Parental Leave (Amendment) Bill 2004: Committee Stage.

Section 1 agreed to.
SECTION 2.

Amendments Nos. 1 to 4, inclusive, are out of order.

I understand amendments can be ruled out of order if they involve a charge on the State.

That is correct.

My proposal does not necessarily incur a cost to the State. It could be a cost to the private sector. I do not want to challenge the Chair but I would like an explanation.

Senator O'Toole has been a Member of this House long enough to know he cannot question the Chair's ruling on this matter.

I have not questioned the Chair's ruling yet. I asked for an explanation. The amendment would be out of order if it involved a cost to the Exchequer but not all of these amendments do so.

In accordance with Standing Order 38, the amendment is out of order as it involves a potential charge on the Exchequer. Amendments Nos. 1 to 4, inclusive, are out of order for that reason. They have been ruled out of order in accordance with long-standing precedent. I trust that clarifies the matter. It is in order for Senator O'Toole and the other Senators to raise particular points as we discuss section 2.

Amendments Nos. 1 to 4, inclusive, not moved.

I move amendment No. 5:

In page 4, line 8, to delete "16 years" and substitute "18 years".

Senator Kett drew this matter to my attention. The Senator has worked in the Central Remedial Clinic for 20 years dealing with handicapped children. I have visited the organisation and it does tremendous work for disabled children. I respect Senator Kett's opinion on this issue and if the Minister cannot agree today to change the age from 16 years to 18 years, I hope we can go through the proper procedures in the future to change it.

I raised this matter because the age limit is 16 years but for children with a disability there is a transition period between the age of 16 and 18. That comes about in two ways. Many special school programmes now incorporate the junior certificate and many of these children, as we call them, come out of the junior certificate level at 16 years of age into an immediate transitional period where parents are caught up in meetings to try to locate a placement for them, whether that be a skills-based programme or a programme involving some other form of activity. I know from experience that there are many meetings at that time which both mother and father are required to attend.

Another issue is that as handicapped children mature, the age between 16 and 18 can often be a time when surgery may be required as bones get bigger or whatever. Surgery is not involved in all cases but it is something that could come up for consideration.

In addition, in respect of disabled children in particular, will the Minister of State consider, and I realise his hands may be tied on this issue, extending the period of time off from 14 to 20 weeks? That is not something that would be abused in any way but it is worth consideration. If those two issues could be considered, it would be worthwhile.

I support Senator White's amendment, and Senator Kett put the case very well also. The situation for people with disabled children can be very serious and this proposal could make a great difference at a time when the child may have a serious problem that has to be dealt with.

The tone and content of the amendment is significant and would lessen the burden of care on parents of disabled children. I welcome the fact that Senator Kett has entered the debate because he has vast experience on the matter. I am aware, from my time in labour affairs which would have handled these issues, that the consultative process involving IBEC, ICTU, the community pillar and others has laboured long and hard to reconcile these points of view. Obviously, the reconciliation is often not to everybody's liking because each has had to give way to some degree to accommodate the other side. Could ICTU, IBEC and all the other pillars who are involved in the process — our lives are ruled mainly by partnership — be asked for their views on this issue? Is there any way those views could be accommodated?

Before speaking on Senator White's amendment I would like to advise the House that it is intended to propose a Government amendment on Report Stage to section 2 of the Bill at page 4, line 3. An unintentional anomaly has just come to light in the case of the upper age limit for adopted children and this needs to be corrected.

As regards Senator White's amendment, section 2(2)(c) of the Bill implements the commitment made in Sustaining Progress and the recommendation of the parental leave working group to increase the age limit to 16 years in the case of a child with a disability. The working group’s recommendation is linked to the arrangements in place in respect of domiciliary care allowance. The latter is a monthly allowance paid to parents — it is administered by the health service — in respect of certain disabled children up until their sixteenth birthdays. The increase will facilitate working parents of children with disability who may need greater flexibility to take time off work for a longer period of their child’s life.

While I thank Senator White for tabling the amendment, which has some merit, I cannot accept it as it goes beyond the consensus reached by the social partners in the context of Sustaining Progress and the partnership agreement. It would be unfair for the Government to unilaterally decide to vary one element of a package of agreed mechanisms and amendments which were negotiated in good faith and which involved a degree of compromise on all sides. It would not be acceptable for one party to a multi-party agreement to subsequently alter an agreed commitment reached after negotiation. To do this would damage the social partnership process to the detriment of making further progress in future partnership negotiations. However, I am prepared to request IBEC and ICTU to consider this proposal and to be guided by their findings.

There are many aspects of the legislation I would like to change. Senator O'Toole was one of the architects of social partnership, which has served the country well. I accept that it often inhibits the Oireachtas in terms of making changes which certain Senators or Deputies might wish to make. Ireland is the envy of Europe because responsible union leaders here have helped, often in difficult circumstances, bring about great change for their members. Employers have also been prepared to compromise. Consequently, it is extremely important that we should not alter anything agreed in prolonged negotiations without referring back to the bodies concerned and that is what I propose to do.

Amendment, by leave, withdrawn.
Question proposed: "That section 2 stand part of the Bill."

I welcome the Minister of State's comments in favour of social partnership and I congratulate him on getting the timing exactly right. However, I wish to highlight one matter. Whereas the agreed positions of social partners should always be implemented, there are many precedents where agreement was not reached and the Government took action. On some occasions that action favoured the unions, while on others it favoured employers. Unless somebody has registered their disagreement in respect of an issue, the Minister of State would not be going against an agreed position.

I will check the matter out.

IBEC is listened to at times when we wish that would not be the case.

I am glad to note that those things agreed by the social partners will be implemented by the Minister of State. He will realise that a later amendment tabled in my name deals with precisely that matter in respect of the same sex issue. I presume I can now infer that said amendment will be accepted by the Minister of State or that he will introduce an amendment with a new form of words to achieve precisely what I am seeking to achieve. I have chapter and verse on where that was agreed by the social partners, advising the Government. I presume the Minister of State will carry forward his logic so that at least one of our amendments will be accepted. He does not look too happy, so I hope I interpreted what he said correctly.

Always act logically.

