reasonable. I respect the views of the Senator, given his position. Five years of age is a reasonable period and we would be more the exception than the rule in Europe if we extended it to five. This would further complicate difficulties for employers.
In Germany only 1 per cent of working men took up their right to parental leave. The same would apply here where only a small percentage of men would opt to take their leave. This is a startling statistic which may auger badly for men. The figure may be higher in other countries but it will still be a small percentage of the overall male working population. Five years of age is reasonable.
I am a little left out of this debate as I do not have children to whom parental leave would apply unless there will be a directive on grandparental leave. I am not yet a grandparent but I do have an interest in this new and welcome provision. I disagree with the minimalist approach of the Government. Some Senators, particularly Senator O'Donovan, are being very selective when referring to what is available in Europe. Ireland rated poorly in the list in the report on the status of women in Ireland. I cannot see anything wrong with acknowledging the needs of children. A child is not defined as responsible for his or her actions until seven years of age. It would be a generous and welcome gesture to increase the age to eight.
I support the proposal that the age limit be raised to eight years of age. I am not a parent so I do not have such experience and I am unlikely to be a parent in future. Nevertheless, I had the opportunity to study sociology, the manner in which children are influenced and socialised and how this affects them when they become adults. There is no greater influence on a child than that of their parents. People who study behavioural science and sociology agree that the most formative years of a child's life are between four and eight. The Cathaoirleach has experience from the classroom of children and their socialisation. It is important that children have maximum contact with their parents during those formative years up to age eight and it is for that reason I support the amendment.
There are enormous problems in society with juvenile delinquency and the deviant behaviour of some young people, although it is in many ways no worse in this generation than in others. Much of it can be traced to a lack of contact in formative years between parents and children and a corresponding lack of influence. We must be conscious of that because it is like making an investment. People have argued about the economic effects on employers of extending the limit from five to eight years and of paying parents on parental leave. There is another aspect to it. We should think in terms of people who do not conform to the norms of society and who cause enormous problems, because these can often be traced to the fact that they did not have adequate contact with their parents. It is a major problem which has severe economic and social consequences. The debate so far seems to have lost sight of that.
I object strongly to what Senator Connor has said unless he can prove that some of our social and economic problems are as a result of children suffering a lack of parental contact. It seems to suggest that the phenomenon of women going out to work and not being at home is one of the reasons for a higher rate of crime. I assume that is not what he meant.
It is not and the Senator knows that. The Senator is trying to deliberately misrepresent me.
I am not trying to misrepresent the Senator but his points needed clarification.
On the issue of extending the age limit from five to eight, most children attend school for the first time between the ages of four and five. However, I have great sympathy for the amendment although I am not in a position to support it. Perhaps the Minister of State might address the issue with the Minister, Deputy O'Donoghue, with a view to seeking a compromise. Extending the limit to seven may, perhaps, make matters easier for employers. However, it creates a problem for employers in terms of keeping records. If a person can avail of 14 weeks' leave up to age seven for their child, it would be necessary for employers to keep more records thus potentially opening the system to greater abuse. As a parent, I would sympathise with the extension of the limit to seven and I ask the Minister of State to consider it at a later stage.
It is important to remember that the Bill gives parents more time with their children and I know that is the Minister's aim. While the economic consequences for employers is important, so also is the economic consequences to the country of bad parenting. Parents who are not in a position to give their children attention or who are not in a position, as Senator Cox is and I was, to have excellent child care for their children are in great difficulty. That is one of the reasons for the repeated request for better, affordable child care for those who must work. It is important children have good care when their parents are working outside the home.
I understand the Minister of State's difficulties about the number of years for which parental leave should be allowed. I also understand why five would be chosen as this is the age at which children go to school. I was interested that Senator O'Toole stated that three would be a better age. It seems the INTO has started recruiting from the ranks of those working in nursery schools and that, from now on, the right time to go to school is three. As the Minister of State intends to review the legislation in two years, perhaps she could give her views on extending the age limit at a later date. Children are not selfmotoring at age five and it is very difficult to organise them in terms of visits to the dentist or doctor, accompanying them on important occasions or attending parent-teacher meetings which are now generally held in the afternoon. We should not underestimate the importance of parents being present.
