Maternity Protection (Amendment) Bill 2003: Committee Stage.

Sections 1 and 2 agreed to.
NEW SECTION.
Government amendment No. 1:
In page 4, before section 3, to insert the following new section:
"3.–Section 10(1) of the Principal Act is amended by the substitution of ‘not later than two weeks before the end of the expected week of confinement' for ‘not later than four weeks before the end of the expected week of confinement'.".

This amendment seeks to amend section 10(1) of the principal Act to provide for the reduction in the compulsory period of pre-confinement maternity leave from four weeks to two weeks. Senators may recall that, during the debate on Second Stage, I undertook to examine the possibility of reducing the pre-confinement period of maternity leave. I am aware that the current four-week compulsory pre-confinement period of maternity leave has given rise to a situation where many pregnant employees collude with their doctors to have a false confinement date inserted into their medical certificates so that they can avail of a longer period of maternity leave after the birth.

This amendment arises from updated legal advice which states that, provided employees can avail of non-compulsory pre-confinement leave in excess of the two-week period, the reduction in the period of compulsory pre-confinement leave in section 10(1) of the Maternity Protection Act 1994 to two weeks does not reduce the level of protection and is not prohibited by Article 1(3) of the pregnant workers' directive. This amendment will effectively allow new mothers to take up to 16 weeks of their paid maternity leave after the birth of their child and offers them greater flexibility in managing their leave entitlements in a way which best suits their personal circumstances.

I thank the Minister for listening to concerns expressed on Second Stage, although I had no doubt that he would do so. Since entering this House in 1987, I have been attempting to have the change in question made to the legislation. I had discussions with the then Attorney General, Deputy McDowell, and the previous Minister for Justice, Equality and Law Reform, Deputy O'Donoghue. The current Minister clearly took the attitude that a right was no good if people did not treat it as such.

This was a practical attitude to solving a problem which was forcing doctors and women to provide false evidence in regard to confinement dates. This is a welcome Bill and I thank the Minister of State on a personal and political note for his foresight in addressing this issue.

I compliment Senator Cox because she has been trying to address this issue for some time. We appear to have had great difficulty with confinement dates and must have had the worst record in regard to when children were actually delivered. Therefore, this is a welcome change and I thank the Minister of State for making it.

Amendment agreed to.
SECTION 3.

I move amendment No. 2:

In page 4, line 3, after "to" to insert "section 8(2) and".

This is a technical amendment which is a suggested drafting improvement. I will be interested to hear the Minister of State's response.

I thank the Senator for her suggestion and am advised there is nothing wrong with the amendment as proposed as it does no violence to the legislation. However, I am further advised that the position is already covered. Section 8(2) of the principal Act, as amended by section 2 of the Bill, provides that section 13(2) may be amended by ministerial order, made with the consent of the Ministers for Social and Family Affairs and Finance, to extend the periods of leave in subsections 8(1) and 13(2). We spoke to the Office of the Parliamentary Counsel about Senator Tuffy's amendment and have been advised that it is not good drafting practice to make a second cross reference of the nature suggested in the amendment. While I thank the Senator for her suggestion and accept there is nothing legally or technically wrong with it, we are advised that it is better practice to leave the section as originally drafted.

Amendment, by leave, withdrawn.
Section 3, as amended, agreed to.
Section 4 agreed to.
SECTION 5.

Amendments Nos. 3, 4, 9, 11, 15 and 16 form a composite proposal. Amendments Nos. 5, 14, 18, 22, 46, 49, 53 and 56 form an alternative proposal. Therefore, we will discuss amendments Nos. 3 to 5, inclusive, 9, 11, 14 to 16, inclusive, 18, 22, 46, 49, 53 and 56 together. Is that agreed? Agreed.

I move amendment No. 3:

In page 5, line 9, after "terminate" to insert "or postpone".

Section 5 deals with the termination of additional maternity leave in the event of sickness of the mother. As I have already said, this may be in breach of Council Directive 92/85 on pregnant workers. The section provides that where a woman falls ill on maternity leave, such leave will be terminated and her illness will be treated as sick leave, as would be the case with any other employee. While this is acceptable for other employees, it is unfair to a mother who has given birth.

This Bill specifies in section 5(4)(b) that “the employee shall not be entitled to the additional maternity leave, or part of it not taken by her at the date of such termination”. This is illogical and unjust. There is no reason the employee should not be entitled to avail of the balance of the maternity leave which had been suspended because of her illness. Will the Minister comment on the proposed amendment?

I support Senator Terry. It seems hard-hearted that we allow for maternity leave but, if someone gets sick, we take that leave away again. I accept that women will not be at work because they will be on sick leave. However, it might be a good idea to give this additional time, to which a woman would have been entitled had she not become sick, to ensure that she is in the best possible health when she returns to work.

Amendment No. 16 in my name is similar. Should I speak on it now?

Yes, the Senator may speak to any of the amendments that are being taken together.

The purpose of amendment No. 16 is similar to that of those tabled by Senator Terry. Where additional maternity leave is terminated early, the parties should be able to agree to allow the balance to be taken at a later date. Given that this involves employees and employers, I do not understand why the Government cannot agree to the amendment. I would be interested in hearing the Minister of State's reply.

I wish to point out that this is the only opportunity Members will have to speak to any of the amendments in this group.

I understand the thinking behind the amendments. There are, however, two reasons which prevent us from accepting them. As Members are aware, what the working group, which consisted of a number of interested parties, agreed is, in effect, a compromise. Employers were asked to agree to certain things and while they did not consent to everything, they acceded to a number of points. Trade union representatives also obtained part of what they were seeking. As already stated, what emerged was a compromise.

There are more substantial legal reasons for not accepting the amendments. I will read into the record the briefing note supplied by the Department and if any Member wishes to ask questions afterwards, I will be glad to deal with them.

Amendment No. 3 is inconsistent with the recommendations of the maternity review group. That group recommended that in the event of illness an employee should, subject to the agreement of the employer, be able to transfer from additional maternity leave to sick leave. If an employee transfers from additional maternity leave to sick leave, she will forfeit her right to any additional maternity leave not taken at the date of commencement of the sick leave. This recommendation is part of a composite set of recommendations made by the working group following negotiations between the social partners and Government Departments. To depart from this would be a significant variation from the package of compromises agreed, even if the legal situation allowed it.

The effect of a transfer from additional maternity leave to sick leave and the entitlement to the balance of the additional leave was also considered specifically by the working group. In this regard it was noted that the European Court of Justice stated, in Margaret Boyle and Othersv. the Equal Opportunities Commission, that “in order for a woman on maternity leave to qualify for sick leave, she may be required to terminate the period of supplementary maternity leave granted to her by the employer”. Where an employee terminates additional maternity leave in order to have her absence from work treated in the same manner as any other absence from work due to sickness, she may benefit from payment in respect of sick leave, depending on the sick leave arrangements available under her employment contract, whereas an absence on additional maternity leave does not attract payment.

The pregnant workers directive prohibits the dismissal of an employee from the beginning of her pregnancy to the end of her maternity leave, save in exceptional circumstances not connected with the employee's condition. The Maternity Protection Act extends this protection to the end of the additional maternity leave period. An employee is, therefore, protected from dismissal in respect of pregnancy-related sick leave from the beginning of the pregnancy to the end of the additional maternity leave period.

In the circumstances, it is necessary to include in the Bill a mechanism to deal with situations where an employee who falls ill wishes to benefit with her employer's agreement from sick leave arrangements rather than unpaid additional maternity leave. She must forfeit her right to the additional maternity leave that has not been taken. Otherwise, in view of the legal protection in place up to the end of the additional maternity leave, employers will not agree to allow employees split their additional maternity leave due to the risk of potentially extending maternity protection for the duration of a prolonged period of sick leave. The maternity review group, which included employer and employee representatives, clearly recognised the legal consequences of the transfer from additional maternity leave and its recommendation was construed accordingly.

I would need some time to read carefully through the Minister of State's reply. That is the difficulty we face when we deal with amendments and Ministers provide their reasons for accepting or rejecting them.

It still makes sense for a woman who gets sick during maternity leave to postpone rather than terminate her leave. The legislation is behind the times. The Minister of State has addressed the recommendations in the report of the working group on the review and improvement of the maternity protection legislation. When this legislation was introduced, the Department of Health and Children's national breastfeeding policy recommended that all women should be encouraged to breastfeed for at least four months. However, since then maternity leave has been extended to 18 weeks paid leave and eight weeks unpaid leave.

The Department of Health and Children's optimal infant and young child nutrition policy has changed and mothers are now recommended to exclusively breastfeed for the first six months and to continue breastfeeding thereafter in combination with solids for up to two years. The legislation does not meet the latest recommendation and the termination of maternity leave instead of its postponement is not a good step.