We will wait and see what happens.

On the section, we discussed this matter when the initial legislation was introduced. The main issue is where Ireland, as a country, is going in terms of what to do with its wealth. Will the Minister of State indicate whether the socialist Taoiseach has considered this legislation? What is at issue here is a time during which parents — single or married and regardless of whether Kevin Myers likes them — must deal with particular costs and charges. These are the costs associated with maternity and the medicinal aspects — these could include hospital costs — attached thereto. There are also costs in respect of the purchase of cots, prams and clothes and those which arise in respect of child minding. There are further additional costs in connection with paying for a child care place in order to retain it during parental leave. These are, therefore, extra demands placed on parents during the period with which the section deals. What do we do? We fine these people further by ensuring that they are not paid their salaries during the period. These people, therefore, are obliged to take a double hit.

In the past the country could not afford to take action in respect of this matter but that is no longer the case. Senator White has been to the fore in making the case, time and again, in support of child minding supports, structures and needs and is aware of the point I am making. That is completely wrong and indefensible, particularly when EU countries such as Austria, Denmark, Finland, Germany, Italy, Luxembourg and others have made particular arrangements in respect of this matter. I wish to make it clear, and not mislead the House, that such arrangements do not, in all cases, include full pay. However, a payment of some description — whether from the employer or via a benefit of some description — is paid to people on parental leave in these countries. I do not wish to make a distinction at present because I want to discuss the general principle.

The position in Ireland is fundamentally wrong. In addition, in terms of our pro-family and child-centred Constitution, it is unacceptable. If we could not afford to do what I am asking because of a lack of resources, that would be fine. However, that is no longer the position. Ireland has a stronger economy than any of the countries to which I refer and to the UK, which introduced paid paternity leave in recent times. Our economy is outstripping theirs, so why is it not possible to invest some money in this area? How much would it cost to do what I seek? The birth rate is approximately 60,000 per year. How many people who have children take parental leave? How much would it cost to give them some form of payment?

There must be something that can be done for the people to whom I refer. Even if one parent of the 60,000 children born here each year availed of a payment of, for example, €500 or €1,000 provided by the State, the total cost would only amount to between €30 million or €60 million. I do not have the exact figure but Members are aware that the number of people who take parental leave is quite low. I concede that offering a payment would lead to an increase in that figure but we are only talking about €30 million or €40 million out of billions accrued from gross national product in this country. I cannot in all conscience accept that what is happening here is anything other than penny-pinching. There is no justification for not having some payment in respect of parental leave at present. I ask the Minister of State to reconsider the position and to not press the matter to a vote at this time. He has indicated his intention to introduce amendments on Report Stage and he should draft an amendment to allow payment to people on parental leave.

I support Senator O'Toole. I wish also to express my disappointment at our amendments being ruled out of order. However, I accept the ruling.

As our economy moves forward and we continue to encourage parents, particularly mothers, to re-enter the workforce, we must put in place structures to enable family life to survive. We must also ensure that every support is given to parents and their children. When we discussed this matter in recent days, most Members of the House agreed that this leave should not involve a loss of pay. By leaving it as it is, we are once again widening the gap between rich and poor. Those who can afford to take parental leave with loss of pay will take it. People on low incomes will not. How can they possibly afford to? People on low incomes are already struggling to survive. There is no way they can afford to give up their jobs and lose their pay. Therefore, a distinction is being made between those who can afford it and those who cannot. Those who cannot are among the most vulnerable in our society and once again we are hitting them. This section is flawed, I believe, for that reason. We should be ensuring equality when dealing with legislation. This is a kick in the teeth to equality in terms of dealing fairly with families.

For the reason outlined, I am opposed to this section. I will not call a vote today, but I will the next day if the Minister has not addressed this matter. While I respect the negotiations and recommendations of the advisory group, it is somewhat rich of the Minister to say we will stick rigidly to them. After all, he is the Minister and can make and take decisions he believes are in the best interests of all the people. That is what we are all here for, to work in the interests of everybody, not just one section of society. This is in the interest of one section of our society and works against another. It is wrong and we should not be party to it. I hope the Minister will think again, before Report Stage, and take a decision to correct this inequality.

I too hope the Minister will look again at this issue because it is going to be null and void for a large section of the population. Many people would subject themselves to poverty if they were to leave their employment to take up these added benefits. I must declare an interest in a particular group, namely single parents. I am the chairperson of One Family, formerly Cherish, which represents single parents. There is not just one type of single-parent family in the country. At present there are approximately 154,000 one-parent families in Ireland, based on the 2002 census. This represents some 12% of households and 11% of the population. A sizeable proportion of children are represented in this group. Almost half of those who head one-parent households are in employment. However, it will be impossible for them to take up the various leave arrangements.

While the loss of income in a two-parent family situation is bad enough, as Senators O'Toole and Terry have pointed out, it is totally out of the question in a one-parent situation. It is important to recognise this because figures have recently been bandied about on the terrible increase in the number of one parent families. While it is true that in the 1970s only 3,000 people were getting the unmarried mother's allowance, as it was called, some 15% of the 80,000 who currently receive allowances are fathers. Also included in the figure are prisoners' wives. Does anyone remember when prisoners' wives did not get anything while their spouses were in jail? I often wondered what these women were supposed to do. Were they supposed to become involved in crime to support themselves so that there would then be two parents in prison? I cannot remember when the support for prisoners' wives was introduced, but it is only a few decades ago. In addition, separated wives are in the same grouping as well as other groups who go to make up the figure of 80,000.

Good work has been done by the Department in identifying what is important to family well-being. The Department commissioned an interesting survey in 2003 which was undertaken by McKeown, Pratsche and Hasse. In their investigation at the Ceifin Centre in Shannon, they found there was no variation in the impact on children's well-being among the various family types studied, including one-parent families. The one issue that really mattered was the level of poverty within those families. We know that one-parent families, unfortunately, are more likely to run the risk of poverty. This is shown in European Union statistics which emphasise that 42% of one-parent families are more at risk of poverty in comparison to 23% of the population overall. I am quite sure we do not want to do anything which might in any way increase the risk of poverty even more in these families.

