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SELECT COMMITTEE ON ENTERPRISE AND SMALL BUSINESS debate -
Wednesday, 11 Apr 2001

Vol. 4 No. 5

Carer’s Leave Bill, 2000: Committee Stage.

I welcome the Minister of State and his officials, Mr. Bill Jestin, principal officer; Mr. Michael Pender, assistant principal; Ms Evelyn Daly and Ms Linda Finneran. This is important legislation. For the purpose of debate, amendments have been grouped. I hope to conclude Committee Stage today. It has been suggested that there should be a sos at approximately 3.30 p.m. Is that agreed? Agreed. After the sos we can review the position regarding the grouping of the amendments and the progress made. Given the manner in which some of the amendments have been grouped, it may be possible to deal with the other amendments more easily.

Section 1 agreed to.
SECTION 2.

I move amendment No. 1:

In page 6, line 18, after "including" to insert "a member of the Garda Síochána or the Defence Forces or".

I am pleased to return to a committee of which I was once a member. I am substituting for Deputy Rabbitte. I represented my party on Second Stage. I know the Minister of State, Deputy Tom Kitt, was unable to be present for the entire debate. We raised a number of issues recommended by the trade union movement, especially SIPTU. I welcome the fact that the Minister of State has come some way towards addressing the anomalies which many speakers pointed out on Second Stage.

Carers probably belong to the most heroic group in society. They have undertaken perhaps billions of pounds of unpaid work. I commend the progress made by the Minister for Social, Community and Family Affairs on the means tests for the carer's allowance. My party believes it should be abolished. While progress has been made in this regard, much remains to be done. There has been unhappiness that it has taken so long to reach this Stage of the Bill. The Department of Social, Community and Family Affairs is of the view that given the commitment of all parties to the legislation, the Department of Enterprise, Trade and Employment could have acted more speedily in introducing it.

The purpose of the amendment is to ensure that the broadest possible group of workers is covered by the legislation, including the public service. Families may find that they must look after young children, spouses or children with grave disabilities. Many of us have had to care for elderly parents. The legislation should not exclude members of the Garda Síochána and the Defence Forces, especially as they are included in other relevant legislation.

I welcome Deputy Broughan and Deputy Perry to the committee. We need to deal with this legislation as speedily as possible to ensure that a system is put in place. I am satisfied that as neither the Garda Síochána nor the Defence Forces are specifically excluded, they are covered by the provisions of the Bill. I do not, therefore, propose to accept this unnecessary amendment.

Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3.

Amendments Nos. 2 and 3 are related and both may be taken together by agreement.

I move amendment No. 2:

In page 7, line 24, after "Family Affairs" to insert ", any other Minister of the Government with whom, in his or her opinion, it is appropriate to consult".

Section 3(2) provides that before making any regulation under the Act, the Minister for Enterprise, Trade and Employment "shall consult with the Minister for Social, Community and Family Affairs and persons whom the Minister considers to be representative of employers and employees having regard to the regulations to be made.". This amendment would alter the subsection so that the Bill makes provision for the Minister, before making regulations under the Act, to consult, as appropriate, any other Minister.

It is not considered necessary or desirable for section 3(5) to provide a broad range of powers which would enable the Minister to exempt from or limit the application of all or any of their rights under the Bill in relation to employees in a specific sector or sectors who wish to take carer's leave. In view of this, the amendment deletes section 3(5) which allows for regulations to be made to exclude persons employed in a specified class or classes of activity from the application of specified provisions of the Bill. A further amendment to section 8(6) proposes to deal with the matter in a more appropriate manner.

The subsection was originally included to provide for a situation where, when the Bill is enacted, a Minister might wish to be able to negotiate with classes of workers, for example, teachers, about the form in which carer's leave might be taken. However, representations have been received that section 3(5) as drafted might be unduly restrictive. The amendment seeks to address that.

I welcome the amendment. The power as drafted was very wide ranging. I am also pleased to see the deletion of the reference to the Minister for Education and Science. The teaching profession should have the same rights as other professions.

Amendment agreed to.

I move amendment No. 3:

In page 7, lines 37 to 41, to delete subsection (5).

Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 and 5 agreed to.
SECTION 6.

I move amendment No. 4:

In page 8, between lines 30 and 31, to insert the following subsection:

"(2) Notwithstanding subsection (1), the Minister may by regulation allow two employees to share the caring role between them while remaining in the workforce on a part-time basis.”.

When the provision in this section was first proposed the period of time allowed was 52 weeks. Between Budget 2000 and early 2001, the Minister for Social, Community and Family Affairs agreed to an extension. We and our colleagues in the Fine Gael Party argued for an extension of up to 18 months. The purpose of the amendment is to insert a new subsection with a view to encouraging as many people as possible to join the workforce. Given the other measures to extend the size of the workforce, it should be possible for people to work part-time and share the caring role between them.

The various carers organisations, such as CROSSCARE and the Carers Association Limited, drew up the Carers' Charter, a key element of which was encouragement to all family members. As Deputies we often encounter family members who are stuck with the whole caring role. They end up looking after a parent or sibling. In one case I encountered a sister who has looked after her severely mentally handicapped brother throughout his life into middle age. The Carers' Charter specifically requests that as many family members as possible share the caring role. This amendment would allow for this in a practical way through the carer's benefit and effectively reach the broader aspects of caring while creating a more just environment to enable people fulfil their entitlement to carer's leave.

The issue of sharing care was made by a number of Deputies on Second Stage and I understand the rationale behind the amendment. It seeks to remove the pressure on carers who must give up work to look after relatives in trying and difficult times. The amendment mirrors a parallel carer's benefit scheme run by the Department of Social, Community and Family Affairs. Any change allowed to a person providing the care would cause administrative difficulties for the Department in terms of monitoring abuses and for employers generally.

Section 6(1)(d) provides that an employee who avails of carer's leave can engage in employment or self-employment in accordance with regulations made by the Minister for Social, Community and Family Affairs under section 82B(3) of Chapter 11A of Part II of the Social Welfare (Consolidation) Act, 1993. These regulations, which are already in place, allow such employees to work for up to ten hours per week. I do not believe I can go any further than this in the Bill.