Under legislation to protect women's rights, particularly in the area of maternity leave, difficulties for employers cannot be created. They will question whether they should employ women if an environment is created in which their rights are onerous. Most employers work as hard as they can to create an environment whereby they can organise locum cover for women on maternity leave. Many companies operate fair maternity leave policies and pay full benefits to those on maternity leave. There is an option to transfer from unpaid maternity leave to a sick pay scheme, which presumably will not be taken unless the person can be paid for sick leave. If the maternity leave is extended, it results in additional costs to the employer. A step by step approach is important in these cases. Significant changes have been made in protection for mothers but further changes must be introduced stage by stage.

I agree with the Minister of State on postponing maternity leave at the conclusion of sick leave; otherwise, there would be an onerous burden on employers. Employers must examine such issues on an economic basis because they must pay wages at the end of the day and make a profit to do so. We must be as fair as we can to ensure businesses have an opportunity. That is the real world and I have no doubt that is reflected in the working group's compromise. Perhaps this issue should be pursued in the context of paid parental leave in future as the rights of women are expanded and protected.

Did the review group examine the possibility of a woman taking unpaid leave while not covered by maternity protection if she took up the provisions of the section? The woman who gets sick and takes advantage of these provisions loses out on paid maternity leave, which is unfair.

I had children at a time maternity leave did not exist. It was considered that the world would come to an end if maternity leave was introduced but that did not happen and women became more popular as employees because they were needed in the workforce. Did the Minister of State's advisers take into account that the average family size is 2.1 children? It is not as if women will seek extra leave six times or more during their careers and, hopefully, not many will get sick anyway so the scenario will not arise where vast numbers of women will discommode employers by getting sick. I understand Senator Cox's point but this legislation should be as strong as possible in order that we do not have to revisit it in a short while.

Senator Terry referred to the breastfeeding provisions. Following her contribution on Second Stage, I undertook to discuss this issue with my officials and various other parties to ascertain whether I could table an amendment to address the Senator's well argued point. However, I have tabled an amendment to meet the Senator's concerns, which we will discuss later.

There are several types of legislation but I categorise legislation in two ways. I could introduce legislation, for example, to reform the libel laws or the law relating to possessory title over which the two Houses of the Oireachtas have autonomy. We have free licence to draft the law as we wish. If the Opposition tables amendments, which the Government is convinced are good, they can be made. However, this legislation falls into a slightly different category because it is intended to reflect agreement by the social partners on certain measures that will cost employers while giving female workers who become pregnant extra rights.

The working group worked out a compromise. It would not be morally correct for the House to unilaterally change a fundamental provision in a compromise hammered out between the social partners, which puts female workers at an advantage and employers at a disadvantage. Given that the legislation is supposed to reflect the hard fought and difficult compromise worked out over a long time by the working group, it should not be unilaterally changed in a dramatic way.

The difficulty from the employer's point of view is that the EU directive provides protection against dismissal of a female employee from the beginning to the end of maternity leave. The Government has amended the directive to extend it to cover paid maternity leave and an additional eight weeks unpaid maternity leave. If an employee falls ill while on unpaid maternity leave, she can opt to go on sick leave but, if at the end of sick leave, she still has unused additional maternity leave, great uncertainty will be created for the employer because he or she will not know how long the female employee will be out sick and there is still an issue relating to unused maternity leave. An employer could be stuck with an employee for years following protracted sick leave. The Unfair Dismissals Tribunal, the objectivity of which is not questioned by anybody, has decided in a number of cases that if somebody in normal employment falls ill and after a set period is unable to say when she can return, which depends on the conditions of employment, the employer is justified in terminating the employment and this is not an unfair dismissal.

I believe the reason the employers were so worried and that this was such a sticking point was that they did not want the spectre of an almost indefinite period of sick leave being totally protected, by law, against dismissal. That might be acceptable for big multinational companies, but a great deal of our employment is provided by small and medium sized companies. The measure would create a very strong disincentive in such cases. That is the reasoning behind the concerns. While I can understand the logic and humanity behind the proposed amendments, I regret I cannot accept them.

Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
Government amendment No. 5:
In page 5, to delete lines 14 to 19.

This is a drafting amendment.

Amendment agreed to.
Amendment No. 6 not moved.

An Leas-Chathaoirleach

Amendment No. 7 is a Government amendment. Amendments Nos. 7, 20, 47 and 54 form a composite proposal while amendments Nos. 8, 10 and 21 form an alternative proposal. Amendments Nos. 7, 8, 10, 20, 21, 47 and 54 may be discussed together. Is that agreed? Agreed.

Government amendment No. 7:
In page 5, lines 21 and 22, to delete "may, at the discretion of the employer, agree" and substitute "may agree".

This amendment is necessary to reflect more closely the intention of the maternity working group and to ensure consistency with the Parental Leave Act 1998. Currently, section 5 of the Maternity Protection (Amendment) Bill 2003 provides that determination of additional maternity leave, in the event of sickness of the mother, must be at the discretion of the employer. However, the intention of the maternity working group was to mirror section 7 of the Parental Leave Act 1998, which provides that parental leave may be taken in a broken manner, with the agreement of the employer, rather than in a single block of 14 weeks. In other words, it is a change of emphasis. The basic rule is that the leave may be taken in parts, rather than as a block. However, we have to write in the provision that it must be cleared with the employer.

My amendments are of a technical nature. With regard to the Government amendment, if an employer does not agree to this arrangement, has he or she the final say? Has the mother any recourse to any other authority?

I support the amendment – that should cheer up the Government remarkably. This change appears to strengthen the situation for the employee.

The reply to Senator Terry's question is, unfortunately, "No". It is a matter which must be arrived at by mutual agreement, which obviously requires agreement by both sides. If one side, namely, the employer, does not agree, unfortunately, it cannot then happen. There is no appeal or other recourse, as I understand the situation.

Amendment agreed to.
Amendments Nos. 8 to 11, inclusive, not moved.

An Leas-Chathaoirleach

Amendment No. 12 is a Government amendment while amendment No. 13 is an alternative and they may be discussed together. Is that agreed? Agreed.

Government amendment No. 12:
In page 5, line 26, to delete "date, determined by the employer, that is not" and substitute "date agreed by the employee and the employer that is not".

The reasoning behind this amendment is the same as I outlined on a previous amendment, namely, to reflect more closely the intention of the maternity working group and to ensure consistency with the Parental Leave Act 1998. Here again, the intention is that the employee and employer should agree the date on which leave is terminated, rather than giving the employer the sole discretion to decide the date.

Amendment agreed to.
Amendment No. 13 not moved.
Government amendment No. 14:
In page 5, between lines 33 and 34, to insert the following:
"(4) An employer who receives a request under subsection (1) shall notify the employee concerned in writing of the employer's decision in relation to the request as soon as reasonably practicable following the receipt of it.".
Amendment agreed to.
Amendments Nos. 15 and 16 not moved.
Section 5, as amended, agreed to.
SECTION 6.

I move amendment No. 17:

In page 6, to delete lines 8 to 15.

The Labour Party proposes the deletion of subsection (2), which we regard as an unnecessary restriction on the right created by the section. I fail to understand the need for such a restriction, whereby it only applies if the maternity leave not taken is not less than 14 weeks. I would like to hear the comments of the Minister of State on the matter.

Section 6(2) of the Bill provides that an employee may request to postpone her maternity leave with effect from a date she selects, but only if the period of maternity leave concerned which she has taken on that date is not less than 14 weeks and that not less than four of those weeks are taken after the end of the week of confinement. The pregnant workers' directive, No. 92/85/EEC, provides for a continuous period of 14 weeks maternity leave to be allocated before and-or after confinement, in accordance with national legislation and-or practice.

The Attorney General's office has advised that the directive does not allow for the splitting of the 14 week maternity leave period. Implementation of the directive may also not have the effect of reducing the level of protection already in existence in member states on the date the directive was adopted. As the Maternity (Protection of Employees) Act 1981 provides that the maternity leave period shall not end earlier after the end of the expected week of confinement, it is not possible to reduce this level of protection.

I was also concerned about this when I looked at it. We consulted the Attorney General's office and were informed that, unfortunately, nothing could be done about it because, under the EU directive, there is provision for the protection of a pregnant employee for a continuous period of 14 weeks from the date of confinement. The advice we have received is that we cannot do anything in domestic legislation which would effectively weaken the protection given in that regard. In this context, splitting the period of leave would be interpreted as a weakening of it.

Accordingly, on the basis of the advice received from the Attorney General's office, it appears that we cannot do anything about this issue. However, we received advice from the Attorney General's office previously on a matter which we are now in the process of amending as a result of further legal advice in the meantime. I will undertake to have some legal experts look at the matter again to see if we can do anything about it.

In the light of what the Minister of State has said, I will withdraw the amendment.

Perhaps the Minister might use the same approach as previously, whereby a right is only as good as the use people make of it. I suggest that, in a situation where a baby is in hospital, it does not make sense that one cannot postpone one's maternity leave if one has not taken the 14 weeks. That would be ridiculous. I appreciate the Minister of State's sympathetic approach in the matter and I hope some progress may be made on the basis of further legal advice.