The reason these people will be taking time off from work is quite probably to deal with some problem or other and this will be an additional stress on families. I suggest that the Minister looks at this section again. It does not have to be a charge on the State. It can be negotiated with employers in pay deals, but I do not believe we can bring this in and argue that it will be useful when we know that for a large number of people it will be null and void. The Minister should look at this again because when legislation such as this is introduced, while it benefits individuals who may avail of the leave, the main benefit is for their children and for society in general.

Hear, hear.

It must be said that this Bill is an improvement on its predecessor. I am not one of those who argues for all or nothing. This is an improvement on what preceded it and it must be conceded that it is better than nothing.

My main concern is with the approach, while agreeing that we have to introduce paid parental leave. The main group discriminated against by not having a paid parental leave system is fathers. I do not know whether there are statistics available or if any surveys have been done as regards how many men take parental leave. The way society is organised at present militates against them doing that. I know of many fathers, including those on middle incomes, who say they cannot afford to take unpaid parental leave. Women, at least, get paid maternity leave. It is not sufficient, but at least they are entitled to it. However, fathers have limited entitlements and this is an area that must be improved. That is as much as I wish to say on this subject.

On reading section 2(8)(d), I was not sure what was meant by “the relevant Act”. The language is somewhat unclear, so perhaps the Minister of State might explain what is meant by “this Act as amended by the relevant Act”. Perhaps it was explained on Second Stage, but I wonder whether it could be better worded.

The issue of paid parental leave was raised by Senator O'Toole. I gave a comprehensive answer to this question on Second Stage. As parents, we would all agree that paid parental leave would be very desirable. I am sure we will reach a situation in this country where paid parental leave will exist. We should reflect on the combination of supports we have in this country. If the Senator wishes to make comparisons with Europe, then I am very happy to do so. The reality is that the total cost to the social insurance fund and to the Exchequer for paid parental leave in 2001 would have been over €200 million. That is a considerable amount of money. I am sure the social partners will agree to the desirability of paid parental leave in the future. We can look at the European social model, which Senator O'Toole has suggested we emulate, yet there are major problems for the French, German and Austrian Governments in trying to pay for the level of social contributions that exist in those countries. They are all looking to Ireland to see how we have had so much success with our economic and social model. While we would all wish to see increased payment for parental leave, a balance must be struck with the cost to the economy. I am sure the Senator will be aware of that more than anyone else. In principle, I do not have any difficulty with paid parental leave, but that is a matter for negotiation with the social partners as part of our economic and fiscal policy.

The Senator and I can have a pint tonight and talk about this further. As the House is aware, I have great regard for Senator O'Toole. However, I often think it would great to see him in a ministerial position where he has to make choices——

I have a long record of making hard choices.

——as against all those lovely aspirations he so eloquently puts about. I cannot reconsider this. It is not possible for us to have paid parental leave under this legislation. It may well be possible under a partnership negotiation in the future, but not under this legislation.

I would like to explode a few myths about what the Minister has just said. I have a long record of taking unpopular decisions, selling them and sticking with them. If our Government took the same line with IBEC, we would have far fewer difficulties.

The Minister received one-sided advice on costs. It may well cost €200 million to give full pay for the full period of time if everyone took it. That represents three conditions.

That is not how I calculated it.

I will sit down and the Minister can stand up and tell us how he made the calculations. If he made it any other way, then we do not know what he is doing. There is no other calculation to be made. It is either more or less than that amount. The number of births is multiplied by the number of parents by the number of weeks by the cost per week. There is no other way to make the calculation. These are the things to be taken into consideration. The Minister claims that it works out at €200 million and I will not argue with that figure. However, the arrangement in Italy is that people get 50% of pay, which would drop the figure down to €100 million. If people were to get a quarter of pay, the figure would drop to €50 million. The problem with IBEC is that its members are too tight to pay out of their own pockets. People on parental leave, having paid for hospital and medical fees and so on, could benefit from this. Senator Henry listed a number of benefits that were available. Why is this less important? Can we not afford to put €50 million to €100 million of next year's budget into this? Is there anything better than having a parent available to a child during the period when they are bonding?

If the Minister does not put enough into parental leave, but does put something into it, then I will stand up and defend him. I will defend him before the people on my side of the House who will not be happy with it. Is that not a fair deal for the Minister? It is time to step up to the mark on this one and put a few shillings into it. We have the money. One of the differences between Ireland and the rest of Europe has been the development of social partnership. The trade union movement that is asking the Minister to ensure that parents on parental leave get a payment for it is the same movement which has taken hard decisions to ensure the modernisation of Irish work practices. Over the past 15 years, there is no other workforce in Europe that comes close to the increase in productivity of Irish workers. There has only been one year when we did not have the greatest productivity increase per worker of any country in Europe. That is something that cannot be done in France, Germany or in Italy. We can do that. We have created the wealth and now we should share it out. We should give it to the young people who have just been born and who will pay our pensions in 50 years time, although it will not be my problem at that stage.

I remind Senators that most people have already contributed on this section. We have given 30 minutes to it already.

I thank the Acting Chairman for the lecture.

I ask Senators to bear that in mind.

This is the nub of the legislation as it is the most important section. I do not like to waste anyone's time, but I take the equality issue very seriously. The Minister made no response to the points I made. Does the Minister believe he is treating all parents equally by introducing this legislation? Is a child of a parent who can afford to take this parental leave with loss of pay equal to the child of a parent who cannot afford to do so? I want the Minister to address that. Will he stand over the unequal treatment of two children? This question deserves an answer because it concerns inequality.

This is a very interesting discussion and we are in the Seanad to raise these issues and develop policies on them. If we cannot achieve it today, we will try to get the ball over the line in the future. I totally support what Senator O'Toole said, but the reason we have such improved productivity is that we did not have the traditional industries that existed in France and Germany. We have successful high-tech capital industries where productivity is very high. That has given us the unnaturally high level we have in contrast to aging industries in Germany and France where industrial relations are very bureaucratic. Thanks to people like Senator O'Toole, we have very sophisticated, modern industrial relations based on the partnership model. This is a result of consensus between management and unions and the modern nature of much of our industry.