When Senator Quinn spoke on Second Stage, he stated how careful Europe had to be to avoid having so much social legislation that it would be less able to provide jobs. However, I suggest that he examine the social scene in America where some people need three jobs a week to support their families. Social and economic progress always go hand in hand and this Bill is an effort to combine both sides of that progress, which is why I commended the Minister of State for introducing it. Perhaps when it is being reviewed, she could see her way to extending it.
I will not repeat what I said on Second Stage but I am concerned about any strengthening of the Bill which will make it less attractive for potential employers to consider employing people in future. While I understand that the difference between three, five or eight years does not necessarily lengthen the time people take off and that it is unpaid leave, I believe five years is the right age limit as it is the age at which most children start school. The Minister of State should be careful about making changes because she should ensure the Bill does not become a discouragement to those considering creating jobs as opposed to those who hope someone will create jobs for them.
On the point of our approach being minimalist, the directive allowed the age limit to be set anywhere between two and eight.
Two would have been a minimalist approach. Two countries set the age at eight. We determined that five was a fair balance having examined the approach taken in other countries. For example, in Austria, the age limit is two, in Belgium it is four, and in France and Germany it is three. We are setting the age limit at five. We believe it strikes a fair balance.
As regards the point made by Senator Quinn, IBEC was in contact with the Department and it was anxious we opt for the lower limit as it would be easier to record and administer. It is important to note that as parents move from one place of work to another, employers must keep records, which can become complicated. For example, parents could in their first employment take three weeks for their first child, two for their second and a month for their third. They could then move on to second and third employments. These records must to be kept for five years in this country, for fewer years in other European countries and for eight years in Sweden and Denmark. The Government decided on five years as a fair and happy medium. It is the age at which children in Ireland start school.
Senator Henry asked if the age could be reviewed at the review stage. The review stage takes place after two years and no later than three years and the legislation as passed will be reviewed at that time. The age of five years is a fair balance in comparison with the situation in Europe and particularly in view of IBEC's concern that more than five would be too high. Even Senator O'Toole, who struck a chord with most Members during the debate on Second Stage, was concerned that the age of five was too high.
He was beating his own drum.
Children in Ireland start school at five years of age. That is why the Government decided five years would be a fair balance.
Question, "That the figure proposed to be deleted stand", put and agreed to.
Amendment declared lost.
I move amendment No. 7:
In page 6, lines 19 to 22, to delete subsection (4).
This subsection which the amendment proposes to delete provides that an employee must have completed one year's continuous service.
There is nothing generous in how the Minister of State is implementing the EU directive. There is no intention to enhance the employee's rights. There appears to be a continuous acceptance that the employer rules the roost and that the requirements of the employer are uppermost rather than taking into consideration the important role of parents in rearing children. The requirement for one year's continuous service underpins that acceptance.
We should have greater consideration for the rights of employees as parents rather than thinking exclusively of employers, as appears to be the case in this minimalist implementation of the directive. As Senator O'Donovan said, the take-up is so small in the countries where it is operational that we should go out of our way to facilitate it. The subsection should be deleted or the period of continuous service should at least be reduced to six months.
If this subsection were deleted it would be possible for an employee to join a company and after one week's service apply for 14 weeks paternal leave in respect of their first child, another 14 weeks in respect of the second child and a further 14 weeks in respect of a third child.
It must be remembered that an employer appoints a person to a vacancy to do a job. The system could not work if, after one week or even six months of service, an employer was obliged to let an employee take paternal leave for 14 weeks. I would love if it could work but in the current competitive business environment it would not, and if it would not work it would be of no benefit to either the parents or the employers.
This is not a situation where the employer is king. We are trying to strike a balance between the rights of children and the right of parents to have as much time as possible with young children on the one hand and on the other hand the rights of employers to run businesses, make profits and to maintain competitiveness and sustainability in the economy.
We appear to have lost sight of an important point I made on Second Stage. There is a vast number of decent and honourable employers. In many instances employers readily agree to giving employees time off in certain circumstances. There is nothing in the Bill to stop an employer and an employee voluntarily agreeing that the employee can take three months off within the first year of service to take care of a child. This legislation provides for situations where an employer might not be so decent.
Members have referred to the rights of employers and of employees. In my experience, leave is readily permitted by employers when there is good reason for taking such leave. The objective of the Bill is to ensure that all employees get their fair share. The period of one year's continuous service is sensible and practical. Senator Cox correctly pointed out that the absence of such a requirement could be abused. A person could start work and after one month's service demand up to 28 weeks leave. If the amendment were accepted the employee would be entitled to make such a demand. That would create major headaches for employers.