Amendment, by leave, withdrawn.
Government amendment No. 18:
In page 6, to delete lines 25 to 30.
Amendment agreed to.
Amendment No. 19 not moved.
Government amendment No. 20:
In page 6, lines 32 and 33, to delete "may, at the discretion of the employer, agree" and substitute "may agree".
Amendment agreed to.
Amendment No. 21 not moved.
Government amendment No. 22:
In page 7, between lines 15 and 16, to insert the following:
"(6) An employer who receives a request under subsection (1) shall notify the employee concerned in writing of the employer's decision in relation to the request as soon as reasonably practicable following the receipt of it.".
Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 23 to 25, inclusive, may be discussed together by agreement.

I move amendment No. 23:

In page 7, line 20, to delete from and including "sickness," in line 20 down to and including "notification" in line 27.

The purpose of this amendment is to ensure that where an employee is sick during a period of postponed leave, this is treated as sick leave unless the employee states otherwise.

It is necessary for legal reasons for the employee to choose to take resumed leave or to forfeit that leave. The directive on pregnant workers prohibits the dismissal of an employee from the beginning of her pregnancy to the end of her maternity leave, save in exceptional circumstances not connected with the employee's condition. The Maternity Protection Act 1994 extends this protection to the end of the additional maternity leave period. The European Court of Justice has held in a series of cases that "the dismissal of a female worker on account of pregnancy, or essentially, on account of pregnancy can affect only women and therefore constitutes direct discrimination on grounds of sex". An employee is therefore protected from dismissal in respect of pregnancy-related sick leave from the beginning of the pregnancy to the end of the maternity leave period.

It was felt necessary to include in the Bill a mechanism to deal with a situation where an employee falls ill after she has returned to work on a temporary basis. She must resume her maternity and-or additional maternity leave, as appropriate, or forfeit the right to the leave. Otherwise, due to the legal protection in place up to the end of additional maternity leave, employers will not allow employees to postpone or split their maternity leave due to the risk of potentially extending maternity protection for the duration of a prolonged period of sick leave.

Section 6(6) is constructed so that an employee who has returned to work temporarily due to the hospitalisation of her child, who is then absent from work due to sickness, must at the time she notifies her employer of her illness in the normal way also indicate she is taking sick leave. Otherwise, she will be automatically deemed to be on resumed maternity leave. This construction leaves the option with the employee of choosing either resumed maternity leave or sick leave.

This is similar to the reason given by the Minister of State for the other amendments on unused leave and I accept it.

Amendment, by leave, withdrawn.
Amendments Nos. 24 and 25 not moved.
Question proposed: "That section 6, as amended, stand part of the Bill."

Much of this section refers to notifying the employee in writing. The question of whether e-mail is covered should be clarified. From an employer's point of view, I have noted that many people would send an e-mail to an employer in notifications. In the overall context of the Bill, we must clarify that we are not just talking about handwritten notifications.

We have to accept that not everyone is e-mail friendly.

We are not just referring to e-mail.

A letter would go automatically—

No, a letter would go automatically, but an employer should also accept an e-mail communication.

Putting it in writing is the only safe way to ensure notification. Not everyone has e-mail or is familiar with it.

My advice is that the term "writing" includes e-mail communications.

Question put and agreed to.
SECTION 7.

An Leas-Chathaoirleach

Amendments Nos. 26, 28 and 29 form a composite proposal and may be discussed together by agreement.

Government amendment No. 26:
In page 9, line 3, to delete "A pregnant employee" and substitute "Subject to subsection (3), a pregnant employee".

Section 7 provides a new entitlement to time off from work to attend antenatal classes. It is necessary to amend this section by the insertion of a new subsection (3) to provide for exclusions for members of the Defence Forces and the Garda Síochána serving overseas or in other exceptional circumstances. The Department of Justice, Equality and Law Reform was contacted by the Defence Forces and the Garda Síochána stating that, in certain exceptional circumstances, it might not be possible to allow female members engaged in emergency operational and other duties to avail of these rights.

I am advised that this amendment will not result in women members of the Defence Forces and the Garda Síochána being prevented from attending antenatal classes as, in most cases, a pregnant member of these forces who has notified her employers of her condition, is unlikely to be on active service of the nature outlined. However, the exclusions are necessary to ensure that the operations of the Defence Forces and the Garda Síochána are not compromised in any way.

I am pleased to see this compassionate amendment.

I agree.

Amendment agreed to.

I move amendment No. 27:

In page 9, line 8, to delete "(other than the last 3 classes in such a set)".

On the one hand, the Minister of State claims that what these amendments will rectify does not need to be provided for because the class is normally held during the one pre-confinement month, when maternity leave has commenced. However, logically, there can be no objection to providing a right to leave the last three classes. For example, what if the third last class is held before the employee takes maternity leave? Without this amendment to the Bill, she would not have the right to attend it.

The way in which the section is constructed obscures what is effectively a compromise between the social partners who deliberated on the matter. The working group recommended that provision be made in legislation or in regulations for paid time off for mothers to attend one complete set of antenatal classes. At least, three of the classes are to be taken during the pre-confinement maternity leave period. The current position is that employees are not entitled to any paid time off to attend antenatal classes.

Employers' representatives on the working group agreed to a number of commitments, which have a direct cost implication for them, including this one. The compromise reached was that employers would pay employees for time off to attend antenatal classes apart from the last three, some of which may be taken during the pre-confinement maternity leave period. Time off to attend the remaining classes will be at the employee's own expense unless the employer agrees otherwise, which is often the case in any event.

I agree with the Senator that the last three classes might not necessarily fall into the pre-confinement period, which has now been reduced to a fortnight. There was wheeling and dealing and it was generally agreed at the meetings of the working group that a woman would need six to eight antenatal classes. They suggested that it be taken as being six, for half of which they would pay. This was agreed and is now reflected in this section.

I support Senator Tuffy's amendment. I am familiar with antenatal classes in the Western Health Board region. In many cases there are four classes. It is always recommended that these take place prior to month eight in case anything happens in the last four weeks and the delivery is premature. Given the small cost to employers of these classes, many of them will facilitate the employee by allowing her to have time off. To stop the last three would discriminate against women in areas like the Western Health Board region where it would mean not being paid for time off for three out of the four classes. The difficulty is not with the good employers but with the bad ones who do not implement rights and fight them all the way. While I accept this tiny issue is part of a larger agreement, I call on the Minister to reconsider it.

I will have this examined between now and the next Stage, which should be Second Stage in the Dáil.

If the Minister is prepared to reconsider this, I will withdraw my amendment.

Amendment, by leave, withdrawn.
Government amendment No. 28:
In page 9, line 11, to delete "An expectant father of a child" and substitute "Subject to subsection (3), an expectant father of a child".
Amendment agreed to.
Government amendment No. 29:
In page 9, between lines 19 and 20, to insert the following:
"(3) Subsection (1) or (2) shall not apply–
(a) to a member of the Defence Forces who is–
(i) on active service within the meaning of section 5 of the Defence Act 1954 or deemed to be on active service within the meaning of section 4(1) of the Defence (Amendment) (No. 2) Act 1960,
(ii) engaged in operational duties at sea,
(iii) engaged in operations in aid of the civil power,
(iv) engaged in training that is directly associated with any of the activities referred to in subparagraphs (i), (ii) and (iii) of this paragraph, or
(v) engaged in any other duty outside the State,
(b) if the Chief of Staff of the Defence Forces in exceptional circumstances so directs, to a member of the Defence Forces who is required to perform a duty which is, in the opinion of the Chief of Staff of the Defence Forces, of a special or urgent nature for so long as the member is performing the duty,
(c) to a member of the Garda Síochána who is on the direction, or with the consent, of the Commissioner of the Garda Síochána serving outside the State performing duties of a police character or advising others on, or monitoring them in, the performance of such duties or any related duties for so long as the member is so serving, and
(d) if the Commissioner of the Garda Síochána in exceptional circumstances so directs, to a member of the Garda Síochána who is required to perform a duty which is, in the opinion of the Commissioner of the Garda Síochána, of a special or urgent nature for so long as the member is performing the duty.”.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.

An Leas-Chathaoirleach

Amendments Nos. 31 and 32 are alternatives to Government amendment No. 30. It is proposed to discuss Nos. 30 to 32, inclusive, together. Is that agreed? Agreed.

Government amendment No. 30:
In page 9, lines 39 to 42, to delete "An employee whose date of confinement was not more than 4 months earlier, who is breastfeeding her child and has informed her employer that she is doing so, shall be" and substitute "An employee who is breastfeeding shall be".

To maintain consistency with national breastfeeding policy, which was changed by the Minister for Health and Children on 5 August 2003 to promote exclusive infant breastfeeding for the first six months, I propose to amend the provisions contained in section 8 to now provide an entitlement to breastfeeding breaks in the workplace or reduced hours to breastfeeding employees who have given birth within the previous six months.

A breastfeeding employee is defined in section 2 of the principal Act as "An employee whose date of confinement was not more then 26 weeks earlier, who is breastfeeding and who has informed her employer of her condition". As this definition encompasses the six month period, I am advised it is not necessary to make specific reference to six months in the amendment to section 8 of the Bill. While I am not too hung up about it, this is the advice I have received. The main thing is that we are changing it from four months to six months.