As many Members know, I do my level best to champion child care provision. It is an issue on which everyone in the Chamber agrees with me. I agree with Senator O'Toole that ideally a child should have its parent at home with it in the first year. While we all know the reasons people must go out to work, it is a cliche to say "exclusive social inclusion". While we do not want to exclude anybody, the failure to provide a contribution means only 20% of parents take up parental leave. The irony is that the people who cannot afford to do so are the ones who most need help.

I research the issue of child care constantly. I was walking along the Grand Canal to a meeting at the Department of Community, Rural and Gaeltacht Affairs two weeks ago when I saw a man wheeling a baby at 11 a.m. I stopped him to ask if he was bringing the child to a nursery as I wanted to obtain as much information as I could which did not come from books. He said he was Swedish and that his wife was working at Trinity College for four months. He had parental leave from Sweden which entitled him to 70% of his salary. He said that there were very high taxes in his country and I acknowledged that we paid less tax than people in any other country in the northern hemisphere.

Hear, hear.

I spoke to parents at a child care centre this morning. One woman made the fascinating point which I had not thought of that it is in men's DNA to think it is women's responsibility to mind children. I looked at her and knew it was a profound statement. She was right. While things are changing and men are taking more responsibility, they are all born thinking that way.

The Senator might vote with us.

I will not. I am a total Fianna Fáil person and will fully support the Minister of State. I am speaking to ensure we make progress in future. Senator O'Toole has distracted me.

He is always at it.

Take your time, Senator.

As Senator Tuffy said, we have made significant progress. I have said here many times that I had to give up my job in the Civil Service when I married. I understand what discrimination is about. My boss at the Board of Works tried to keep me on but was not permitted to do so. It was an EU directive which ensured women could continue to work after they married. People in Ireland who have not suffered such discrimination do not understand how it felt to have to give up one's job. One must have that experience to know how awful it was.

I wish to correct the record by noting that I support the Minister of State completely. His sentiments are the same as ours. He has undertaken to revert to the social partners and stakeholders in Sustaining Progress to establish how to proceed further. We will achieve some form of payment, which does not have to be everything. It is especially important for people on lower incomes who cannot afford to take time off.

We can hope Senator O'Toole wins the argument next time.

I am always delighted when Senator White refers to the fact that she had to leave her job when she married as I did too. I am quite relieved Senator John Paul Phelan is not here as the last time I made the point, he stood up to say his mother had to do so also. It demonstrated that there has been a change in the age profile in the Seanad.

We are discriminating against people who cannot afford to leave their jobs. We will have to provide them with some form of allowance while they are out of work if they are in one-parent families. Of single parents in Ireland, 40% are widowed and 25% are separated or divorced. In both scenarios the children involved have already had a serious problem with which to deal. I suggest that any parent who is doing his or her utmost to maintain the standard of living the family previously enjoyed will be very inhibited from taking any of the leave for which we are providing today.

I am happy to support this important amendment. I am intrigued by Senator White's version of full support for the Minister. It was very interesting that while her argument supported comments on this side of the House, she intends to vote in support of the Minister of State. I hope attention is paid to her words as she made the very effective point that we will in fact disbar people from availing of parental leave if we do not provide some financial assistance. We are out of step with many other European countries in this context.

The issue of discrimination, which exists in many areas, was raised. I have tabled an amendment which Senator O'Toole will have to move on my behalf. I apologise to the Chair and the Minister of State but I am involved in briefings on another Bill and cannot be in two places at once. I support strongly what has been said on this side of the House. I welcome the fact that Senator White accepts our arguments and believes she can persuade the Minister of the justice of the case. While that is very valuable, I rather wish she would vote on this side. I suppose it is too much to ask.

She might.

It is wishful thinking.

It is an important point of principle that the very people who most require parental leave will be disbarred from availing of it. I do not believe the saving to the Exchequer will be enormous considering the level of wastage in the public service. An obvious example is the €50 million it will cost to store electronic voting machines, which are mere junk. Can the Minister of State enlighten the House by telling us how much he estimates will be saved by the little bit of cheese paring proposed? It would be valuable to know.

As I said, at 2001 prices the cost of parental leave would exceed €200 million. The sums involved would be much higher now. The calculation is based on the basis of payment and level of take up of maternity leave.

Senator Norris said we are out of step with certain Europe countries, but the evidence is that they have been out of step with us in the past couple of years. Senators Norris, O'Toole and Terry will be aware of the significant controversies which have occurred in France and Germany as a result of attempts to change social models and reduce burdens on economies which are failing to compete globally. The level of take up of leave in some of those countries is quite low because the level of payment for parental leave is not attractive enough. While the levels of parental leave may be quite high in Sweden and Italy, that is not the case everywhere.

Senator O'Toole challenged me to provide €100 million at the next budget. While I would welcome paid parental leave as a parent, if I wanted to ensure equality I would use that €100 million to support the unemployed mothers of working class children. They cannot leave the home to work due to the high cost of child care. I would make a payment to mothers in the Traveller community whom we are endeavouring to help into the workforce and whose children we are encouraging to stay in school. I do not even profess to be a socialist.

One cannot be in Fianna Fáil without being a socialist. If the Taoiseach hears the Minister of State saying he is not a socialist, he will be out of a job.

I would make choices, as the Senator should be prepared to do in this debate. I favour paying more money to parents in working class areas and in parts of rural Ireland who cannot go to work because of difficulties relating to child care and the poverty trap in which they find themselves. It would be better to do so than to make parental leave available to the Michael Smurfits of this country. It is a matter of choice and for future negotiation between the social partners.

Parental leave will be introduced and I agree with Senator O'Toole that the Exchequer can afford it. Every time I attend a European Council meeting, my ministerial colleagues look on with awe at our economic miracle. The Senator has been a contributor in no small way to that but our economic model should not be changed easily. Change should only be made through the partnership model, which has served us well through the years.

Senator Terry asked about the meaning of "the relevant Act" in section 2(8)(c). It is defined in section 2(9) as the Parental Leave Act 2004, which will be replaced by this legislation when it is enacted.