The subsection is sensible and should remain part of the Bill.
Women can be non-consultant hospital doctors until they are well into their thirties and such doctors move between hospitals every six months. How will non-consultant hospital doctors be treated? Sometimes one might be lucky enough to get a good job which lasts for one year but most jobs last for six months.
Having worked in a hospital environment, I am familiar with the problem to which Senator Henry refers. It is recognised that the requirement of one year's continuous service might leave some employees at a disadvantage and section 6(8) provides that an employee whose child is approaching the upper age limit but who has not a full year's service can take parental leave on apro rata basis.
It is reasonable that before somebody takes parental leave with all service entitlements preserved he or she should have been with the company concerned for a reasonable period. The directive suggests that such a requirement can be included in national schemes of parental leave. It is important that an employee should have an attachment to the company and have been working with the company for this period of time.
Senator Costello continues to describe the legislation as minimalist. That is not the case. If this was a minimalist Bill, the age of five years could have been set at two years. The retrospection provision need not have been included and instead of setting the date at 3 June 1996, it could have been set at 3 June 1998. The legislation also provides for flexibility. It could have provided, as is the case in other European countries, that the parent must take the three months leave together. However, this legislation provides that the leave can be taken periodically and on a part-time basis by agreement with an employer.
With regard to reckonability of service, the Bill provides that increments, annual leave, promotion and entitlements can be counted during periods of parental leave. This was not required by the directive. By arrangement with the Department of Social, Community and Family Affairs, credited contributions are protected for people during parental leave and no employee will lose entitlements to short term or long term social welfare benefits because he has taken parental leave.Force majeure leave is paid and that is not required by the directive. It is wrong to claim that this Bill is a minimalist approach to the directive. That claim should not be repeated.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment decared lost.
I move amendment No. 8:
In page 6, subsection (5), lines 25 and 26, to delete ", but children of a multiple birth shall be deemed, for the purposes of this subsection, to be one child".
It is an unusual provision indeed that treats two or more children as one. I am sure a parent would see a difference between taking care of one child and taking care of twins or triplets. This does seem to reflect the Government's minimalist approach to this legislation. Can three children not be regarded as three and one as one? The Government is, of course, attempting to reduce the amount of parental leave as much as possible. The wishes and needs of employers are being considered rather than those of parents. There should be apro rata extension of parental leave for multiple births. Instead, the Government pretends that only one child has been born and forgets that the other one or two must also be taken care of. I must repeat that the legislation has been drawn up in a minimalist fashion and is insulting to parents who have had multiple births. I hope the Minister will reconsider.
I fully understand why the legislation may have been drafted as it was. Only one maternity leave is given when there is a multiple birth. I have not had twins or triplets but I realise that it is highly unlikely that twins or triplets would oblige by contracting their childhood illnesses at the same time. It is important to recognise that children of a multiple birth are separate children with separate needs. I ask the Minister to consider accepting this amendment, particularly as we are not implementing the Bill in a minimalist fashion.
I ask the Minister to reward productivity. I will not speak of the increased productivity of Irish women, who in recent years have lower fertility rates but an increased number of successful multiple births. The Minister might consider granting parents of multiple births one and a half times the normal parental leave. As Senator Cox says, it is very difficult to organise twins or triplets to do things at the same time even when it is something you want them to do. I hope the Minister will increase leave for parents of multiple births just a little.
I support what has been said. I am happily surprised that Senator Cox supports the amendment from this side of the Houe. The number of multiple births, as a percentage of all births, is small. For that reason some additional weeks could be given when twins are born and in the happy and unusual event of triplets or quadruplets being born. There has been much support for this amendment and I urge the Minister to accept it.
This case was trenchantly put by Senator O'Meara on Second Stage. She was listened to by the Minster of State and spoke to her subsequently on the matter. Female Senators have more knowledge of this matter than I but a strong case was made and I hope the Minister of State will show compassion.
The State already acknowledges the difference between single and multiple births by way of child benefit. That should be reflected in this Bill by acknowledging that one human being cannot be two, three or four, for any purposes.
I am happy to be encouraged by all sides. On Second Stage Senator O'Meara made a strong case based on her own experience as a triplet. She was supported by Senator Ridge who frightened me by referring to the prospect of triplets getting measles on separate occasions, one after the other. Senators Cox and O'Donovan, after the debate on Second Stage, asked me to check some legal points. The Attorney General has advised that although the directive is silent on multiple births its wording suggests a right to parental leave for each child. For those reasons I am happy to accept the amendment.