In recent discussions, IBEC asked that this provision be clearly spelt out in the various information leaflets to be issued following enactment of the Bill. I am happy to do this. This arrangement provides a suitable compromise for both employees on carer's leave and for their employers who may wish to avail of a valued employee's service on a part-time basis while that employee is on carer's leave.

Will the guidelines include the procedures to be followed?

Yes. Clear and user friendly guidelines are needed.

Will they be distributed through the tax code to make them available to all?

They will be issued through the normal channels used for labour legislation.

I give credit to the Government for introducing this important legislation. The work carers must do needs a higher profile. This legislation breaks new ground in this country and in Europe. Carers may not be aware of the provisions of the Bill and information to this effect should be made available through the Government Information Services, the trade bodies and social welfare offices.

I note the Deputy's comments. I will use every option available to disseminate the information. IBEC, ICTU and the other channels referred to by the Deputy will be included.

I ask the Minister to reconsider the amendment for Report Stage. There is a need to further consider the issue of carers working part-time, especially when caring can be a 24 hour a day, seven day a week job.

The Minister of State has indicated he will consider the amendment further for Report Stage.

On that basis I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 8, between lines 30 and 31, to insert the following subsection:

"(2) Notwithstanding subsection (1), where an employee will not have completed one year’s continuous employment with his or her employer on the date of commencement of a period of carer’s leave, but has completed 3 months of such employment on the date of commencement of a period of such leave provided for by this subsection, the person shall, subject to this Act, be entitled to carer’s leave for a period of 5 weeks for each month of continuous employment that he or she has completed with the employer at the time of the commencement of the leave.”.

The trade union movement has expressed concern about the 12 month rule in relation to the period of employment. In this legislation the Minister of State has taken a different approach to the Parental Leave Act, 1998, which provides that where an employee has not completed a year's continuous employment with his or her employer but has completed three months of such employment, the employee is entitled to parental leave for a period of one week for each month of continuous employment completed with the employer. Many believe a similar provision should have been included in this legislation. This would ensure that where an employee does not have 12 months of continuous employment with an employer he or she would at least qualify for a portion of leave. Why was the provision in the Parental Leave Act not followed? A similar provision applies in the maternity leave legislation.

At present the economy is a little unstable. Many Deputies on the north side, including myself, are concerned that some companies, such as Intel, are not proceeding with planned expansion projects. I hope the economy will continue to grow reasonably strongly. In the meantime employees today change employment considerably more often than they would have done in the past. Given today's modern, flexible economy an employee with six to eight months' service with an employer could have made a major contribution to the workforce.

Carer's leave is different from maternal or parental leave. It provides for 65 weeks leave by comparison with 14 weeks for parental and maternity leave. We are all agreed that this is good legislation but legislators should be willing to review it after it has been in operation for a time and introduce whatever amendments are considered necessary.

It is not unreasonable that an employee should be required to have shown a commitment to an employer in terms of length of service before he or she can claim carer's leave. The Deputy accurately reflects the concerns of the trade union movement but my concern is to balance the conflicting arguments. I hope I have been fair to all concerned throughout the Bill.

The current provision requiring continuous employment of 12 months is similar to other employment rights legislation and is reasonable. I do not propose to accept the amendment but I am willing to consider it further between now and Report Stage. I accept the Deputy's point that issues may arise which require adjustment in the context of the implementation of the legislation. There is a need to be as humane as possible and this is reflected in the Bill. I am prepared to look at this issue before Report Stage.

One of the problems faced by legislators as regards carer's leave is the fact that the Minister, Deputy Dermot Ahern, announced this provision a year ago. I do not wish to make political charges but he lived off the glory of this announcement for nine or ten months until last October when the first group of carers could apply for carer's benefit which was awarded before this legislation was in place.

The unsatisfactory aspect of the procedure from our point of view was that the Minister for Social, Community and Family Affairs was doing one thing while the Minister for Enterprise, Trade and Employment and Minister of State were doing something different. Why is there a three month contribution requirement to qualify for carer's benefit? We discussed the three month requirement during debate on last year's Social Welfare Act but this provision seems totally at odds with the 12 month continuous service provision in this Bill.

The idea of carer's benefit was floated years ago by the trade union movement and the Labour Party. Given that this idea has been around for so long carer's benefit and carer's leave should have been provided for at the same time. This is April 2001 but since late October 2000 people have been eligible for carer's benefit who do not enjoy the protection of this legislation.

This is the worst example I have seen in the past four years of the largest spending Department and the Department critical of employers, employees and the economy failing to work together. This fact is reflected in the problem with the 12 month provision. The Department of Social, Community and Family Affairs has one requirement as regards qualifying for benefit under the Social Welfare Act. The Minister, Deputy Dermot Ahern, is the key Minister in terms of approving applications for carer's benefit. However, the Minister of State, Deputy Kitt, has a separate employee protection role.

I accept the Minister of State's comments regarding parental leave but I will put the amendment. The Government tried to extend the parental leave provisions this year and all sides of the House wish to increase maternity and paternity leave. In that context I do not understand why the Minister of State could not be more generous as regards carer's leave.

Deputy Broughan has made a valid point in that there should be a facility to consider pro rata leave in exceptional circumstances where people have not completed the 12 month service requirement and where medical evidence is provided, if required.

I would ask the Minister of State to address the issue of pro rata leave.

We discussed this issue with IBEC and ICTU. I have tried to achieve the right balance throughout the legislation but I am sticking to the position regarding the 12 month requirement. The 12 months continuous service provision ties in with other employment rights legislation, such as unfair dismissals legislation. There are implications for the rights of workers.

The total number of claims awarded for carer's benefit is 158. I hope there would be an agreement between employers and employees in such situations and I would ask employers to ensure that all these cases are handled by way of agreement. This adds to the case for passing this legislation as quickly as possible.

Does the Department support the agreement between employers and employees regarding the granting of leave?

The law is the law. Employers would like employees to show some commitment and that is a strong argument. I am willing to examine the 12 month provision before Report Stage.