It is the Minister of State's own business whether he is a socialist. That is a private matter between him and his party leader.

I do not profess to be a socialist.

I refer to the reason France, Germany and Italy have trouble in this area. It is not a coincidence that Ireland has the best strike record in Europe. In other words, there are fewer strikes than in any other European country. There was no strike in the public service over the past two years, which is the prize we aimed for in the benchmarking deal. It was a superb strategic and tactical decision.

The Government, business interests, the trade union movement and the community and voluntary pillar have achieved structures that could not be achieved elsewhere in Europe. I could list example after example. For example, the primary and post-primary curricula were changed in Ireland over the past ten years without opposition from the teacher unions. Every education Minister in Europe who sought similar changes could not achieve them.

I could list every Department with which the unions sat down. I refer to the recent problems in the health service regarding the establishment of the Health Service Executive. That was an extraordinarily difficult changeover to effect but it was negotiated. Governments in Europe are failing to do this. We have done it and we are entitled to a pay off. People who wish to spend time with their children should be paid. The Minister of State and I can argue about where the money should be paid but I cannot accept his logic about the difficulties created for parents because they cannot get child minding. His Government has refused to make child care places available. Senator White spoke passionately about this issue.

A total of €800 million has been invested over the past five years.

The Minister of State said the Government could not afford to make places available. He also referred to Michael Smurfit but I do not know whether he would avail of State support on this issue, although I could design a structure which would prevent him from doing so if the Minister of State let me at it. He need not worry about it. I would exclude Tony O'Reilly and JP McManus through residency rules and so on. In other words, I would be practical.

The Senator has not succeeded yet.

Investment should be made in this regard to look after people. The Minister of State's party should show a little generosity and adopt a little socialist thinking.

The Minister of State said a small payment to those on parental leave discouraged take up in Europe. That would imply no payment would be more discouraging. If the Government wants people to take up parental leave, the greater the payment the better. It is less likely that people will avail of the option if there is no payment.

Ministers usually respond on legislation such as this that it is subject to negotiation and a balance must be struck and so on. However, this legislation should lead the way. Employers will not concede on this issue unless legislation forces them to do so. A stage will be reached where the Minister of State will have to move ahead of the employers and tell them this has to be done not only for the benefit of the economy, but also for the benefit of individuals and society.

I have read the definition of "the relevant Act" but the wording is not clear. Is it the correct reference?

The evidence is people are taking unpaid parental leave.

They have a big choice.

There has been a considerable increase in the numbers availing of the term time provision during the summer and so on.

It is not being taken by those on low incomes.

It is incorrect to state unpaid parental leave is a major disadvantage. This legislation is a step forward. It was negotiated with the social partners and I do not want it to be seen in the completely negative light it is being seen in the House. We should dwell on its positive aspects. The legislation meets a demand and many people are availing of parental leave. While we would all like people to be paid for parental leave, agreements have been reached and we must adhere to them. While acknowledging the cogent case made by several Senators, this is good legislation and the lack of pay while on parental leave is not the most serious disadvantage.

Question put.
The Committee divided: Tá, 32; Níl, 20.

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Quinn, Feargal.
  • Ross, Shane.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McCarthy, Michael.
  • McHugh, Joe.
  • Norris, David.
  • O’Meara, Kathleen.
  • O’Toole, Joe.
  • Phelan, John.
  • Ryan, Brendan.
  • Terry, Sheila.
  • Tuffy, Joanna.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Henry and O’Toole.
Question declared carried.
NEW SECTIONS.

Amendment No. 6 has been ruled out of order as it involves a potential charge on the Exchequer.

I do not see how this amendment would involve any charge. Its purpose is to allow either parent to take the leave so no charge would arise.

The Senator cannot question the ruling.

It is beyond me how a charge could be involved in this case. When a parent is entitled to parental leave, either parent should be able to take it.

If the Senator wishes there is a facility to discuss the matter in the Cathaoirleach's office at a later stage.

Amendment No. 6 not moved.

Amendment No. 7 is in the name of Senator O'Toole. Amendment No. 9 is related and they will be discussed together by agreement.

I move amendment No. 7:

In page 6, before section 3, to insert the following new section:

"7.—Section 7 (1) of the Principal Act is amended by the addition of the following paragraph after paragraph (b):

(c) A qualifying employee may apply to their employer for more favourable arrangements. An application under this section must—

(i) state that it is such an application,

(ii) specify the change applied for and the date on which it is proposed the change should become effective,

An application under this section must be made before the fourteenth day on which the planned leave will begin. An employer who receives such a request may only refuse where he can demonstrate a consequential negative impact on the business.".

I agree with the Minister that the legislation contains many progressive aspects. I accept that point and despite the arguments I put forward on the previous section I appreciate the inputs and the progress that have been made in this area. However, the current wording is restrictive.

I will not make a long speech on this matter but a different arrangement could be found that would better suit. Instead of parents being obliged to take a set period of leave, perhaps it could be taken in stages over a longer period in smaller sections or in some other way that would suit. People are entitled to seek parental leave but at present it appears to be restricted and we cannot get any movement in terms of the way the Bill is drafted. Perhaps the Minister of State will tell me that is not the case.

If a proposed term of leave should present a problem for an employer he or she could say that it would have a negative impact on his or her business which would be understandable. We are at pains to ensure there would not be any cost implications or negative impacts on business. However, people should at least be able to seek more flexible arrangements and this should form part of the Bill. If the Minister of State is not happy with my wording he can revisit the matter on Report Stage. This is a straightforward attempt to introduce some flexibility into the system.

To hark back to a point made by the Minister of State on the previous section, one of the great gains within the Irish working community has been the element of flexibility that has been introduced to it over the past 20 years and this is just more of the same. We are saying, "Let us do this where the employer and employee agree that it can be done and there is no cost involved". We should take away the current restriction on this approach. I ask that the Minister of State look favourably on this proposal.

I hope I understand the amendment correctly. It was my understanding from the debate the other day that parents would be allowed take shorter periods of parental leave, be it for one day a week, one day a month or even part of a day. However, that is not reflected in the legislation. Senator O'Toole is attempting to make parental leave flexible. In response to a question, the Minister of State replied the other day that parental leave is flexible provided that it is taken with the agreement of the employer. However, the legislation does not reflect that short periods of leave can be taken and I seek clarification on the matter.