Amendment agreed to.
Government amendment No. 9:
In page 6, subsection (6), to delete lines 29 and 30 and substitute "as a natural parent, but not as an adoptive parent, in respect of the child.".
This amendment means that an adoptive parent who is also the natural parent of the child can only take parental leave as a natural parent and cannot choose between taking leave as a natural parent and as an adoptive parent. The present wording potentially gives a natural parent who later adopts his or her own child a longer time frame in which to take parental leave than other categories of parents. Without this amendment someone who is both the natural and adoptive parent could have up to seven years in which to take parental leave; they could opt either to take it before the child is five or within two years of the adoption.
Amendment agreed to.
Section 6, as amended, agreed to.
Government amendment No. 10:
In page 7, subsection (3), line 42, after "child", to insert "and the children concerned are not children of a multiple birth".
This amendment follows that made to section 6(6). It will allow parents of twins, triplets etc, to take more than 14 weeks parental leave in a 12 month period. Without this provision, such a parent might be unable to take all his or her parental leave entitlement before the children concerned reached the age of five.
Amendment agreed to.
Government amendment No. 11:
In page 7, lines 45 to 51, to delete subsection (4) and substitute the following new subsection:
"(4)(a) Where any holiday (other than a public holiday) to which an employee is entitled falls during a period of parental leave of the employee and on a day when (but for the leave and the holiday) the employee would be working in the employment concerned, the holiday shall be taken at such other time as may be determined by the employer concerned pursuant to section 20 of the Organisation of Working Time Act, 1997.
(b) Where any public holiday to which an employee is entitled falls during a period of parental leave of the employee and on a day when (but for the leave and the holiday) the employee would be working in the employment concerned, a day shall be added to the period of parental leave that the employee is entitled to take.".
This amendment brings the treatment of annual leave which falls during parental leave into line with the Organisation of Working Time Act, 1997. The new wording means that while public holidays which fall during parental leave will be added to the end of parental leave, annual leave which accrues during parental leave will be granted by the employer in accordance with section 20 of the Organisation of Working Time Act, 1997. This amendment does not mean any loss of annual leave for the employee but removes an inconsistency between the existing wording and the provisions of the Organisation of Working Time Act, 1997.
Amendment agreed to.
Section 7, as amended, agreed to.
Sections 8 to 11, inclusive, agreed to.
Amendment No. 12 is out of order as it involves a potential charge on the Revenue.
It is an important issue.
Senator Ridge may speak on the section.
Amendment No. 12 not moved.
Government amendment No. 13:
In page 10, subsection (2), line 7, after "leave" to insert "and the notice shall contain a statement in summary form of the grounds for terminating the leave".
This amendment strengthens the subsection by requiring an employer to state in writing his or her reasons for terminating leave. There is a comparable provision in section 12 (5). This is a sensible and reasonable addition to the wording of this subsection.
Amendment agreed to.
Government amendment No. 14:
In page 10, lines 26 to 28, to delete subsection (6) and substitute the following new subsection:
"(6) A person shall retain a notice under this section given to him or her and a copy of a notice under this section given by him or her.".
This is not a change of substance but rather expresses the idea better.
Amendment agreed to.
Question proposed: "That section 12, as amended, stand part of the Bill."
I accept that my amendment is out of order. However, there should be a child benefit payment to families who take parental leave, otherwise it will not be possible for families on low incomes to avail of it. The Minister should consider paying a double rate of child benefit for the children of such households for the 14 weeks. This will assist parents in taking parental leave, which is a big step in terms of child care and supporting a family. It will be impossible for most families to take parental leave without some financial help.
A huge number of women take four weeks unpaid leave at the end of maternity leave, whether they are in high or low income jobs. This is an indication that income will not be a barrier to people taking parental leave. While it would be marvellous to provide paid parental leave, it would not work as we cannot afford it. I accept the spirit of what Senator Ridge is trying to do.
I support the sentiments expressed by Senator Ridge. It is a pity the amendment could not be discussed. However, the rule of the House is it is out of order as it would involve additional taxation. However, the Government Commission on the Family recommended that a payment should be made to parents who take parental leave. The Government is flying in the face of a fundamental recommendation of a commission it established. It is regrettable that the Government cannot provide minimal social welfare assistance rather than asking an employer to give paid leave. Children's allowance is not an enormous payment and we are asking that this be doubled for the period of parental leave.