While I am not trying to be awkward, I wish to draw attention to a problem. I do not know how a woman can work and breastfeed at the same time. It is an impossibility and would be very detrimental to the mother's health. I breastfed my daughter for seven and a half months and I do not know how a woman could work and breastfeed.

Figures produced by La Lèche League show that Ireland has the lowest percentage of mothers breastfeeding in Europe. Why is this the case? I was the only one out of 20 in my prenatal class in 1970 who breastfed. At that stage I thought every mother breastfed. There is something radically wrong in our culture. Breastfeeding is the greatest way for a mother and child to bond. As life is hard enough and we all have our trials and tribulations, we should all encourage mothers to breastfeed. In Ireland 31% of mothers breastfeed at birth in comparison to 98% in Denmark, 97% in Sweden and 69% in the UK.

Breastfeeding gives the child the emotional stability to survive the struggles and problems life puts in all our paths. I stayed here today specifically to make this point. There is something seriously wrong in our country if we have the lowest breastfeeding rate in Europe. Some 33 years ago I was the only one out of 20 breastfeeding. I would prefer those present not to ridicule my opinion about working mothers. It would be unfair to a mother to breastfeed and to go to work. How can a mother go home to breastfeed and then come back to work again? Breastfeeding would not work like that; a mother needs to mind herself and protect herself when she is breastfeeding.

The nutrients in breast milk are much better than those in processed formula milk. Nutrition is key to the formative stage of the baby's brain. Breastfeeding benefits emotional stability and physical and intellectual development. I am an advocate of breastfeeding. It is a tragedy that 33 years later we are still behind the times here. I would be interested in hearing Senator Henry's opinion as to why we have the lowest rate in Europe. I apologise for diverting to this topic. However, it is an important social point.

I support Senator White's comments on the value of breastfeeding. It is very important physically, psychologically, intellectually, etc. It is very sad that the incidence of breastfeeding is so low in this country and worse still that it goes down for mothers lower on the socio-economic scale. A child in social class one is much more likely to be breastfed than a child in social class five.

I take the Senator's point that it is more difficult for women to work and breastfeed. We must remember that in most of the world women do most of the agricultural work and breastfeed babies at the same time. The baby on the back who is being breastfed is the lucky one rather than the one who is a year older and has to be left at home and is getting goodness knows what from a dirty bottle. While I fully support her sentiments, we must recognise that many women have to work and breastfeed. It is more difficult in industry, schools or hospitals than it is in a country where women work in agriculture. However, it is a very big improvement to have employers play their part in encouraging breastfeeding, which has been a real problem here.

Refugees soon realise that breasts in the western world are considered sexual attributes rather than organs of nutrition. Frequently, they feel that it is not socially desirable to breastfeed and rather than being a good example to us, they stop doing it also.

We all support breastfeeding mothers. The main thrust behind the Bill is to get the best possible deal for mothers who breastfeed. I accept that it is difficult for mothers who work and breastfeed. I admit that I am part of the age group that had to give up work on getting married. We stayed at home to work and rear children. We generally had more children than women have today and we breastfed them. It is difficult, but women are adaptable and can manage.

It is also difficult for women to work when they have young children, regardless of whether they breastfeed. I wish more women would breastfeed. It is our job to encourage them to do so, by enacting legislation to make it easier for women to work and breastfeed.

I agree with Senator White's sentiments, there is no way any of us will—

Why are we at the bottom of the breastfeeding league in Europe? I accept what Senator Henry said. What is Senator Terry's opinion?

An Leas-Chathaoirleach

Allow Senator Terry to continue. We cannot have questions across the floor of the House.

I apologise.

It is due to convenience and because women are not encouraged to breastfeed. This is not just a workplace issue. Many women who work in the home do not breastfeed either.

As I said, it is a question of education. Women are not encouraged to breastfeed by the medical profession. It is a great pity that it is generally not a popular thing to do at present. It is our duty to improve working conditions for breastfeeding mothers. Indeed, I would like to improve working conditions for all mothers. Fathers have a big part to play in this but only female Members are in the House. Where are all the Members who are fathers? Again, it is women who bear the brunt.

I appreciate that the Minister is trying to tackle this problem and he recognises that we must make allowances for women. We have encouraged women back into the workforce in which they are a great asset. They contributed enormously to the development of the Celtic tiger. That said, women give birth and have to look after children, particularly in their early months. Employers and the Government need to recognise that there is a cost in providing for mothers with young babies. We are not going far enough. As in other European countries where breastfeeding is more common, we should also give mothers with young babies more time off work. This is a start but we should do more.

To be fair to our male colleagues, Senators Terry, Henry and I are spokespersons on justice so it is appropriate that we are debating the Bill. It is not necessarily a comment on the issue that only women are present.

From what the Minister of State, Deputy O'Dea, said, his amendment is similar to what was proposed by the Labour Party. We proposed that breastfeeding breaks would continue for six months. On that basis, I am happy to withdraw my amendment.

While I agree with Senator Terry, I do not know how a mother can work and breastfeed. The breastfeeding would be a disaster. I do not know how it can be done.

That is a terrible criticism of those women who manage it.

I do not know how it can be done.

An Leas-Chathaoirleach

We cannot have repetition.

I accept the extension to six months for breastfeeding breaks. I view this in the context of future extensions to maternity leave, but I am still mystified about the other matter.

The Minister of State's amendment covers what I am trying to achieve. We have a new and dreadful problem of obesity in children. Obesity in babies is much less likely if they are breastfed. The national breastfeeding policy has extended the amount of time a child should be breastfed before solids are introduced into the diet. It is a serious health issue and what the Minister of State has done will fulfil my objectives.

I fully accept the position of Senator White and the other views put forward. I brought my child to Dublin to breastfeed and continued to breastfeed when I was back working in Galway. It is a huge challenge and we need to recognise the efforts of many women to continue breastfeeding for as long as they can. The amendment recognises the change in policy and this is most welcome. While it is not the ideal solution, it makes life easier. It would be lovely if mothers could stay at home with their children and not to have to work, but this is the real world and that is not the case.

Women do not breastfeed for different reasons. Sometimes it does not work out for them, or it is not convenient and so on. It is important to point out that mothers who do not breastfeed are not inferior. It is important to bring balance to the discussion.

I congratulate the Minister of State, Deputy O'Dea, for his bravery in being here. He is doing a difficult job.

I thank Members for their comments. I agree that there is something ingrained in Irish culture which results in us being at the bottom end of the breastfeeding league. We compare unfavourably to some continental countries in which levels are as high as 99%. However, we are starting from a low base. Ten years ago, some of those countries with levels in excess of 90% had levels of approximately 65% to 70%. At that time we were between 10% and 15% but now we have levels in excess of 30%. We are moving in the right direction. The amendment represents a small step in the right direction.

In regard to the general comments about the feasibility of breastfeeding and working at the same time, we have looked at the experience and legislation in continental countries. In some countries, an hour's break is provided twice a day while in other countries it is a single two hour break in the day. Such legislation reflects the fact that increasing numbers of working women are breastfeeding. I am aware that amendments have been tabled on the timescale and the hours that will be provided. This will be done by way of regulation once the legislation is enacted.

I thank Members for what was a most informative discussion. I do not know if I am any wiser as a result, but I am certainly better informed.

On the subject of why more women are not breastfeeding – I accept that this does not come within the remit of the Department of Justice, Equality and Law Reform – at its clinics, the Department of Health and Children hands out formula milk to new mothers. This is well and good for those mothers who have made a decision to bottle feed for whatever reasons but the matter needs to be examined. If clinics are giving free formula, there is no encouragement to breastfeed. I would much prefer the clinics to concentrate on encouraging women to breastfeed. I take it the matter does not arise here but as we are discussing encouraging more women to breastfeed, this is an area which should be examined.

Amendment agreed to.
Amendments Nos. 31 and 32 not moved.

An Leas-Chathaoirleach

Amendments Nos. 35 and 36 are alternatives to amendment No. 33 and amendments No. 37 and 38 are related. Amendments Nos. 33 and 35 to 38, inclusive, may be discussed together. Is that agreed? Agreed.

I move amendment No. 33:

In page 9, lines 49 to 51 to delete "where facilities for breastfeeding are provided in the workplace by her employer, or".

Section 8 provides for breastfeeding breaks where facilities are available in the workplace. Where they are not available, the mother will get additional time off. I seek to delete certain words to effect a change whereby the section provides simply that a mother will get time off work for the purpose of breastfeeding in accordance with the regulations. Many workplaces do not have breastfeeding facilities. Will the Minister of State consider providing additional time to mothers who breastfeed?

My amendment also seeks to change the wording in section 8 to make it positive. The only facility required for breastfeeding is a chair to permit the mother to sit down. I do not see why employers should not have to provide a chair. Nothing else is needed. If the chair was in the corner of an office or where other people have coffee, that would be fine. It is not as though this is a big deal. It would encourage people to look on breastfeeding as a natural process if we provided that some attempt had to be made to put something as simple as a chair in place. I am not looking for a room to be provided. If a woman wishes to feed on the job rather than keep going in and out, there should be a chair. There will not be dozens of women sitting around breastfeeding. Babies are very quiet when they are this young. It is only when they begin to move around that one begins to run into trouble with them. In respect of this legislation, we are discussing babies who could fit in a basket.