Amendment No. 9 raises a similar point to that raised by Senator O'Toole. The point is that there is space for flexibility as it stands, but it is very much dependent on the employer being open to it. This amendment, which is along the lines of what was proposed by ICTU, proposes to give the employee the right to request the flexibility and underpins that right. It recognises the need for the two sides to come together on the issue but, as it stands, ICTU has given the example of an old-fashioned workplace which does not allow requests for flexibility to be made and does not consider such requests because of their culture, background and lack of understanding. We are placing the onus on the employer to explain why it would not allow the flexibility. It is a much more positive way of approaching the issue in the Bill than as currently drafted.

We have examined this amendment carefully and tried to establish exactly what Senator O'Toole has in mind. Now that he has spoken about it, I feel even more strongly that to amend the Bill as proposed would not be in its interest.

Section 7(1)(b) already offers employers and employees a great deal of flexibility in how parental leave may be taken. This flexibility is enhanced by section 3(a)(ii) of the Bill. An employee already has a legal basis in section 7(1)(b) to apply to take leave in a format other than a six or 14 week block. The spirit of this subsection is a co-operative one between the employer and the employee so that, where it suits both parties, they may agree together on the parental leave being taken in whatever fashion they jointly decide.

To impose a statutory obligation on employers to expressly demonstrate a business case or a consequential negative impact to justify refusing an application for parental leave in a broken format would be futile and would merely add to the unnecessary administrative burden on the employer. The reality is that many employers and their employees already have a very flexible parental leave scheme which has been negotiated and is in place. Those that do not are unlikely to be more amenable to flexibility because they are obliged to receive and respond in a prescribed way to requests for greater flexibility.

In addition, amendment No. 7 is in conflict with the six weeks' advance notification requirements provided for in section 8 of the 1998 Act. My big worry is that this amendment would create unnecessary bureaucracy. If I really thought there was benefit to be obtained from it, I would consider it. However, in view of the cogent case in terms of the existing flexibility, I am not prepared to accept the amendment.

I understand the points the Minister of State has made and can see from where they are coming. I also recognise the improvements in the Bill in regard to the flexibility on the six and 14 weeks. However, the issue is about flexibility. A couple who have just had a baby face costs for cots and prams as well as childminding and crèche facilities, all of which must still be paid during a period of parental leave since crèche places must be maintained. If parents could take leave in smaller sections, they would not have to do without income for such a long period. That is the only issue.

Nonetheless, I can see the arguments as to how that might not work in certain employments. For this reason, the amendment provides that it is possible where it is acceptable to the employer. All that is involved is more flexibility on an agreed basis at local workplace level with no cost. Will the Minister of State reconsider accepting the amendment on Report Stage? I will not push the amendment to a vote. If it does not suit all sides it would be wrong to force it, but I am trying to reach a position at which a certain provision would suit all sides. For example, an employee could take a shorter period of time with his or her child spread over a number of periods.

The amendment does more than just require the employer to respond in a prescribed way. It places the onus on the employer to have a reason that he or she will not be flexible. In the current situation, it is very much dependent on the employer being flexible. The amendment seeks to require the employer to be flexible unless it is not possible for him or her to be so because of the nature of the business, for example. This type of provision is intended to deal with people who do not have a culture of allowing such leave by trying to force them to operate more flexibly, unless it is not genuinely in their interests as a business.

I do not see why we cannot introduce this type of provision since we have such provisions in other legislation, whereby one can put it up to the employer to explain his or her position. The Minister of State suggested that they would go through the motions of explaining why it is not possible, but they must have a genuine reason that it is not possible.

I support these amendments. The flexibility could easily be needed, for example, if people were trying to plan ahead regarding various doctors' visits and so on. They are not designed to make life more difficult for businesses. I would have thought it was designed so that better planning could be engaged in regarding the person going back to work.

I do not see the need for this provision because most employers by their very nature would be very flexible in such a situation. If I was an employer, I would rather see someone take leave for two weeks rather than eight, particularly if I had to employ another person and continue to pay both while the employee was on leave. Much of this places an onus on the employer to give a reason he or she should not allow the person to go. However, there is no onus on the employee to back up the reason they want the leave. It could very well be that an employee would use this provision to go off on a boozy weekend, although I am not suggesting he or she would do so.

That is a fair point. Let us put that into the Bill.

There is reasonable flexibility on both sides without having to go down this road. Most employers would in genuine terms rather see an employee take two rather than eight weeks. I do not think it would create a problem. If it did down the road, we could return and amend the provision if there is an argument thereafter.

Nothing I have heard from Senators Tuffy or O'Toole convinces me that a statutory obligation will do anything for flexibility. Good flexibility means good communication, common sense and a spirit of compromise. Statutory obligation imposes the exact opposite. In an era in which all the progressive companies in this country are being proactive on work-family life balance, it is unnecessary for us to legislate for this provision. If I honestly thought there was any advantage, I would consider the matter and I am prepared to consider it again, but I do not see the benefit in it. A proactive approach to the need to be flexible and respond to the demands of their employees is being taken by public sector employers. All the successful companies in the private sector will also be very positive about work-family life balance. If some companies are still stuck in the old mould, they will soon feel the impact on their bottom line. I do not want Senator O'Toole to get the impression that I am prepared to consider the matter again. I will consider it in extenuating circumstances where a statutory obligation could make a difference to flexibility. However, it could have the opposite effect; employers having to demonstrate the consequential negative impact could be a recipe for conflict. One would then be into dispute resolution and rights commissioners and so on in such a scenario.

Amendment, by leave, withdrawn.
SECTION 3.

I move amendment No. 8:

In page 6, to delete lines 14 to 26.

This amendment makes similar provisions as the previous one. It proposes to delete section 7(b) of the principal Act. In amending section1(a), the Minister of State is prescribing inflexibility. However, section 1(b) allows for the employer and the employee concerned to agree a shorter period. It puts the ball back in the employer’s court. It does not give enough power to the employee to request flexibility and to feel he or she has the law behind them.