Thousands of parents will be unable to avail of parental leave because they will be unable to afford it. We should do everything we can to ensure that medium to low income families can avail of it. For economic reasons, these parents will be unable to take 14 weeks off work without pay as they need every week's pay to make ends meet. This matter must be looked at. Perhaps in two or three years it will be proposed that some form of payment should be made but we should not have to wait that long.
Some form of payment is made in eight of the 15 EU countries; we are in the minority of seven countries who do not make a payment. We may say we cannot afford it but I think we can. We have not calculated the cost of the proposal, but it would not be enormous. We must ensure that the maximum number of families on low incomes can avail of parental leave. Families on above average incomes will be able to avail of it. We should not make an economic distinction between these families. I ask the Minister to look at our proposal again. If it is closely examined, it will be seen that it will not be a great economic burden on the country. I assure the Minister that the social dividend will be great.
I support the cogent arguments of Senator Ridge and Senator Connor as to why family child benefit should be paid at double the rate during parental leave. We must remember that this is unpaid parental leave. It is important that we provide an incentive for people to take parental leave. This proposal is an obvious incentive for poor families. It will guarantee that parents are in the position to take leave and take care of their children at a crucial time. This proposal is the most potent incentive in the legislation to ensure substantial take-up of parental leave.
If this proposal is introduced it will ensure that this will not be minimalist legislation and that it will be implemented to the maximum. No costings have been done but I would like the Minister to look at the matter. She has time in abundance as the legislation will not be implemented until the end of the year and it has yet to go before the other House. The Minister should consider the social importance of the proposal as a financial measure which will ensure that those entering the workforce — a large proportion of whom are women — and especially those on low incomes, are given the opportunity to avail of parental leave. I support the proposal and I ask the Minister to look at it again under section 12.
Senator Ridge's amendment states that family child benefit shall be payable at double the rate during the period of parental leave. If we accepted this proposal it would militate——
We are not discussing the amendment, which was ruled out of order. We are discussing section 12, as amended.
This would militate and discriminate against that section of women who stay at home permanently to look after their children. What do they get?
I wish to make one point in relation to what Senator Costello said. We do not need to provide any incentives for people to take up parental leave. People will avail of it by virtue of the fact that it is available. Because of the flexibility that has been built into the Bill and the nonminimalist approach — I am beginning to hate that term — it is possible for people to take that leave one day a week, in agreement with the employer, until all 14 weeks are taken. One finds that where people are looking for additional time at home they will often go onto part-time hours on a weekly basis and lose salary in order to spend more time at home. The issue of payment is a red herring which has been thrown into the debate by the Opposition in an attempt to score political points.
No. We are just trying to be constructive.
It is a sad day. We cannot cost it. The lack of payment for parental leave will not mitigate against anybody taking it in this instance.
One can look at the general issue of payment in a number of different ways but to regard it from a child benefit point of view would not be correct. All parents are paid child benefit; it is not related to PRSI or whether we are in the workplace. As Senator O'Donovan pointed out, the suggestion that parents on parental leave should receive double child benefit does not apply to the parent who is on permanent parental duties in the home. To approach it from that aspect would not be correct.
That is a grotesque rejection of a good point.
The Minister of State should be allowed to reply without interruption.
I do not think so because we look at equality from all fronts — with regard to women in the workplace, but equally in the home.
What about the equality between well off and not well off people in relation to their accessibility?
The same applies with regard to Senator Connor's point because what he is saying is that regardless of one's income one should be paid double child benefit. Therefore, he is not looking at equality with regard to income or women in the home. We have to look at it from an equality point of view with regard to all women. Many women would find this approach very unacceptable in their situation.
Question put and agreed to.
Amendment Nos. 15, 16 and 17 are related and may be discussed together.
Government amendment No. 15:
In page 10, subsection (1), line 31, after "where," to insert "for urgent family reasons,".
The overall effect of these amendments is to tighten the provision dealing withforce majeure leave and to ensure that they are in keeping with the wording of the directive itself. Under the directive member states must give workers force majeure leave for urgent family reasons in cases of sickness or accident, making the immediate presence of the worker indispensable. The revised wording will more faithfully reflect the spirit and text of the directive.