It would be useful if employers had to provide facilities. The Bill, as drafted, does not oblige employers to provide breastfeeding facilities. The wording in section 8 is unnecessary. Why does the Bill provide that an employer shall not be required to make provisions? If he or she is not required to make the provision anyway, why not leave the section out? Perhaps the section is included to keep some employers represented on the working group happy. It is not good legislative drafting to include a completely unnecessary subsection. It has a negative tone.

I agree.

I ask the Minister of State to consider my proposal to delete lines 6 to 10 on page 10.

Senator Henry's amendment No. 35 relates to the definition of "special". It is important to ensure that we do not establish the right to a special room. If employers believe they have to provide special facilities in the form of air-conditioned rooms, they will say they cannot do so. Elsewhere in the Bill, a section provides that employers do not have to go to extreme costs. Senator Henry's point makes sense. Facilities do not need to be special. It is important that employers bear that in mind and that the legislation does not preclude anything.

While I understand what she is aiming at, Senator Terry's amendment would have the effect of reducing the employee's rights under the Bill. Her amendment is contrary to the recommendations of the maternity working group. While I acknowledge it probably was not the intention, as it stands the amendment would restrict breastfeeding breaks to the workplace. It takes no account whatsoever of employment situations where it might not be possible or feasible to provide suitable breastfeeding facilities.

Section 8 of the Bill implements in full the recommendations of the working group on breastfeeding. It provides that an employee who is breastfeeding and has informed her employer accordingly will be entitled for the purpose of breastfeeding to either breaks where facilities are provided or a reduction of working hours. The employer in each case decides whether breastfeeding breaks or a reduction in working hours will be available to the breastfeeding employee. Such time off work will attract payment as normal. Section 8 of the Bill is also consistent with Article 10 of the International Labour Convention on Maternity Protection which was adopted in Geneva in June 2000. Article 10 of the convention provides that a woman shall be provided with a right to one or more daily breaks or a daily reduction of hours worked to breastfeed her child.

Section 8(2) of the Bill provides that an employer shall not be required to provide facilities for breastfeeding in the workplace if the provision of such facilities would give rise to a cost other than a nominal cost to the employer. Where an employer chooses not to provide facilities for breastfeeding in the workplace to avoid a greater than nominal cost, the employer will be required to agree to a reduction of working hours for the employee to facilitate her in continuing to breastfeed after her maternity leave has ended.

The Supreme Court ruled in a case relating to the Employment Equality Act that one can only place social obligations in the public interest on private property owners where no more than nominal costs will be incurred. This judgment has been reflected in the wording used in section 8(2) of the Maternity Protection (Amendment) Bill. We have sought legal advice regarding whether we could go beyond the Supreme Court ruling in this legislation. The advice was that we may not. Where an employer does not provide breastfeeding facilities in the workplace, the employer will be required to agree, as I have said, to a reduction in the working hours of the employee.

The court's ruling was a constitutional interpretation of the Employment Equality Act. Under Article 43 of the Constitution, which deals with private property, a person in the private sector cannot be obliged to provide facilities like this if it will involve more than a nominal cost. We recognise that this provides an out for employers. They can invoke the protection of Article 43 of the Constitution. In the case of a small operation with a low general cost base, an employer could say the provision of breastfeeding facilities would incur a more than nominal cost adding significantly to that cost base. To get around this, we are providing the alternative that the employer will be obliged and compelled to give breastfeeding employees time off with full pay to breastfeed their children.

Senator Henry's amendment could be amended to provide that while facilities must be provided in the workplace, they need not be special breastfeeding facilities. The Bill states an employer shall not be required to provide breastfeeding facilities in the workplace if the provision of such facilities would give rise to a cost other than a nominal cost. We must define the facilities. They do not need to include a glorified, air-conditioned room. A definition of this sort would protect the employer as well as the employee. Otherwise, it could be the case that if I wished to breastfeed and my employer said I could use a chair in a room, I might decide the facilities provided were not good enough.

If the childminder is close to the workplace, many employees might prefer to have their child brought to them. The issue is the definition of "special" as it relates to appropriate facilities for a mother who chooses to breastfeed at work.

Now that we have explained all we are looking for is a chair, will the Minister of State look at this again because I certainly do not want to get into a tangle with the Supreme Court? A chair would be a nominal amount. Senator Tuffy spoke about making this positive. People breastfeeding babies on aeroplanes, boats or elsewhere do not expect some special room – they just sit there and feed the child. It is not expected that people should have such facilities and it would be ridiculous. It would run totally counter to what the Bill is trying to do, namely, to encourage breastfeeding and not isolate people in some air-conditioned room, as Senator Cox said. Perhaps the Minister of State will look at this between now and Report Stage. Even if all the great powers say it will not do, perhaps the Minister of State might be able to do something to make it look a bit more positive.

Regarding Senator Henry's comments, what is the Minister of State's view on deleting subsection (2), as proposed in my amendment?

An Leas-Chathaoirleach

Which amendment?

Amendment No. 36.

The difficulty is that it will make no difference whatsoever whether we delete or leave it. It was included to reflect the decision of the Supreme Court. If we delete it, we are still bound by the—

Why leave it in? As we said, it has a somewhat negative tone; it is as if it is saying the opposite. Why bother leaving it in?

This is the law. The law in this country is subject to the Constitution. The Supreme Court is often called on to decide what the Constitution means and this is what it means in this context, according to the Supreme Court. I take the Senator's point that it gives a negative aspect to the Bill. If there is no overwhelming legal difficulty in removing it and in view of the fact it is the law anyway, we will examine it.

To go back to what Senator Henry said, we are trying to provide for an either-or situation – either employers provide breastfeeding facilities in the workplace or they do not. I imagine many employees would prefer the option of a break to go away and breastfeed somewhere else if the facilities in the premises in which they work are not adequate. Where breastfeeding facilities are provided, I am totally hostile to the idea of delineating what should be in place in primary legislation. As Members know, we will bring in regulations to deal with all these matters and I will see if we can impose some minimum standards in the regulations.

As I interpret the situation – we might consider some way to tighten it up to provide for this – in circumstances where an employer says he has breastfeeding facilities which are clearly unsuitable or insufficient, the employee can say those facilities are not suitable and choose to avail of option B. The employer is bound by that. That is my interpretation of the situation. If we need to change the wording in any way to make it clear that is our interpretation, I am prepared to look at that.

I do not wish to put a dampener on this again but we may be leaving ourselves open to challenge. I am an employer and I breastfed my daughter for seven and a half months. I accept all one needs is a chair but I am concerned about the conditions. If an employee brought a baby to work, I could imagine them saying that it is not an adequate place for their baby to be kept. I am being realistic. I am talking about the conditions in which the baby is looked after in the interim. If this happened in our company, people would spend the day looking at the baby. We have many staff who have babies and when they bring them in to show them off, the whole place stops. How many work facilities are appropriate for caring for a baby in between breastfeeds? If a person works in the East Wall and lives in Clondalkin, how long would it take to bring the baby in? It would be better to let the person go home and breastfeed there.

Senator Terry made the point about good companies. As an employer, the relationship with staff is mutually beneficial. Employers need staff and staff need employers. I do not see it as a conflicting situation but as one to be faced together. There are companies, however, which would not have the same view. Our company is run by two women and we were very maternalistic for the first ten years but we could not continue to mind everybody.

Where would one mind a baby? I know what Senators Henry and Terry are doing – they are trying to push out the boundaries for the future whereby maternity leave may be extended beyond what it is at present. However, we need to be careful. Somebody could be awkward and ask whether a room is appropriate for a baby. A former Head of State visited our company out of curiosity and his wife brought her baby with her and breastfed during the visit. It would be diplomatic not to mention the name of the country of which he was president. I am talking about staff and about where a baby would be looked after. Could somebody take a case? A company may not be able to afford a crèche.

Someone might run away with the child.

Anything could happen. Semi-State bodies are the best for providing crèches for babies. The semi-State sector has set the pace in providing crèches adjacent to workplaces but I am thinking of the average company.

Senator White has made a good point. How does the Minister of State envisage staff in Leinster House will deal with this Bill when it is passed? Let us say for argument's sake that six mothers are breastfeeding. Where—

It will not be in the antechamber, because that is not allowed in Leinster House.

How does the Minister of State envisage this will work out if six members of staff, including Members, choose to breastfeed their children at work?

It will be easier than stopping smoking in the bar.

There are two options. The employer must provide the facilities or, if he cannot do so for some reason or other, he must give the employee paid time off to avail of breastfeeding facilities. Due to the nature of the business we do in Leinster House, I imagine the facilities will be provided. I am a busy constituency Deputy and a busy Minister of State, so I will not personally make the arrangements. I thank the Senator for offering me the job but it will be up to other people to make the arrangements. I am only taking the Bill through the Oireachtas.