A derogation could be allowed in the small number of exceptional circumstances where there is no alternative carer.

In practical terms there is a case for an agreement but I will return to this issue on Report Stage.

Deputy Perry's point is valid.

Amendment put and declared lost.
Section 6 agreed to.
Section 7 agreed to.
SECTION 8.

Amendment No. 7 is consequential on amendment No. 6 and these amendments may be taken together.

I move amendment No. 6:

In page 9, line 44, after "may" to insert ", subject to subsections (2) and (3) and any regulations made under subsection (6),”.

This amendment changes the position of the clause "subject to subsections (2) and (3)” from section 8(1)(b) to the beginning of section 8(1) (a) so that the limitations on the way leave may be taken are more clearly flagged.

Amendment No. 7 inserts the provision following "and any regulations made under subsection (6)” which is a reference to another provision in the section which could act to limit the application of subsection (1). This amendment to section 8(1) follows from the previous amendment which inserts the above at the beginning. This is a technical amendment.

Amendment agreed to.

I move amendment No. 7:

In page 10, subsection (1)(b), line 1, to delete “subject to subsections (2) and (3),”.

Amendment agreed to.

Amendments Nos. 8, 9 and 18 are related. Amendment No. 10 is an alternative to amendments Nos. 8, 9 and 18 and these amendments may be taken together.

I move amendment No. 8:

In page 10, subsection (2), line 5, to delete "without reason" and substitute "on reasonable grounds".

Amendments Nos. 8, 9 and 18 would alter the provision so an employer could refuse a period of leave of less than 13 weeks duration only on reasonable grounds. On Second Stage a number of Deputies, in addition to ICTU, suggested that it is unfair that employers should not be required to give a reason for refusing an employee a period of carer's leave which is less than 13 weeks in duration. It is further contended that this absolute right bestowed on the employer starkly contrasts with the onerous requirements placed on the employee whose relative or friend may be suddenly taken ill and require full-time care and attention.

Accordingly, amendment No. 8 proposes that an employer may only refuse an employee's request to take carer's leave of less than 13 weeks where there are reasonable grounds for so doing. Amendment No. 9 further provides that where an employer believes such reasonable grounds exist, he or she shall specify such grounds in writing to the employee. Amendment No. 18 clarifies that where a dispute arises as to whether reasonable grounds exist in these circumstances, such disputes may be referred under section 19 to a rights commissioner for adjudication.

Amendment No. 10 in the name of Deputy Broughan is similar but does not go as far as my amendment which requires the employer to notify the employee of the grounds for refusing carer's leave of 13 weeks duration. The Deputy and I are thinking along the same lines but I prefer my three amendments. I hope the Deputy will accept my amendments and withdraw his.

I welcome the provision regarding reasonable grounds but I am still concerned about the situation regarding leave of less than 13 weeks duration. Carers may be under great stress and the Bill is a step forward. The Minister of State's amendment regarding reasonable grounds has gone some way towards addressing my concerns but I would have preferred a different formula.

My amendment makes a reference to the rights commissioner. I accept that the Minister of State has also moved in that direction so, on balance, I am satisfied.

It is important to reflect on the operation of the 13 week period from the point of view of business. Section 8(3) states:

An employee who has taken a period of carer's leave in accordance with subsection 1(b) in respect of the relevant person, shall not be entitled to commence a further period of carer’s leave in respect of the same relevant person, until a period of 6 weeks has elapsed since the termination of the previous period of carer’s leave.

It will be difficult to operate this provision given the practicalities of recruiting replacements. The period should be extended to a minimum of eight weeks to allow for the disruption to business and other employees.

The Minister of State referred to the need to obtain the co-operation of employers. He must remember, however, that most small companies employ less than ten people. Carer's leave will mostly arise in the case of workers on low incomes. Those on carer's leave will receive £85 per week, which is a low salary. Thosee who earn £400 or £500 per week will not apply for such leave. Small companies will be most affected by the introduction of carer's leave. Many of these companies employ people earning the minimum wage of £4.40 per hour, which is £176 per week. The success of the scheme will be seen in rural areas and small towns.

Chairman, this issue is addressed in amendment No. 11, if you wish to take it now.

We will take amendment No. 11.

Chairman, can we not finish this group of amendments first? Amendments Nos. 11 and 15 are related.

The Deputy and I have similar objectives. There is a fallback provision with regard to the resolution of disputes. I ask the Deputy to accept my position in this regard in order that we can move on to amendment No. 11.

I referred to this issue on Second Stage.

I hope the Deputy will not repeat what he said then.

A period of 65 weeks can be taken for carer's leave; yet, the period of notification of employers is very short. There is a four week notification period for maternity or adoptive leave of 18 weeks. However, the period of notification for a 65 week period of carer's leave is only——

The Deputy is referring to amendment No. 11. We will deal with this issue when we reach amendment No. 11.

Can I clarify that amendment No. 18 will provide for disputes being referred to the rights commissioner?

Amendment agreed to.

I move amendment No. 9:

In page 10, subsection (2), line 7, after "duration" to insert "and where the employer so refuses he or she shall specify in writing to the employee the grounds for such refusal".

Amendment agreed to.
Amendment No. 10 not moved.

Amendments Nos. 11 to 13, inclusive, are related. Amendments Nos. 14 and 15 are alternatives to amendment No. 13. Amendments Nos. 11 to 15, inclusive, may be discussed together.

I move amendment No. 11:

In page 10, subsection (3). line 11, to delete "6" and substitute "8".

The purpose of the six week gap between periods of carer's leave for the same relevant person is to give employers time to recruit and train replacement staff. Amendment No. 22 regarding section 9(2) recognises emergency situations concerning the giving of notice for carer's leave. I am satisfied that the six week requirement strikes the right balance for employers and employees given the difference in approach between the ICTU and IBEC, as reflected by the members. Accordingly, I do not propose to accept either amendment, but prefer to retain the six week provision in the Bill.