Amendment agreed to.
Government amendment No. 16:
In page 10, subsection (1), line 32, after "the" where it firstly occurs to insert "immediate".
Amendment agreed to.
Government amendment No. 17:
In page 10, subsection (1), line 34, to delete "required" and substitute "indispensable".
Amendment agreed to.
Government amendment No. 18:
In page 11, lines 1 to 6, to delete subsection (3) and substitute the following new subsection:
"(3) When an employee takesforce majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in writing given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement in summary form of the reasons for the leave.”.
The purpose of this amendment is to tighten up this section and to make it clear thatforce majeure leave is not something premeditated but something which arises suddenly. Rather than referring to proposed force majeure leave or to a notice given in writing before the employee takes force majeure leave, the amendment will require the employee to confirm the force majeure leave after it has been taken. This more faithfully reflects the spirit of the directive and the whole thinking behind force majeure leave.
I am glad the Minister of State is introducing this amendment because I thought we would have people taking over from my own profession, who could predict so accurately illness and accidents that will occur in future.
Amendment agreed to.
I move amendment No. 19:
In page 11, lines 17 to 23, to delete subsection (6).
I would ask the Minister of State to accept this amendment because in relation to sickness certificates we have already decided it was wiser not to ask for a doctor's certificate for the first three days of illness. I have to agree with Senator Quinn and Senator Leonard that there is a problem concerning the abuse offorce majeure leave but bringing the medical profession into it will only add to the confusion. If the employer does not agree with the employee's explanations something could be sought then, but it is not wise to make such a certificate obligatory. For a start, there will be costs for those who have to obtain a certificate from a doctor. If the person is a medical card holder you may be sure that the medical profession will seek some sort of reimbursement for providing these certificates.
I seldom disagree with Senator Henry and I will not do so now. I spoke with regard to this very point on Second Stage when I said that it had become a habit to abuse this sort of leave. However, I do not think the solution is to remove subsection (6). My concern is that since this is paid leave, if it is made too attractive and easy for somebody to be tempted to take it and then give the excuse afterwards that they had an illness, and it may not have been an illness, it is necessary for them to feel it is serious enough to do so. I have difficulty in believing that the solution to the problem I referred to would be to remove subsection (6). It probably has to stay if only as a disincentive for somebody who would find it so easy to take time off work and use this as an excuse afterwards.
I support Senator Henry on this matter. As I understand it, the leave that is envisaged byforce majeure is leave that applies in emergencies and crises. It is limited to a small number of days — perhaps five or six over a period of three years. I do not see why we should put further obstacles for people where there are substantial family needs when parental leave is sought. It is rather heavy handed and unwieldy to require a medical certificate in all instances.
The essential aim of subsection (6) is to place an obligation on the employee who has takenforce majeure leave to supply to his or her employer a definitive statement, namely, a medical certificate, which confirms the basis on which the force majeure leave was taken. This supplements the requirement of section 13(3) which obliges the employee to write a summary statement of the reasons for taking the parental leave.
I have listened carefully to the points that Senator Henry has made in support of her amendment. I will certainly look at this issue from the point of view that Senator Henry is concerned about, the undesirability of having recourse to the medical certification procedure to verifyforce majeure leave. We will see if it can be dealt with by some modification of what is already in place or by substituting an alternative mechanism.
In the case of a small firm it does not really arise because, more than likely, the employer will know the emergency circumstances. On Second Stage, Senator O'Donovan raised the point that in his workplace he would know if there was an emergency in a person's house. It would be dealt with and the person concerned would work at different times. It would probably cause some problems for a larger employer as to how the personnel officer can really know what the situation is in each case. We will try to see what we can do to ensure some type of regulation or situation within the employment. We will have another look at it based on what has been said. We will see what we can do in terms of the question of medical certification.
If the Minister of State has not already done so, may I suggest that she should discuss the matter with the College of General Practitioners and with the Irish Medical Organisation. Has that happened already?
Our discussions will be with the Department of Health and Children, which will deal with classifications. That Department is making inquiries on our behalf.
That would be a good idea, because it could consider our discussions over three days regarding certificates for sick leave. The medical profession is not enthusiastic about policing legislation like this and I am grateful for the Minister of State's reply. I look forward to seeing what she can do with this.
Amendment, by leave, withdrawn.
Section 13, as amended, agreed to.
Amendment No. 20 is out of order.