How much paid time off is the Minister of State thinking about? I am in the restaurant business and I cannot envisage where I would provide the space. In the restaurant business, space is at a premium, particularly on high streets. O'Brien's sandwich bars are very small and breastfeeding could not possibly go on in those types of premises. Has the Minister of State thought about much paid time off will be allowed?

We are considering that carefully with a view to drawing up a regulation to supplement the Bill's provisions. That sort of detail is not appropriate for primary legislation. Detailed regulations will set matters out specifically. I take the Senator's point that we may have to deal with different businesses in different ways.

Even if it is not provided for in legislation, employers should try to make arrangements within their businesses. Senator Terry raised an interesting point. Leinster House is not great for providing for families.

It is a man's club.

It is not a man's club either as it is not family friendly for fathers. I do not have children but I know that it will not be easy for me when I do. It would be similar if I was a male parliamentarian and the same is true for staff of the Houses. Facilities are not provided to promote this area. The lifestyle people must live here involves them working very late hours. The Oireachtas is not leading the way. We are introducing legislation, but Leinster House does not lead the way in terms of how it organises facilities.

It would be best if employers tried to make arrangements within the workplace. From an economic point of view, this would be the best way to try to address the situation. This is an added reason to remove the subsection, as proposed by the Labour Party amendment. An employer is not obliged to provide facilities, but it is not necessary to say that in the legislation. It should be the other way round. We should be trying to promote the provision of facilities such as a crèche. I do not think we have a crèche in Leinster House, but perhaps I am wrong.

There is none, but one was promised.

Most people would not believe that if we told them. They would presume we have that facility. We talk about such matters, but we are way behind in terms of implementation.

Amendment, by leave, withdrawn.

I move amendment No. 34:

In page 10, to delete lines 1 to 5.

This proposes to delete lines 1 to 5 on page 10. I spoke about this previously.

This has been discussed.

Acting Chairman (Mr. Mooney): My understanding is that amendment No. 34 was not formally moved or discussed before now. The Minister of State is indicating that it was discussed in the context of other amendments, but it was not formally moved previously.

It should have been taken with amendment No. 33 because it leads on from it.

Amendment, by leave, withdrawn.
Amendment Nos. 35 to 38, inclusive, not moved.

I move amendment No. 39:

In page 10, lines 36 to 37 to delete "to whom subsection (1) applies" and substitute "who has informed her employer under subsection (1) that she is breastfeeding her child".

The purpose of this amendment is to remove ambiguity in the section as it is currently worded.

I see the point of the Senator's amendment. However, I am advised that it does not necessarily improve the text. Subsection (1) does more than provide for notification to the employer. To make reference to it in the manner proposed in the amendment does not convey its full content and the proposed construction is contrary to normal drafting convention. The advice is that the subsection is satisfactory as it stands. The adoption of the amendment might bring confusion because the subsection does more than provide for notification to the employer.

Amendment, by leave, withdrawn.
Section 8, as amended, agreed to.
NEW SECTION.
Government amendment No. 40:
In page 10, before section 9, to insert the following new section:
9.–Section 16 of the Principal Act is amended–
(a) by the substitution of the following subsection for subsection (1):
‘(1) If a woman who has been delivered of a living child (in this section referred to as "the mother") dies at any time before the expiry of the twenty-fourth week following the week of her confinement, the father of the child (if he is employed under a contract of employment) shall be entitled in accordance with this section to leave from his employment for a period ending as follows–
(a) if the mother dies before the expiry of the sixteenth week following the week of her confinement, the period ends, subject to section 16B, at the end of that sixteenth week, and
(b) if the mother dies at any time after the expiry of that sixteenth week, the period ends, subject to sections 16A and 16B, at the end of the twenty-fourth week following the week of her confinement.',
(b) by the substitution of the following subsections for subsections (3) and (4):
‘(3) Subject to section 16B, the period of leave under subsection (1) shall commence within 7 days of the mother's death; and in this section and sections 16A and 16B–
(a) a period of leave which ends as mentioned in paragraph (a) of subsection (1) is referred to as “subsection (1)(a) leave”, and
(b) a period of leave which ends as mentioned in paragraph (b) of that subsection is referred to as “subsection (1)(b) leave”.
(4) A father who has taken subsection (1)(a) leave shall, if he so wishes, be entitled to further leave from his employment for a maximum period of–
(a) 8 consecutive weeks commencing immediately after the end of his subsection (1)(a) leave, or
(b) 8 weeks, all or part of which is postponed in accordance with section 16B, commencing either in accordance with that section or immediately after the end of his subsection (1)(a) leave, as may be appropriate.',
and
(c) in subsection (5), by the substitution of ‘Subject to section 16B, entitlement to further leave under subsection (4)' for ‘Entitlement to further leave under subsection (4)'.”.

The amendment proposes to delete section 9 of the Bill, as initiated, in order to remove subsections (1A)(a), (b), (c) and (d) and any consequential references and to insert a new section 9 in the Bill which applies the appropriate increases to the periods of fathers' leave under section 16 of the principal Act, consequential to a previous Government amendment.

Subsections (1A)(a), (b), (c) and (d) of section 9 as initiated create an unintended link between the father's leave entitlement and the mother's leave entitlement. This is inconsistent with section 16 of the principal Act which provides for certain leave entitlements for a father in his own right, if he is in a contract of employment, in the event of the death of the mother within 22 weeks of the birth of a living child. For example, subsection (1A)(a) provides that if the mother terminated her additional maternity leave under section 14A of the Bill and subsequently died, then the father, provided he is employed under a contract of employment, would not be entitled to leave from his employment.

Linking the father's entitlement to the mother's in this manner would have the effect of denying the father his leave entitlement in his own right, as provided for under section 16 of the principal Act. A similar issue arises in subsection (1A)(d). Subsections (1A)(b), and (c) also give rise to inconsistencies in section 16 of the principal Act by tying the father's entitlement to leave to the mother's leave which has been postponed.

The proposed amendment of section 10 of the principal Act, to reduce the compulsory period of pre-confinement maternity leave by two weeks, effectively increasing the post-confinement period to 16 weeks, gives rise to the consequential amendment of section 16 of the principal Act which makes provisions for father's leave in the event of the death of the mother. The new section 9 of the Bill incorporates these consequential amendments. Accordingly, I propose to delete the existing section 9 and to insert an amended section 9 which removes the entire subsection (1A) and any consequential references to it.

This amendment also gives rise to a number of consequential technical amendments to sections 10 to 13, inclusive, of the Bill and to the application of any consequential increases to the father's leave entitlements arising from the appropriate amendment. There was an unintentional tie-up between the mother's leave entitlements and the father's leave entitlement to which he should be entitled in his own right. This tie-up reduced the father's leave entitlement in the sad situation where a mother dies within a certain period. It is to get rid of that and to improve the situation regarding parental leave that this amendment has been introduced.

Acting Chairman

For the guidance of the House, amendments Nos. 42 to 45, inclusive, 50 to 52, inclusive, 55, and 57 to 62, inclusive, are consequential on amendment No. 40.

I ask the Minister of State for some advice on this area and to put some scenarios to him. Amendment No. 40, which is proposed by the Government, contains the phrase "if he is employed under a contract of employment". I would like the Minister of State to clarify some concerns I have about this provision. When a mother dies during childbirth, for example, the father may not be entitled to anything under the social welfare code because he is self-employed or he is the director of a company in which he owns more than 15% of the shares. I am concerned about the payment of maternity leave benefit to a person who is self-employed or a director. Can such payments be paid to a father? Can benefit payments be transferred to a father if he is under a contract of employment? Legislation relating to fixed-term employment was passed some months ago. The rights of workers are now provided for under the Protection of Employees (Fixed-Term Work) Act. The legislation provides that the rights of a person employed under fixed-term contract law will be commensurate with those of a permanent employee. I am interested in the effect of the "under a contract of employment" proviso in the areas I have mentioned.

Acting Chairman

I advise the House, and Senators Tuffy and Terry in particular, that amendments Nos. 41 and 42 are alternatives to amendment No. 40 for the purposes of this debate.

I am not sure, but I think my party's amendment has the same intention as the Government's amendment. Will the amendments have the same effect?

Can the Minister of State explain the consequential amendments? Many of them are similar to the amendments that have already been put down about maternity leave.

The maternity protection and paternity leave schemes are concessions granted by employers to employees. The schemes apply only to people who are employed, as we understand the term "employed". A person who is self-employed is, in effect, employed by himself or herself. It is possible that a person who forms a company or is the managing director of a company is under a contract of employment from the company. It is obvious that the paternity leave provisions would apply to such people. The provisions apply to persons who are employed under fixed-term contracts.

I did not anticipate that I would be asked about the payment of maternity benefit under the social welfare code. I do not have the social welfare code with me to help me to answer the question. One's entitlements depend on the contributions one has made and, for example, if one has paid the contributions at the appropriate rate over the appropriate period. I cannot answer the question. I will get the answer to Senator Cox's question from the Department of Social and Family Affairs. If a father is receiving social welfare at the time the mother dies, I presume he is entitled to the benefit mentioned by Senator Cox. My opinion is based on my recollection of the social welfare code, but I will get a proper answer from the Department of Social and Family Affairs.