As regards amendment No. 12, the Bill, as drafted, requires employees to go through the procedures set down in section 6(5) before obtaining a second period of carer's leave for the same relevant person. The inclusion of the amendment, therefore, is unnecessary. Such a requirement would be likely to be interpreted by employees as being unnecessarily bureaucratic. If employers have concerns regarding whether the relevant person is still in need of full-time care and attention, they are free to use the provision in section 18. Accordingly, I do not propose to accept this amendment.

Amendment No. 14 addresses the issue raised by amendment No. 13 regarding periods between blocks of carer's leave. I do not propose to accept amendment No. 15 as it would restrict the number of times carer's leave can be taken by individual employees. Such an approach would be against the spirit and intent of the Bill which has been generally accepted by all interested parties as being innovative social legislation which allows employees time off work to look after a sick or elderly person. Decisions to take carer's leave will not be taken lightly as the relevant person requiring full-time care will have been medically assessed by the Department of Social, Community and Family Affairs. I do not wish to place restrictions on anyone as that would not facilitate urgent and emergency situations.

While I accept the Minister of State's point, the period of notice is disproportionately short when compared to the notice required for maternity, parental and adoptive leave. People could be on leave for over 130 weeks. This would create operational difficulties for small companies in terms of replacing staff. There would also be difficulties when people decide to return to work. The period of notice required for returning to work is as short as that required when people are taking leave. This will create operational difficulties.

The position is different if people are leaving the Civil Service or State employment. Small companies, however, will encounter difficulties if people leave for a year. We all wish to help people, but this is not a simple matter for businesses. All employers are accommodating to staff, but the Minister of State must take account of the difficulty employers face when they receive short notice that employees wish to leave or indefinitely extend periods of leave. How can an employer guarantee that a job will still be available given the volatile business environment? It is different when the Exchequer is bankrolling a company as continuity is guaranteed. It is difficult, however, to give such copper-fastened guarantees in the real world of business. This issue should be examined.

I appreciate the Deputy's pragmatic contribution as he understands the difficulties faced by employers.

I will press the amendment. I do not agree with the restriction being introduced in section 11. The Minister of State rightly said that this provision reflects the practical point of view of some employers. It does not, however, reflect the family situations in which carers often find themselves where an elderly parent or sick child may suffer a serious relapse. The day-by-day nature of caring is such that those suffering from Alzheimer's disease or similar chronic, long-term illnesses can have extremely bad days. I do not accept amendment No. 12 which introduces a severe restriction on the rights of employees.

Amendment No. 13 deals with the relevant period when people have taken carer's leave and fulfilled the conditions set out by the Department of Social, Community and Family Affairs. The 12 month period seems a severe condition given the needs of families and carers. My amendment proposes a six month period of restriction after a person has completed 65 weeks leave before he or she could take another period of leave. The amendment also allows for emergencies faced by carers. A person could fulfil the conditions for carer's benefit under the Social Welfare Act but the Minister of State seems to be proposing unduly restrictive conditions in section 13(4).

I wish to refer to the entitlement to bank holiday leave and redundancy payments from the point of view of companies. Will the Minister of State clarify where the obligations rest in this regard?

This issue is dealt with later in the Bill. In preparing this legislation I listened to the views of Deputies and representatives of ICTU and IBEC. Deputy Broughan and I are coming closer as regards the six month period. I am reducing the 12 month period to six months. I am also addressing the issue of exceptional circumstances by way of amendment No. 22. There is agreement on some of the issues.

Amendment, by leave, withdrawn.

I move amendment No. 12:

In page 10, between lines 12 and 13, to insert the following subsection:

"(4) 6 weeks before commencing a second period of the carer's leave the employee shall provide their employer with a signed declaration from the Department of Social, Community and Family Affairs stating that, following investigation, the care recipient is still considered to be a 'relevant person' under the terms of the Act and thus the employee is eligible to take the next period of leave.".

The Deputy's concerns in this regard are covered in section 6(5).

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 10, lines 13 to 17, to delete subsection (4) and substitute the following:

"(4) Where an employee has taken carer's leave in respect of a relevant person and that period of carer's leave has terminated-

(a) the employee shall not commence carer’s leave in respect of another relevant person until 6 months has elapsed since the termination of the previous period of carer’s leave; or

(b) in exceptional circumstances when another relevant person requires full-time care and attention prior to the lapse of 6 months, the employee shall be permitted to commence carer’s leave in respect of another relevant person when 4 weeks has elapsed since the termination of the previous period of carer’s leave.”.

Amendment put and declared lost.

I move amendment No. 14:

In page 10, subsection (4), line 16, to delete "12" and substitute "6".

Amendment agreed to.
Amendment No. 15 not moved.

I move amendment No. 16:

In page 10, subsection (5), line 19, to delete "to" and substitute "in respect of".

What is the need for the change provided for in this amendment?

This is a self-explanatory drafting amendment which provides a necessary grammatical correction of the text of section 8(5).

Amendment agreed to.

I move amendment No. 17:

In page 10, subsection (6), line 25, after "in subsection (1)(b)” to insert “and in which carer’s leave may be taken in such form by any specified class or classes of employees”.

This amendment sets out the various restrictions on the ways in which a period or periods of leave may be taken. Section 8(6) as an alternative to the provisions in section 3(5) of the Bill as initiated confers the power on the Minister to make regulations regarding any specified class or class of employees setting out the manner in which carer's leave may be taken in a form other than one continuous period of 65 weeks, namely, in the form specified in section 8(1)(b).

What does the Minister of State mean by a form other than one continuous period of 65 weeks?

The leave can be taken in lesser amounts.

Amendment agreed to.

I move amendment No. 18:

In page 10, between lines 25 and 26, to insert the following subsection:

"(7) A dispute arising out of subsection (2) shall be a dispute to which section 17 applies.”.

Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.

Amendment No. 20 is an alternative to amendment No. 19. Amendment No. 21 is related and amendment No. 22 is an alternative to amendment No. 21. These amendments may be taken together.