Amendment No. 20 not moved.
Section 14 agreed to.
Sections 15 to 18, inclusive, agreed to.
I move amendment No. 21:
In page 14, subsection (7), line 51, to delete "that offence" and substitute "an offence".
This is a technical amendment. A person who gives false evidence to the tribunal cannot be found guilty of perjury because the tribunal is not a court. He or she should be found guilty of "an offence" and this amendment proposes that technical adjustment.
In relation to proceedings of the Employment Appeals Tribunal, a person giving oral evidence or producing documentary evidence is deemed to be in the same position as if he or she was giving evidence before the High Court. Such a person is conferred under the provisions of section 19(3) with the same privileges and immunities as if he or she were a witness before the High Court. The tribunal must be duly empowered to take action if a witness tenders false evidence and this is covered in section 19(7). Under that subsection, a witness before the tribunal shall be found guilty of the offence of perjury if giving evidence before a court would mean he or she would be guilty of perjury. Perjury is an indictable offence for which the penalty is a prison sentence of up to seven years. Under the law as it stands, perjury is an offence when it is committed by a person who asserts upon oath the truth of some matter of fact which assertion he or she does not believe to be true. This is the specific offence with which subsection (7) is concerned.
The amendment proposed by the Senator would appear to remove the reference to perjury and substitute the words "an offence". Thus, instead of the certainty which the text of the Bill sets out, acceptance of the amendment would mean that a less certain situation would obtain and that the person giving false evidence before the tribunal would be guilty of some unspecified offence. For these reasons I do not support the amendment.
If that is the legal interpretation, I accept it.
Amendment, by leave, withdrawn.
Section 19 agreed to.
Section 20 agreed to.
I move amendment No. 22:
In page 15, subsection (3), to delete all words from and including "but" in line 28 down to and including "prescribed" in line 30.
This is the area of compensation or redress for entitlements that are not adequately provided for. This amendment seeks to delete the maximum provided in the legislation, which shall not exceed 20 weeks remuneration in respect of the employee's employment and calculated in such a manner as may be prescribed. I would have thought it adequate to have the text read ". that compensation shall be as the rights commissioner or the tribunal deems just and equitable having regard to all the circumstances ." and that we could leave it to those people who have the professional expertise to decide what is appropriate. One can envisage circumstances where 20 weeks might not be excessive over a substantial period of time and might not reflect the degree of loss of entitlements if an employer was being deliberately negligent regarding statutory entitlements. I suggest we leave well enough alone regarding the rights commissioner and the tribunal.
If we did not set an upper limit on compensation we would set a strange precedent. We need only look at the difficulties insurance companies encountered in the courts' system with personal injury claims. To be fair to employees suffering at the hands of unjust employers and to employers, the provision "shall not exceed 20 weeks" is a fair estimate of compensation.
The limit set here follows those of the Maternity Protection Act, 1994, and the Adoptive Leave Act, 1995. This upper limit provides guidance to the rights commissioner in determining the amount of compensation to be paid and is set at a level I consider appropriate in the context of this legislation. Without any statutory indication of the maximum level of compensation, the rights commissioner might feel compelled to provide low or minimal compensation or conversely may feel the sky is the limit.
Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.
Section 21 agreed to.
I move amendment No. 23:
In page 16, subsection (4), line 49, to delete "relevant employer" and substitute "respondent to the application".
This amendment proposes the deletion of "relevant employer" and the insertion of "respondent to the application" in its place. This is intended to proceed with the normal rule of Circuit Court proceedings, which is that the action is brought in the county of the respondent. It is a technical amendment.
The relevant employer in this instance would be the respondent and, without making little of the proposed amendment, it is a mixture of words that does not take from the effect of the Bill.
I do not propose to accept this amendment. The wording of the section is based on the equivalent provisions of the Adoptive Leave Act, 1995, section 39(4), and the Maternity Protection Act, 1994, section 37(6). The term "relevant employer" is clear and unambiguous and I do not see what purpose is served by making the change proposed.
I bow to the Minister of State's superior legal advice.
Amendment, by leave, withdrawn.
Section 22 agreed to.
Sections 23 to 28, inclusive, agreed to.
I move amendment No. 24:
In page 20, after line 8, to add the following new section:
"29. -The Employment Equality Agency shall take such steps as it considers appropriate to make available to the public information on entitlements under this Act.".