Senator Tuffy asked about her amendment, which is substantially the same as the Government amendment. Amendment No. 40 achieves substantially what the Labour Party's amendment sought to do. The consequential amendments have been proposed as technical amendments. They will make the appropriate changes to take into account the fact that we have taken out an entire section and replaced it, in effect. The consequential amendments do not have any substance. They will make the technical changes which arise from the substantial amendment.

I would like to ask about leave and the payment of benefit. One of the benefits I mentioned relates to the payment of maternity benefit, which reaches a maximum of €175 per week. If a mother who is in receipt of maternity benefit dies when her child is very young, the father should inherit her right to receive payments, even if he is in employment and has the right to take time off. Perhaps this is outside the Minister of State's jurisdiction. If we are to transfer certain rights, we should also transfer the right to receive payments. A father who has to take time off work in such circumstances may not be paid by his employer because it is unlikely that the employer will have a paternity benefit pay scheme. As a consequence, such a father may depend on the payment of maternity benefit to a greater extent.

That is true, as long as he is not entitled to some other form of social welfare.

If he is in employment, he will not be entitled to some other form of social welfare.

He could be entitled to disability benefit.

He will probably have to take time off work, however.

I accept the Senator's point.

It is something we could address with the Department of Social and Family Affairs. If we are to transfer the right to have time off and pension entitlements, we should also deal with this issue.

Amendment agreed to.

Acting Chairman

As acceptance of amendment No. 40 involves the deletion of section 9 of the Bill, amendments Nos. 41 and 42 cannot be moved.

Amendments Nos. 41 and 42 not moved.
Section 9 deleted.
SECTION 10.
Government amendment No. 43:
In page 13, lines 11 and 12, to delete "(1)(a) leave or subsection (1A)(b) leave,” and substitute “(1)(a) leave,”.

This is one of the series of consequential amendments that result from the deletion of section 9.

Amendment agreed to.
Government amendment No. 44:
In page 13, lines 21 and 22, to delete ", subsection (1A)(c) leave”.
Amendment agreed to.
Government amendment No. 45:
In page 13, lines 28 and 29, to delete ", his subsection (1A)(c) leave”.
Amendment agreed to.
Government amendment No. 46:
In page 13, to delete lines 34 to 39.
Amendment agreed to.
Government amendment No. 47:
In page 13, lines 41 and 42, to delete "may, at the discretion of the employer, agree" and substitute "may agree".
Amendment agreed to.
Government amendment No. 48:
In page 13, lines 45 and 46, to delete "date, determined by the employer, that is not" and substitute "date agreed by the father and the employer that is not".
Amendment agreed to.
Government amendment No. 49:
In page 13, after line 53, to insert the following:
"(4) An employer who receives a request under subsection (1) shall notify the father concerned in writing of the employer's decision in relation to the request as soon as reasonably practicable following the receipt of it.".
Amendment agreed to.
Government amendment No. 50:
In page 14, lines 10 and 11, to delete ", subsection (1A)(c) leave”.
Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11.
Government amendment No. 51:
In page 14, to delete lines 25 to 37 and substitute the following:
"(a) his subsection (1)(a) leave or part of such leave,
(b) his subsection (1)(a) leave or part of such leave and a period of further leave under section 16(4),
(c) his subsection (1)(b) leave or a period of further leave under section 16(4), as the case may be, or part of such leave,”.
Amendment agreed to.
Government amendment No. 52:
In page 14, lines 41 and 42, to delete ", or subsection (1A)(b) leave,”.
Amendment agreed to.
Government amendment No. 53:
In page 14, to delete lines 50 to 52 and in page 15, to delete lines 1 to 3.
Amendment agreed to.
Government amendment No. 54:
In page 15, lines 5 and 6, to delete "may, at the discretion of the employer, agree" and substitute "may agree".
Amendment agreed to.
Government amendment No. 55:
In page 15, to delete lines 25 to 40 and substitute the following:
"(i) the subsection (1)(a) leave or the part of such leave,
(ii) the subsection (1)(a) leave or the part of such leave and the period of further leave under section 16(4),
(iii) the subsection (1)(b) leave or the period of further leave under section 16(4), as the case may be, or the part of such leave,”.
Amendment agreed to.
Government amendment No. 56:
In page 15, between lines 50 and 51, to insert the following:
"(5) An employer who receives a request under subsection (1) shall notify the father concerned in writing of the employer's decision in relation to the request as soon as reasonably practicable following the receipt of it.".
Amendment agreed to.
Government amendment No. 57:
In page 16, lines 35 to 37, to delete "(1)(a) leave, subsection (1)(b) leave, subsection (1A)(b) leave or subsection (1A)(c) leave,” and substitute “(1)(a) leave or subsection (1)(b) leave,”.
Amendment agreed to.
Government amendment No. 58:
In page 17, lines 1 to 3, to delete "or subsection (1A)(b) leave, as the case may be,”.
Amendment agreed to.
Section 11, as amended, agreed to.
SECTION 12.
Government amendment No. 59:
In page 17, to delete lines 39 to 47 and substitute the following:
"12.–Section 21 of the Principal Act is amended by the addition of the following subsection:".
Amendment agreed to.
Government amendment No. 60:
In page 18, lines 4 and 5, to delete ", paragraph (b) or (c) of subsection (1A) or subsection (4) of section 16,” and substitute “or (4) of section 16”.
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
Government amendment No. 61:
In page 18, lines 13 to 23, to delete paragraph (a) and substitute the following new paragraph:
"(a) in subsection (1), by the substitution of ‘be treated as if she or he had not been so absent' for ‘be treated as if she had not been so absent', and”.
Amendment agreed to.
Government amendment No. 62:
In page 18, lines 29 and 30, to delete ", or subsection (1A)(c) leave,”.
Amendment agreed to.
Government amendment No. 63:
In page 19, lines 8 and 9, to delete "employee's employment.', and" and substitute "employee's employment.'.".
Amendment agreed to.
Government amendment No. 64:
In page 19, lines 10 to 14, to delete paragraph (c).
Amendment agreed to.
Section 13, as amended, agreed to.
Sections 14 to 20, inclusive, agreed to.
NEW SECTIONS.

Acting Chairman

Amendments Nos. 65 and 67 are consequential and may be taken together, by agreement.

Government amendment No. 65:
In page 22, before section 21, to insert the following new section:
21.–The Principal Act is amended by the insertion of the following section after section 33:
33A.–(1) In this section–
"discrimination" means–
(a) a failure, which gives rise to a dispute, to comply with a provision of Parts II to IV, or
(b) an unfair dismissal (within the meaning of the 1977 Act) of an employee resulting wholly or mainly from–
(i) the employee's pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith, or
(ii) the exercise or proposed exercise by the employee of the right under this Act to any form of protective leave or natal care absence, within the meaning of Part IV, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted bysection 7 of the Maternity Protection (Amendment) Act 2003), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 8 of the Maternity Protection (Amendment) Act 2003);
"employee", in relation to proceedings under the 1977 Act, has the meaning assigned to it by that Act;
"indirect discrimination" shall be construed in accordance with section 22 (as amended by Regulation 4(b) of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001)) of the Employment Equality Act 1988 in so far as that section relates to discrimination on the gender ground within the meaning of that Act;
"proceedings" means–
(a) any proceedings under this Part before–
(i) a rights commissioner dealing with a dispute referred to the rights commissioner by an employee, or
(ii) the Tribunal,
or
(b) any proceedings under the 1977 Act before a rights commissioner, the Tribunal or the Circuit Court in which a claim is made by an employee for redress under that Act for unfair dismissal on the grounds that the dismissal resulted wholly or mainly from–
(i) the employee's pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith, or
(ii) the exercise or proposed exercise by the employee of the right under this Act to any form of protective leave or natal care absence, within the meaning of Part IV, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted bysection 7 of the Maternity Protection (Amendment) Act 2003), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 8 of the Maternity Protection (Amendment) Act 2003),
and includes any subsequent proceedings, including proceedings on appeal, arising from the claim.
(2) Where in any proceedings facts are established by an employee from which it may be presumed that there has been discrimination or indirect discrimination in relation to him or her, it shall be for the respondent to prove the contrary.
(3) This section is without prejudice to section 6(6) of the 1977 Act or any other enactment or rule of law in relation to the burden of proof in proceedings which may be more favourable to such an employee.
(4) Nothing in this section shall operate to reduce the existing level of protection for employees in relation to the burden of proof in proceedings.
(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) are revoked in so far as they apply to proceedings (within the meaning of this section).'.".

This section makes no change whatsoever to existing law. Its purpose is to incorporate the relevant provisions contained in SI 337 of 2001 into the maternity protection and unfair dismissals legislation by amending the Maternity Protection (Amendment) Bill 2003 to provide for the repeal of the provisions of the statutory instrument. If anyone needs me to go through that in more detail, I will be happy to do so. It does not represent any substantial change in the law.