I move amendment No. 19:

In page 10, subsection (1), to delete lines 26 to 29 and substitute the following:

"(1) When an employee proposes to take a period of carer's leave of between 9 and 18 months, the employee shall, not later than 12 weeks before the proposed commencement of the carer's leave provide notice to the employer. If the period of leave anticipated is of less than 9 months but greater than 6 months duration, a period of 8 weeks notice shall be given and if the period of leave anticipated is less than 6 months, 6 weeks notice shall be given. Notice shall be provided in writing and shall include-".

The Bill proposes that an employee will provide an employer with a notice in writing of his or her intention to take carer's leave six weeks before the proposed commencement of the leave. The lead-in period is very short in comparison to other legislation. My amendment proposes that when an employee proposes to take leave for a period of between nine and 18 months, the employee shall provide notice to the employer not later than 12 weeks before the proposed commencement of the carer's leave. If the anticipated period of leave is less than nine months but greater than six months, a period of eight weeks notice shall be given. Notification is an important issue. There will be exceptional circumstances when other arrangements could be agreed but it is important that agreement is given.

There is general concern that the period of notice of six weeks is too long and does not reflect the difficulties and emergencies which may develop due to sudden changes in the condition of the person to be cared for. The Parental Leave Act, 1998, contains a similar provision but the length of the period of notice seems unduly long. We would wish the period of notice to be reduced to four weeks as in the Maternity Protection Act, 1994, which was passed by the partnership Government. Such a period would more adequately reflect the situations which arise.

I am aware of the concerns expressed by Deputy Perry as regards the running of businesses or the public service and the constraints people face. However, the core of this legislation concerns the provision of alternative options for carers. I will press the amendment.

We can reach a consensus on this issue as I agree with Deputy Broughan's comments on cases involving exceptional circumstances. One Deputy proposes moving from six weeks to eight weeks and the other proposes moving from six weeks to four weeks. I favour the six week period. I will quickly go through my arguments here.

Section 9 provides that an employee must give notice in writing to his or her employer at least six weeks prior to the date on which the leave is proposed to commence, informing him or her, first, that he or she proposes to take such leave; second, that he or she has made an application to the Minister for Social, Community and Family Affairs for a decision from a deciding officer or an appeals officer that the person to be cared for while on leave is a relevant person and, third, of the date on which he or she proposes to commence the period of carer's leave and the duration of any such period.

Amendment No. 19, in effect, reflects the IBEC view, that the notice proposed is not long enough and suggests a revised period of eight to 12 months. Amendment No. 20 reflects the ICTU position, that the period of notice of intention to take carer's leave of six weeks is too long and should be reduced to four weeks, given the type of situation which carer's leave may cover, for example, a sudden illness.

I accept that carer's leave will be availed of to cover circumstances such as sudden illness, where shorter notice requirements would be desirable. However, we must not ignore the difficulties in the labour market of replacing staff at short notice, but I will come to the exceptional circumstances in a moment.

The time constraints on officials in the Department of Social, Community and Family Affairs in processing applications and medical assessments of carer's leave must also be borne in mind and in this context I believe we have struck the right balance in providing for notification of six weeks. Accordingly, I do not intend to accept either of these amendments and I would propose to retain the existing notification of six weeks.

Section 9(2) provides that where it is not reasonably practicable for an employee to give notice to the employer of his or her intention to take carer's leave in accordance with the minimum six weeks' prior notice specified in section 9(1), then the employee shall give that notice as soon as is reasonably practicable.

Amendment No. 22, originally proposed by IBEC, provides that this entitlement, allowing an employee to give notice of intention to take carer's leave as soon as is reasonably practicable rather than within the stipulated six weeks, should apply only in exceptional or emergency circumstances. All things considered, I believe it to be appropriate in these circumstances. I prefer this amendment to amendment No. 21, proposed by Deputies Flanagan and Perry, which I do not propose to accept.

The Minister has responded favourably to both issues raised.

I am just wondering whether the Minister for Social, Community and Family Affairs, Deputy Dermot Ahern, who calls this is a Centre-Left Government, or the Minister for Finance, Deputy McCreevy, who calls it a Centre-Right Government, is in the ascendency. I still think the Minister for Finance is in the ascendency and therefore I will press my amendment.

I remind the Deputy that six weeks is right in the centre, between four and eight.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 10, subsection (1), line 27, to delete "6" and substitute "4".

Amendment put and declared lost.
Amendment No. 21 not moved.

I move amendment No. 22:

In page 10, subsection (2), line 35, after "Where" to insert ", in exceptional or emergency circumstances,".

Amendment agreed to.

Amendments Nos. 23 and 24 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 23:

In page 10, subsection (3), line 39, after "subsection (1)” to insert “or, where appropriate, subsection (2),”.

Section 9(3) provides for revocation by the employee in writing of a notice to the employer to take carer's leave made under subsection (1), that is, where at least six weeks notice of intention to take the leave has been given. This, in effect, provides that an employee who changes his or her mind about taking the leave must inform the employer in writing before the confirmation document is dated, generally at least two weeks before the leave is due to commence. The Bill, as initiated, did not provide for the situation where due to exceptional or emergency circumstances, the six weeks notice was not given. The two amendments are proposed to remedy this situation.

The amendments will be welcomed.

Amendment agreed to.

I move amendment No. 24:

In page 10, subsection (3), line 44, after "subsection (1)” to insert “or, where appropriate, subsection (2).”.

Amendment agreed to.

Amendment No. 26 is an alternative to amendment No. 25, and amendment No. 29 is related. Therefore, we will discuss amendments Nos. 25, 26 and 29 together by agreement. Is that agreed? Agreed.

I move amendment No. 25:

In page 10, subsection (4), lines 47 to 49, to delete from and including "the" on line 47 down to and including "accordingly.", and substitute "the leave may be treated as carer's leave and this Act shall apply to that leave accordingly. If a dispute arises in relation to the application of this subsection, the employee may refer the matter to a rights commissioner under section 19 of this Act.”.

This amendment seeks to delete the following words in lines 47 to 49, "the employer may, at his or her discretion,", which is the key point, "treat that leave as carer's leave and this Act shall apply to that leave accordingly", and substitute "the leave may be treated as carer's leave and this Act shall apply to that leave accordingly", and then that it ". . . may refer the matter to a rights commissioner . . . ".