I cannot accept this amendment as it proposes to remove the provision for a ten week interval between the blocks of parental leave. This is contrary to the agreement reached by the parental leave working group in the context of the recommendation that parental leave may be taken in separate blocks, each consisting of a minimum of six continuous weeks. The group considered that to balance the needs of employers and employees, there should be a statutory right to take parental leave in some format, other than a continuous block. The group agreed that the legislation should set parameters on the statutory entitlements on the break-up of parental leave, such as the ten week interval, while maintaining greater flexibility where the employer and the employee can agree. The recommendation of the working group represents a compromise reached between the employer and employee. It strikes a balance between offering the employee greater flexibility in availing of his or her parental leave entitlement, while recognising the business needs of the employer. The arrangement Senator Tuffy seeks already exists. Accepting this amendment would only negate it.

Amendment, by leave, withdrawn.
Question, "That section 3 stand part of the Bill", put and declared carried.
Amendment No. 9 not moved.
Sections 4 to 6, inclusive, agreed to.
NEW SECTIONS.

Amendment No. 10 is declared out of order as it involves a potential charge on the Exchequer.

Amendment No. 10 not moved.

I move amendment No. 11:

In page 9, before section 7, to insert the following new section:

"7.—Section 13(1) of the Principal Act is amended by the insertion after ‘elsewhere' of ‘or in the case of a child where requested by a school'."

This amendment provides for a regular occurrence of when a parent is sent for when his or her child has an accident at school. It is an absolute case of whereforce majeure applies. Unfortunately, I have come across situations where no flexibility was shown and individuals lost pay. I admit it is not a common experience but this is not an anti-employer amendment. The majority of managers ensure that in the case of an accident involving an employee’s child at school, everything possible to be helpful and supportive is done.

However, I am asking for the Minister of State to include this straightforward provision that does not create any problem for employers or employees. Any reasonable person will agree that it cannot be abused. If a school believes that, as a result of an accident, it is a matter of urgency that the parent attends immediately, it will not be abused. This simple amendment, if accepted, would reinforce what a good employer will do anyway and ensure that all employees are treated equally in this respect.

I support Senator O'Toole in this amendment. I am horrified that any employer could not see such situations as an emergency. The provision must also be considered in the context of proposed medical treatment. If a doctor is dealing with a minor, he or she must have parental consent for any required treatment. We do not want the situation to arise that since a parent was docked pay on one occasion, he or she refused to attend the school if his or her child was involved in another accident. This could result in difficult situations for all involved in dealing with the child.

I support this reasonable amendment that would benefit the legislation. I cannot imagine any employer not allowing a parent to attend a school if his or her child had been involved in an accident or fallen ill. However, in the event that an employer refused to allow the parent to attend, it would be better that the eventuality be covered.

I support this amendment. Amendment No. 10 in my name was similar. In both cases, one can argue a cost to the Exchequer would be involved. Amendment No. 10 sought to broaden those circumstances the provision covers. While it was more broadly worded than this amendment, it would have the same effect. Why was amendment No. 10 ruled out of order and not amendment No. 11?

I agree with Senator O'Toole's sentiments on this matter. Like Senator Terry I know of no employer with any semblance of decency who could refuse a parent time in such circumstances. While not wishing to sound pro-employer, an employee, however, could use this provision to get out of work.

The employee could say his or her child is in the school. The employer must have some proof that he or she is legitimately——

The school would phone.

That would be fine. However, an employee could come to an employer, as I have experienced, and say his or her child is sick in school and must be collected.

That is not critical.

It happens. If one is going to protect the employer——

One might look for parental leave and not have a child at all if one were being that crooked about it.

That is taking it to the extreme.

Section 13(1) of the Parental Leave Act of 1998 provides for leave with pay known asforce majeure leave in situations where for urgent family reasons, owing to an injury or an illness of a specified person, the immediate presence of the employee at the place where the person, whether at his or her home or elsewhere, is indispensable. This transposes clause 3(1) of the parental leave directive which provides that workers must be given the right to time off for such urgent family reasons in cases of sickness or accident.

Section 13(1) of the 1998 Act caters for a situation where a parent may be requested by a school to deal with an emergency situation relating to the illness or injury of the child while in school. The proposed amendment is unnecessary on the basis that provision is already made in the existing legislation to cater for such an emergency.

In the event of a child's illness, the parent is entitled to force majeure leave to go to whatever location the child is at, including a school. I appreciate the point the Senator is getting at, and I would agree with him in the context of his amendment, but given that it is covered already it is not necessary to accept it.

That is a fair point and I thank the Minister of State for clarifying it. I was not aware of that. I fully accept the point made and I am glad the Minister of State is not as resistant to change in this matter as Senator Kett. I hope people will not take advantage of this position. It is important to have the point on the record.

Amendment, by leave, withdrawn.

Amendments Nos. 12 to 14, inclusive, are out of order as they involve a potential charge on the Revenue.

Amendments Nos. 12 to 14, inclusive, not moved.

I move amendment No. 15:

In page 9, before section 7, to insert the following new section:

"7.—Section 13 of the Principal Act is amended by the addition of the following paragraph after subsection (2)(f):

(g) persons involved in a same sex relationship who act in the role of parent of the child.”.

Senator Norris and I have worked together on this and he asked me to propose this amendment in his name. I do not fully understand why the previous amendments are out of order but I understand they create new sections in the Bill. That does not matter. This is the point to which we all wanted to get in order to deal with this issue.

I listened carefully to what the Minister of State said at the end of Second Stage of the Bill. He said: "There is no doubt that there is a discrepancy in that heterosexual couples can avail offorce majeure leave to look after each other as well as parents, brothers and sisters for example while same sex couples cannot do so for each other.” The Minister of State went on to say that he would be recommending to his colleagues in Government a change in that area. He said a few other things but that is the gist of what he said on Second Stage.

We have discussed this issue to a significant extent in various formats and contexts over the past few years. Currently, Senator Norris is briefing people on his Private Members' Bill about civil registration in a response to the debate about how we recognise gay relationships in our society. As the Minister of State is well aware, the issue is not necessarily about sexual relationships but could relate to people who are simply in platonic relationships, for practical reasons, and all sorts of things arise out of this. I cannot imagine anyone being opposed to this measure.