Amendment agreed to.
Section 21 agreed to.
Government amendment No. 66:
In page 23, before section 22, to insert the following new section:
22.–Schedule 3 to the Redundancy Payments Act 1967 is amended–
(a) in paragraph 5 (which specifies periods which do not breach continuity of employment) inserted by section 12(a) of the Redundancy Payments Act 2003) by the substitution of the following subparagraph for subparagraph (c):
‘(c) a period during which an employee was absent from work–
(i) while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994 or to attend ante-natal classes in accordance with section 15A (inserted bysection 7 of the Maternity Protection (Amendment) Act 2003, or for breastfeeding in accordance with section 15B (inserted by section 8 of the Maternity Protection (Amendment) Act 2003), of the first-mentioned Act,
(ii) while on parental leave orforce majeure leave, or
(iii) while on carer's leave under the Carer's Leave Act 2001,',
and
(b) in paragraph 8A (which specifies absences allowable as reckonable service) (inserted by section 12(b) of the Redundancy Payments Act 2003) by the substitution of the following paragraph for subparagraph (b):
‘(b) a period during which an employee was absent from work–
(i) while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994 or to attend ante-natal classes in accordance with section 15A (inserted bysection 7 of the Maternity Protection (Amendment) Act 2003), or for breastfeeding in accordance with section 15B (inserted by section 8 of the Maternity Protection (Amendment) Act 2003), of the first-mentioned Act,
(ii) while on parental leave orforce majeure leave, or
(iii) while on carer's leave under the Carer's Leave Act 2001,'.".

This makes no substantive change to the law. Section 22 of the Maternity Protection (Amendment) Bill 2003 provides for the amendment of Schedule 3, paragraph 5 of the Redundancy Payments Act 1967 to take account of the new rights to time off to attend antenatal classes and breastfeed. The proposed amendments to section 22 are necessary to ensure consistency with the new provisions contained in section 12 of the Redundancy Payments Act 2003, which was enacted in May 2003 after the publication of the Maternity Protection (Amendment) Bill 2003. The commencement of the provisions contained in this amendment are subject to the commencements of the relevant subsections of section 12 of the Redundancy Payments Act 2003. We are simply saying that, when it comes to calculating people's rights to redundancy payments, time spent on parental leave, at antenatal classes and breastfeeding is all accountable, something to which no one can object.

Amendment agreed to.
Section 22 deleted.
Sections 23 to 25, inclusive, agreed to.
TITLE.
Government amendment No. 67:
In page 3, line 7, after "ACT 1994" to insert ", TO AMEND THE REDUNDANCY PAYMENTS ACT 1967 AND THE UNFAIR DISMISSALS ACT 1977, TO REVOKE IN PART AND ENACT IN RESPECT OF CERTAIN PROCEEDINGS THE EUROPEAN COMMUNITIES (BURDEN OF PROOF IN GENDER DISCRIMINATION CASES) REGULATIONS 2001 WHICH GAVE EFFECT TO COUNCIL DIRECTIVE 97/80/EC OF 15 DECEMBER 1997 ON THE BURDEN OF PROOF IN CASES OF DISCRIMINATION BASED ON SEX".
Amendment agreed to.
Long Title, as amended, agreed to.
Bill reported with amendments.

Acting Chairman

When is it proposed to take Report Stage?

Next Tuesday, subject to the agreement of the Whips. I said on the first amendment that it was indicative of the Minister's commitment to this area and the whole equality agenda that he took on board the issues we raised with him regarding the points made here on Second Stage. However, I am still very concerned about the issue of maternity rights for Members of the Oireachtas and local authorities. We have not come to terms with the issue of providing for the Members of this House the right to be absent herefrom during the period of the maternity confinement, either for the mothers having the babies or for the fathers whose wives or partners might have babies who do not live. If I allow this opportunity to pass, I give up all the reasons for which I thought it important to have women here. One can see the changes that we have made to the legislation today and those made to previous legislation that affects the rights of women, children and many other issues where the contributions of female Oireachtas Members were extremely important.

I once again appeal to the Minister. Perhaps this legislation is not the right vehicle, but I ask him to put this matter on his equality agenda so that, by the time this session finishes, we may have some sort of recognition that the women of this House – the mothers and would-be mothers – have an entitlement to take the appropriate time off just like every other woman in this State without losing out on anything by doing so, and without the Government or Opposition losing out either. If we do not reflect that at some stage in how we treat Members of the Oireachtas and the duly elected people who come before us, we fail ourselves and the Constitution and do not protect women. We are entitled to protection in the same way as every other woman in this country.

I thank the Minister for listening to the previous debate on this Bill and coming forward with changes today. I also fully support Senator Cox in what she has said on many occasions about securing rights for the women of the Houses of the Oireachtas. I ask the Minister to make the necessary changes to make it easier for women to combine child rearing with their work, including breastfeeding. We must make life easier, and we should be setting the scene for that, showing private sector companies that we can look after women in the workplace. We should have our own crèche in this House for staff and members. It is a cause of shame to us that we have not provided that facility. We encourage others to do so but do not do it ourselves. We should take the lead on that, and I ask the Minister to try to make progress.

I thank him for the time that he has given to this Bill. It will certainly make an improvement, but we still have a long way to go. I would like to see more time available to women to take off work when their children are very young. It would benefit children, society and everyone in the long term if those mothers who wish to stay at home with their children when they are young were facilitated. I would like to see that in place.

I thank the Minister and his officials for listening so attentively today and for the vision for the women of the next generation shown in the Chamber. As I said, I feel very strongly that mothers should not have to work and breastfeed. I maintain my position that, if they are breastfeeding for six months, they are entitled to be at home. Regarding the Houses of the Oireachtas Commission, given the Minister's position as Minister of State at the Department of Justice, Equality and Law Reform, perhaps it would be a good idea to put crèche facilities for the ladies of the House on the agenda – both the current young women who are going to have babies and new women coming in. Another important point relates to the hours the Seanad and Dáil sit in the evening. The night-time hours of this House are not family friendly. Therefore, the House should be open early in the morning. I park my car outside at 7.30 a.m. but I have to leave the car park and have coffee in Buswell's. I am then not able to get back in until 8.30 a.m. It might suit mothers better to be on the go early in the morning.

I asked why participation in breastfeeding by Irish women is the lowest in the EU according to La Lèche League figures. I have a good idea of the reason that is the case but this is too public an arena in which to state it. I was unable to be in the House on the last occasion this issue was discussed because I had to attend a committee. Like Senator Tuffy, I am here as a woman, rather than as a spokesperson on the issue, and because the role of breastfeeding is critical to the development of children. I am not inferring that, if a mother does not breastfeed, she is any less of a mother but it is natural and better for the baby. There is an ignorance which, as Senator Terry said, we should address, particularly if the Department of Health and Children is pushing powdered milk on mothers.

Breast is best.

I thank the Minister of State and his officials for listening to us. I congratulate Senator Cox on her impressive attention to the detail of the amendments to the Bill. I also thank Senators Tuffy, Terry and Henry for an excellent evening. I have been waiting a long time to say what I did.

I thank the Minister of State and welcome the Bill. It is an important progression of rights in this area, although more needs to be done. I agree with Senator White's comments, but this issue is important to men too.

Hear, hear.

I am here in my capacity as justice spokesperson, but I am interested in the issue as a woman and as a person. I would like us to develop longer maternity leave but we also need to examine other European countries where there is paternity leave. This would mean the leave could be interchangeable between parents, which would be helpful to many Oireachtas and local authority members. In this case, if women members did not want to take the leave, perhaps fathers could do so and it could work both ways and in different ways for different families. The recent census figures indicated that an increasing number of men are staying at home to be the home-makers. That is the way in which society is moving and it is a fact we must recognise in legislation.

I agree that the Civil Service should show the way not just in legislation, but in terms of the facilities it provides. In many ways it has done so. The public service took the lead on job-sharing and so on but more can be done, particularly in Leinster House. It is not just woman unfriendly, but family unfriendly and father unfriendly in the way it is organised and we need to examine it.

I thank the Minister of State for the changes he made which followed on issues we raised in our amendments – for example, the allocation of six months as opposed to four months for breastfeeding breaks.

Acting Chairman

The Chair is happy to have been able to accommodate this addendum to the Committee Stage debate on the Bill.

I thank everyone who contributed. I take all the points which have been made about the fact that Leinster House is not exactly a shining beacon to which people can look in terms of facilities for female Members. However, the new commission which has been established to run the affairs of the House will be bound by the terms of this legislation.

I will communicate the suggestions made in this debate to the people who will be involved in the commission. We have had an excellent debate on this Bill on Second and Committee Stages in the Seanad. As a result of our interchange and deliberations, we leave the Seanad with a better Bill.

Report Stage ordered for Tuesday, 8 December 2003.

Acting Chairman

According to the Order of Business, this business was due to continue until 7 p.m. Therefore, can the Leader offer guidance as to how to proceed?

The Minister of State who is taking the Adjournment debate will be here at 5.30 p.m. Therefore, we will suspend for 15 minutes.

Sitting suspended at 5.15 p.m. and resumed at 5.30 p.m.