I tabled this amendment because on Second Stage I felt that this subsection appeared to give carte blanche to an employer to use his or her discretion to decide whether leave is actually carer’s leave and where, perhaps for understandable reasons, the employee would not be able to comply with all the terms of the notice.

This refers to the kind of situation in which carers find themselves where the person to be cared for has a chronic condition or in emergencies. The view of the Labour Party is that the employee's rights should not be placed at the discretion of the employer by this type of legislation and should be vindicated in this subsection by reference to the rights commissioner.

I know the Minister has moved to try to incorporate some of that but it did seem an extraordinarily wide body of rights to give the employer in deciding, particularly in view of the fact that we have set the carer's benefit and there is a process in the Department of Social, Community and Family Affairs whereby carer's benefit could be accessed. It seemed again that with carer's leave we were trying to go back over the ground which had been conceded regarding carer's benefit by the Minister, Deputy Dermot Ahern, and the Government last year and that it was an incongruous piece of legislation.

ICTU pointed out that section 9(4) covers employees who are entitled to carer's leave and who have a decision by the Department of Social, Community and Family Affairs that the relevant person requires full-time care and attention. However, the section, as drafted, could allow an employer, as Deputy Broughan has said, not to treat the leave as carer's leave and consequently the Carer's Leave Act will not apply to the employee. Therefore, ICTU contends that under natural justice an employee entitlement to carer's leave should not be dependent on the employer and any dispute should, as a minimum, be referable to a rights commissioner and, on appeal, to the Employment Appeals Tribunal.

This was a major issue on Second Stage and was raised by a number of Deputies. I have had discussions with the social partners in the interim and I am satisfied that amendment No. 26 and the insertion of a new section 9(8) addresses these concerns. We have, as a result of our Second Stage debate and the concerns raised here, addressed the situation.

I thank the Minister of State for his positive response.

In view of what the Minister of State said, I will withdraw my amendment.

Amendment, by leave, withdrawn.

I move amendment No. 26:

In page 10, subsection (4), line 48, after "discretion" to insert "and subject to subsection (8)”.

Amendment agreed to.

Amendment No. 27 is in the names of Deputies Flanagan and Perry. Amendment No. 28 is related. Therefore, we will discuss amendments Nos. 27 and 28 together by agreement. Is that agreed? Agreed.

I move amendment No. 27:

In page 11, subsection (6), line 3, to delete "4" and substitute "8".

I am pleased to note that the Minister of State has taken this amendment on board in amendment No. 28, but I believe that where the Bill states that an employee who is on carer's leave shall, not less than four weeks before the date on which that employee proposes to return to his or her employment, give notice in writing to the employer of the intention to return to work, the Minister of State should look at this. I ask him to recognise the difficulties arising where people are coming and going within a company. It is important that the employer would know and, likewise, that the employer would know, and that there is no uncertainty about this. The notice is very necessary.

On the written notification to the employer of the employee's intention of returning to work, the word "proposes" should be replaced by the words "is due" in order that the Bill would state:

An employee who is on carer's leave shall, not less than 4 weeks before the date on which that employee is due to return to his or her employment, give notice in writing to the employer of the intention to return to work.

That is a very important clarification because, to return to the point we made earlier, we are dealing with small companies - the majority of companies have fewer than ten staff. Many companies do not have an office procedure unit and more often than not it is an owner/occupier who is operating the business. This is important in the interests of regulation also. Making that official would certainly make it easier.

Deputy Flanagan has made a very reasonable point regarding amendment No. 28. I will accept that amendment. For reasons I have explained, I will not accept amendment No. 27, but will accept amendment No. 28.

Amendment, by leave, withdrawn.

I move amendment No. 28:

In page 11, subsection (6), line 4, to delete "proposes" and substitute "is due".

I have some reservations about this amendment.

Amendment agreed to.

I move amendment No. 29:

In page 11, between lines 8 and 9, to insert the following subsection:

"(8) An employer may, when exercising his or her discretion under subsection (4), refuse to treat leave as carer’s leave on reasonable grounds and where the employer so refuses he or she shall specify in writing the grounds for such refusal and a dispute arising out of such exercise shall be a dispute to which section 17 applies.”.

Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.

I move amendment No. 30:

In page 11, subsection (1), line 11, to delete "2" and substitute "4".

This amendment relates to the confirmation of carer's leave and increasing same from two to four weeks. When an employee has given his or her employer the confirmation referred to in section 6(1), the employee and employer shall, on a date not less than four weeks before the commencement of the leave concerned, prepare and sign a document referred to in the Bill as a confirmation document specifying the date of commencement of the carer's leave and are to arrange the form in which it is to be taken.

In case they may change their minds, there should be a standard form from the Department that could be given to employers to standardise matters as against employers' own notepaper being used. If there was a standard form that could be held in triplicate, the employee, employer and Department could each have a copy and there would be no misunderstanding, as it would be witnessed by everyone.

It is amazing the difficulties that can arise when someone decides to leave employment, as the Chairman will be aware, being an employer himself. Someone else is employed who may be more suitable and then the first person comes back. There should be a simple and clear document, copies of which could be given to those involved.

I do not accept some of those arguments. The nature of caring means one has to make decisions speedily and the disabled person can deteriorate quickly. Workers can come under enormous pressure in that regard. There should be the maximum flexibility for confirmation from the employee side, given the nature of carer's leave.

I am on the same line as Deputy Broughan and would stick with two weeks on this issue.

Will the Minister of State agree to having a standard form which would be in the interests of staff as well as everyone else? A simple form stating the terms would be useful.

I would have no problem with that, but in general terms the State should be keeping out of this. It should be a straightforward matter between employers and employees, but I will examine it.

I am aware that the Minister of State wants the State to stay out of this, but it is very much involved because one is referring to the partnership between the State and the employer. Much as the Department would like to stay out of this, it cannot as it is paying the carer also. The employer is giving a commitment to re-employ the person concerned. While this is a very worthwhile scheme, we should keep it simple and make sure everyone knows where they stand with it. A standard document approved by the Department would ensure it was not abused.