I will return to the points made earlier by the Minister of State regarding the agreement by the social partners. It states in Sustaining Progress that the steps necessary to give effect to the issue offorce majeure leave will be addressed. There is an agreement among the social partners, an acceptance signed off by Government, so that we are now at the point of implementation.

Is the Minister of State open to the argument or do I need to make a more substantial one? The world has moved on. There is agreement that this is a humane approach to the issue. It is a practical, pragmatic issue rather than a moral one to allow people to live their lives in an orderly fashion without worry or fear, understanding that they will be treated as equally as possible. In the words of the Minister of State, a "discrepancy" exists, but it is more than that, being very close to discrimination. I could make a case that it is so if the people in question were not allowed to be covered by this legislation. I ask the Minister of State to accept the point and implement the agreement. That would be a significant move forward.

I wish to point out a typographical error in amendment No. 15 where the word "acts" should read "act".

I support the thrust of this amendment. We should be doing much more to adjust our legislation to make same sex couples more part of our society in general, or at least make our legislation more friendly towards those couples. I would welcome anything that could be done with the legislation before us to forward that.

The Minister of State may help me regarding the only question I have. Will same sex couples be covered under section 2(9), where someone is actingin loco parentis to the child? If one member of a same sex couple is the father or mother of the child, the partner could then be acting in loco parentis to that child. Will we be duplicating the point which Senator O’Toole wants to provide for? If the section in question does not adequately cover that matter, the amendment should be included in the legislation. I would like to hear the comments of the Minister of State.

I am glad that Senator O'Toole pointed out with regard to this issue that people did not need to be in a sexual relationship because the important aspect of the amendment is that it involves people acting in the role of parent or the child.

I support the amendment. The point of this type of legislation is to support every type of family regardless of its make-up. We must support families. That is good for society and for the individuals involved. I understand from the Irish Congress of Trade Unions that a commitment was made as part of Sustaining Progress that steps would be taken to give effect to the issue of force majeure leave in respect of same sex partners. The Minister might tell us why that is not dealt with in this Bill.

We have looked at this question since the debate on Second Stage in light of what was stated by Senators O'Toole and Norris. We found that the 1998 Act already entitles employees acting as parent to a child toforce majeure leave, irrespective of whether the employee is in a same-sex relationship. Section 13(2) specifies the ill or injured persons for whom an employee is entitled to force majeure leave. Section 13(2)(c) defines such an individual as “a person to whom the employee is in loco parentis”. That specification for the purpose of force majeure leave does not disqualify or otherwise prohibit an employee in a same-sex relationship from availing of such leave. Where one half of a couple is the natural parent of an ill or injured child, that parent’s entitlement to force majeure leave is secured by section 13(2)(a) of the 1998 Act, so that is already provided for, and Senator O’Toole’s amendment is superfluous.

There is one issue, however. Where a couple in a same sex relationship desireforce majeure leave to look after each other, I understand that it is not provided for. As I stated last time, I am prepared to recommend to the Government that a ministerial order be made under section 13(2) of the Parental Leave Act 1998 to provide for that. However, I emphasise that it is subject to approval by the Government. I am certainly well disposed towards it.

I thank the Minister for that outline. I was particularly interested in the last part. Section 13(2)(f) of the 1998 Act allows the Minister to specify other groups. Under that section, there would have to be an order or statutory instrument to allow force majeure leave to be available to same sex couples. Can the Minister confirm that he is prepared to recommend that to the Government? Is that his point?

As I said in my reply, that is already provided for——

——except in the case of a couple in a same sex relationship where one partner wishes to takeforce majeure leave to look after the other. This is already provided for to look after a parent or child. Where one partner needs to care for another, I am prepared to recommend that.

I certainly appreciate the points the Minister is making and his advisers' efforts to bring all this together. The importance of the outstanding issue that can be addressed under section 13(2)(f) is as follows. Let us take an elderly couple in a same sex relationship, sexual or otherwise, who have lived together for years. It may be a gay or lesbian relationship, or they may be sharing for pragmatic and platonic reasons. The type of situation that I envisaged in trying to have the Bill extended to cover same sex relationships was where one partner becomes ill and there is no one else to look after him or her. The Minister has been very progressive and open on the issue today by saying that he will seek to have section 13(2)(f) of the principal Act brought into play to introduce a new category.

I believe that on the last occasion when I spoke on this matter, I asked for that, but we could not get matters moving at that stage. I recognise that the decision must be made by the Government, and I accept that. However, if the Minister says he will act and that, if his recommendation is accepted,force majeure will be available to those in same sex relationships, that is a massive move forward and should be noted. It is an important statement regarding gay marriages, civil unions and their registration and it can deal with many of the issues about which people trying to get cover were concerned.

I appreciate the Minister's response, and I will take him at his word. If the Government turns him down, we will know where the target lies.

On the second part of Senator Terry's question, perhaps I might clarify that the legislation does not need to be amended, since the change can be made by ministerial order under section 13(2) of the Parental Leave Act 1998, and that is what I will be recommending. If the employee isin loco parentis, he or she already qualifies under the 1998 Act for force majeure leave for a child and under the Bill parental leave is available regardless of sexual orientation.

Amendment, by leave, withdrawn.

Amendment No. 16 is out of order, as it involves a potential charge on the Revenue.

Where is the charge?

The amendment has been ruled out of order.

If a child has a schoolyard accident, perhaps involving a broken limb, and a parent is called and goes to the school or has to be away for less than half a day, it should not count as a day's pay. This is a charge on the worker.

We cannot discuss the matter as the amendment is out of order.

That is a most unfair ruling.

Amendment No. 16 not moved.
Section 7 agreed to.
Sections 8 to 11, inclusive, agreed to.
Title agreed to.
Bill reported without amendments.

When is it proposed to take Report Stage?

Next Tuesday.

Report Stage ordered for Tuesday, 15 February 2005.
Sitting suspended at 4.25 p.m and resumed at 5 p.m.