This amendment is intended to assist the Minister of State, as are all the amendments. There is not much sense in having legislation on the Statute Book and going through the work, sweat and tears of producing and passing it unless there is a mechanism whereby its substance is made public and circulated to the widest possible audience. In this case the audience are parents with children born after 3 June 1996. I urge the Minister to accept the new section as one that will be valuable in progressing the legislation.
I agree with Senator Costello. It is important that everybody is fully appraised of their rights and entitlements and, in particular, that fathers be fully aware that they can take 14 weeks paternal leave for each child up to the age of five years born after 3 June 1996. It is appropriate that the Minister should consider some way of ensuring those who can benefit from the legislation, which is an important step in the equality agenda for men and women and which will make a good contribution to family life, are made aware of its provisions.
I agree the new section should be inserted. The legislation is complex and a new departure in employment and labour law. Very often employers may not make available to employees all information in relation to their entitlements under such legislation. The Employment Equality Agency is the appropriate body to charge with making the maximum amount of information available and to take all necessary steps to ensure it is disseminated. Public representatives are aware of the dearth of information among people in relation to legislation and their entitlements. The amendment includes a novel idea and I congratulate Senator Costello on bringing it forward. Not only should it be applied to this legislation but it should be applied to earlier and future legislation.
I have no real quarrel with the principle of the amendment as I accept the desirability of the Employment Equality Agency or the new equality authority having an information role regarding parental leave. We will have to examine the matter and give further consideration to how it can best be incorporated in the Bill, bearing in mind the status of the Employment Equality Bill, 1997, which was passed by the House last Thursday and the forthcoming equality authority. The new authority will have statutory functions regarding the Maternity Protection Act and the Adoptive Leave Act. I will have to work out a mechanism for the incorporation of such a provision in the Bill.
I am delighted by the support from all sides of the House for this measure. Very often we pass legislation which is subsequently left on the shelf and not sufficiently promulgated. Important legislation should be attached to a body in the context of responsibility for publicising its provisions. The Employment Equality Agency would be the relevant body in this case. I accept what the Minister has said regarding examination of it to see the best mechanism for fulfilling the spirit of the amendment. In these circumstances I withdraw the amendment.
I agree to examine the provision to see how it can be incorporated in the Bill.
Amendment, by leave, withdrawn.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank Senators for being so helpful in passing the legislation. Hopefully they will appreciate that we have listened to what has been said today and on Second Stage last week. I hope people will accept we have not taken a minimalist approach but have approached the legislation in a very positive manner. The point made by Senator Henry, namely, that this is a positive measure for parents in the workplace, is important as the Bill is another step on the road to equality. The Bill should be seen in the context of the Employment Equality Bill, the expert group on child care established last July and which will report by the end of the year, and a number of other initiatives in which we are involved concerning family friendly initiatives and support of parents in the workplace.
I congratulate the Minister. This is my first Bill. I have attended its delivery but I do not think I will be entitled to leave. There is a strong sense of goodwill towards the Bill. We are moving to a new era for parents. The comments on all Stages have been well thought out and constructive. I appreciate we cannot deliver everything we wish but note the Minister has agreed to take on board some of the amendments and have a rethink on other aspects of the Bill. This is something I welcome.
I compliment the Minister, her Department and officials on the very fine work they have done in implementing the directive on time as promised. The commitment to review the legislation is a very important step in the context of equality as it will be important to monitor progress in the future. I particularly welcome this section and the entire focus of the Bill in terms of equality not just for women but also for men. The Bill recognises men's distinct and important role in the upbringing of their family, looking after young children and sharing responsibilities.
I wish to be associated with the tributes to the Minister and thank her for the courteous manner in which she has dealt with the Bill and her willingness to consider amendments. I also compliment her officials for their good work. It is key legislation in terms of making the workplace more user friendly for parents. It is an appropriate time for such legislation in the context of our economy as more and more people are entering the workforce. I revoke my description of the legislation as minimalist.
I congratulate the Minister and her officials for the manner in which the Bill was debated. The aim of the Bill was to give effect to an EU directive and the Minister gave serious thought to how best this could be done.
This was one of the few occasions in the House when I felt as if I was the sole voice of the right wing attitude to this legislation. I wished to make sure the Bill did not inhibit potential employers from taking on staff and creating jobs. The Minister has taken that balance into account and I congratulate him.
Question put and agreed to.
When it is proposed to sit again?