I will consider the issue.

Amendment, by leave, withdrawn.
Section 10 agreed to.
NEW SECTION.

I move amendment No. 31:

In page 11, before section 11, to insert the following new section:

"11.-(1) Where an employee has given notice to his or her employer and the employer is satisfied that the taking of carer's leave at the time specified in the notice would have a substantial adverse effect on the operation of his or her business, profession or occupation by reason of seasonal variations in the volume of the work concerned, the unavailability of a person to carry out the duties, the number of employees in the employment or the number thereof whose periods, or parts of whose periods, of carer's leave will fall within the period specified in the said notice, the employer may, by notice in writing given to the employee not later than 4 weeks before the intended commencement of the leave, postpone the commencement of the leave to such time not later than 6 months after the date of commencement specified as may be agreed upon by the employer and the employee.

(2) Before giving a notice under this section to an employee, an employer shall consult with the employee in relation to the proposed postponement of carer's leave.

(3) A notice shall contain a statement in summary form of the grounds for the postponement of the commencement of the carer's leave concerned.".

This is a clarification in respect of the constitutional reference in the Bill and the entitlement to public holidays. As regards complaints regarding the abuse of leave to the Department, it is a matter of having guidelines and procedures in place.

I acknowledge that there will be situations such as those set down in amendment No. 31 whereby an employer, especially one with small staff numbers, will seek the postponement of carer's leave to address urgent work requirements. However, given the nature and circumstances in which carer's leave is likely to be taken, I am satisfied that section 12, as drafted, should provide a comfort factor for employers.

Section 12 provides for the postponement, curtailment and variation of the form in which carer's leave may be taken by agreement with the employer and employee concerned. It also provides that where carer's leave is postponed, curtailed or varied, it may, subject to section 6, which deals with entitlement to carer's leave, be taken at another time. Accordingly, I do not propose to accept the amendment.

It is important to reflect the fact of postponing carer's leave. The figure of in excess of 30 weeks, particularly for seasonal employees, could present difficulties. It could be difficult to recruit people to replace others for such a short period of time. An approach similar to that adopted in the Parental Leave Bill, 1998, could be used in this Bill for circumstances where there is not an urgent need from the employee to leave employment immediately. The amendment states that where an employee has given notice to his or her employer and the employer is satisfied that taking carer's leave at the time specified would have a substantially adverse effect on the business, profession or occupation by reason of seasonal variations in the volume of work concerned, the unavailability of persons to carry out the duties, the number of employees in employment or the number thereof whose periods of carer's leave will fall within the period specified, the employer may postpone the commencement of the leave; that before giving a notice under this section to an employee, an employer would consult with the employee in relation to the proposed postponement of carer's leave, and that a notice should contain a statement in summary form of the grounds for the postponement of the commencement of the carer's leave concerned.

I accept some of the issues raised by Deputy Perry regarding small business. We are aware of the hurly burly of day-to-day business in which we are engaged to some extent. The employer and employee are, however, both, probably, well aware of the nature of the business and would, presumably, have worked the matter out and not reached this stage knowing the likely emergencies in their business. The current state of the economy would be interesting for many businesses, for example. There is a fair possibility of some agreement on the matter. I would, therefore, go along with the Minister of State that section 12 represents a fair resolution of these issues which I am aware are real in the daily life of the economy.

Again, I agree with Deputy Broughan. One might have unforeseen circumstances and people might have to act quickly. We are allowing for such flexibility in section 12. I suggest that we stay on the course proposed by the Government side.

Amendment, by leave, withdrawn.
SECTION 11.

I move amendment No. 32:

In page 11, subsection (1), lines 26 to 35, to delete paragraphs (a) to (d), and substitute the following:

"(a) when the period of carer’s leave specified in the confirmation document expires,

(b) by agreement between the employee and the employer concerned,

(c) the relevant person is in receipt of full-time care and attention from a person other than the employee concerned,

(d) 6 weeks from the death of the relevant person unless the period specified in the confirmation document expires before the end of that 6 week period, or

(e) where the relevant person recovers health and does not require full-time care and attention.”.

This is a tidying-up operation. The current formulation of section 11(1) deals with ways in which carer's leave might terminate and needs revision in terms of clarity and being user-friendly. Such a situation as the return to health of the person being cared for, where full-time care is no longer needed, does not appear to be covered by the current text. A rearrangement of section 11(1) is, therefore, required. I am advised that the section may need further reworking and may return to it on Report Stage. We are, simply, tidying it up.

Can the Minister of State indicate how he decided on six weeks from the death of the relevant person?

The social welfare care pay is for six weeks.

Is there any flexibility whereby it could be extended for longer than six weeks for a carer who has cared for someone for many years?

We are dealing with a different Ministry. I will check those issues.

I will discuss the matter privately with the Minister of State.

Paragraph (e) seems to be the fundamental difference. The Minister of State said it will need reworking. I am thinking of family care situations of which I am aware and I do not know if they will be covered. Perhaps it would be relevant for children with long-term disabilities. I am not sure if it would be relevant for other chronic conditions or for older people with disabilities. A person might have a good period and then have a relapse. Perhaps it is too all-embracing. Will section 11(1) be completely changed on Report Stage?

No. There may be a need for some minor readjustment, but I do not propose to do anything substantial with it. I may come back on Report Stage to ensure it is technically correct and to tidy it up if required.

Amendment agreed to.

I move amendment No. 33:

In page 11, subsection (2)(a), line 38, to delete “relevant person is not” and substitute “person in respect of whom an employee proposed to take or has taken carer’s leave was not or is no longer”.

This is a drafting amendment.

Amendment agreed to.

Amendment No. 34. Amendments Nos. 34, 45 and 47 are related and may be discussed together by agreement.

I move amendment No. 34:

In page 11, subsection (2)(b), line 39, to delete “will not provide or is not” and substitute “does not satisfy the conditions for”.

This is a drafting amendment.

Line 39 will now state that "the employee does not satisfy the conditions for providing full-time care and attention". Is the Minister of State trying to move it into line with the Department of Social, Community and Family Affairs?

Yes. We cannot assess into the future.

Amendment agreed to.

I move amendment No. 35:

In page 12, lines 4 to 6, to delete subsection (3) and substitute the following:

"(3) The employer shall, as soon as practicable, give the employee a notice in writing specifying the date on which the employee is to return to his or her employment and that date shall be a date that is practicable and is nearest in time to the date of such notice.".

Section 11(3) of the Bill, as initiated, provides that an employer must give to his or her employee a notice in writing specifying the date on which the employee is to return to his or her employment following the termination of carer's leave in the circumstances set down in section 11(2). As this subsection does not specify a timescale within which the employee should be facilitated in returning to work, an amendment making the provision more specific is considered desirable. Accordingly, the amendment provides that notice of returning to work should relate to the earliest possible time. Any dispute arising under this provision may be referred to the rights commissioner under section 19 of the Bill for adjudication. As far as I can remember, ICTU raised this issue.

Amendment agreed to.

I move amendment No. 36:

In page 12, subsection (7), line 23, to delete "registered prepaid post" and substitute "prepaid registered letter".

Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 agreed to.
SECTION 13.

Amendment No. 37. Amendments Nos. 37 to 39, inclusive, are related and may be discussed together by agreement.

I move amendment No. 37:

In page 12, subsection (1), line 46, to delete "annual leave, public holidays,".

This is an important amendment. Section 13 refers to the protection of employment rights. The Minister is seeking to delete the rights to annual leave and public holidays from the operation of this legislation. The provisions of this section seem to differ significantly from section 14 of the Parental Leave Act, 1998; it does not exclude an employee's rights to annual leave and public holidays. The section should be amended to bring it into line with the Parental Leave Act. I do not understand why a carer should be treated in a less favourable manner. A parent who takes 14 weeks' parental leave is considered to be in employment for the purpose of annual leave and public holidays, given that carers and parents have worked for a long time for a company and will perhaps work for it for a long time in the future. Yet the carer who takes 14 weeks carer's leave to care for someone who is incapacitated will not be considered to be in employment for the purpose of annual leave and public holidays. The section should be amended to ensure that carers and parents are treated equally.

The Third Schedule of the Organisation of Working Time Act, 1997, appears to contradict the Minister's thinking in this regard. I was referred by my trade union colleagues to other legislation, such as the Adoptive Leave Act, 1995, and the Maternity Protection Act, 1994, which allow service during periods of leave to count for the purposes of annual leave and public holidays. I presume the rationale behind the exclusion of annual leave and public holidays was the length of the period of leave, that is, 65 weeks compared to 14 weeks. However, it could be argued that an employee who has completed a period of carer's leave, which could be traumatic, should be entitled to a period of annual leave before returning to work.

Service should also be included for the purpose of redundancy. Will it be made known to the people who take time off that they will be paid directly by their employer for public holidays? It is important to clarify that and to bring it to the attention of people taking leave.

It would be unreasonable to expect employers to give employees on carer's leave, annual leave and public holidays the full 65 weeks' entitlements. In many cases an employer must temporarily replace the employee absent on carer's leave and the new employee will also be entitled to annual leave and public holidays. In these circumstances it would not be reasonable to expect the employer to give full annual leave and public holiday entitlements to the employee absent on carer's leave. Amendment No. 39 provides that an employee shall be entitled to public holidays for the first 13 weeks absence of the 65 weeks' entitlement, that is, where an employee takes 20 or 30 weeks or a block of 65 weeks' carer's leave. The public holiday entitlement will only apply to the public holidays arising in the first 13 weeks of the first absence. It may be necessary to revisit this amendment on Report Stage to make this intention clear. I have accepted a few of ICTU's amendments, but it is reasonable to follow the Organisation of Working Time Act on this occasion.

It is important to keep it simple and to inform employers of their obligations. We must clearly establish the fact that an employer must pay an employee his or her entitlements while he or she is absent. The number of days an employer is obliged to pay an employee should be specified when he or she is taking carer's leave. There should not be a disagreement about it. That should be clearly stated.

I welcome amendment No. 39. If the Minister of State intends to simplify it in terms of the legislation to which I referred, a similar situation could apply across the board. I will not push my amendment but I may come back to it on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 38 not moved.

I move amendment No. 39:

In page 13, between lines 19 and 20, to insert the following subsection:

"(4) Section 21(5) of the Organisation of Working Time Act, 1997, shall apply to the entitlement to public holidays referred to in subsection (1).”.

Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14.

I move amendment No. 40:

In page 13, subsection (1), lines 29 and 30, to delete paragraph (b) and substitute the following:

"(b) in the same or similar job to that which the employee held prior to the commencement of the period, and”.

It is important that the right to return to work reflects the reality of commercial life where few jobs remain exactly the same on a yearly basis. Section 14(1)(b) states: “in the job that the employee held immediately before the commencement of the period”. The amendment states: “in the same or similar job to that which the employee held prior to the commencement of the period”. Nothing stays the same in any job. An element of discretion would help if an employee is returning to a job which may be similar to but not exactly the same as a previous job.

I am worried about the amendment because if we do not make a precise reference, as has been done in the Bill, people could find themselves in different types of activity. Who will define the term "similar"? There is a wide variety of jobs at the same grade in many areas of the public and private sector. I would prefer to leave section 14(1)(b) as drafted.

This issue was raised with me by IBEC following the publication of the Bill. We have discussed the matter with the Office of the Parliamentary Counsel to the Government. It is considered that the amendment proposed is unacceptable because if the employee cannot be returned to the job he or she held immediately before the commencement of the leave, section 15, which deals with the right to alternative employment, should apply. Accordingly, I do not propose to accept the amendment. It is dealt with in section 15.

Amendment, by leave, withdrawn.
Section 14 agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."

Given that the Minister of State referred to section 15, he might clarify the issue now for Deputy Perry.

Section 15 relates to the right to alternative employment.

Is Deputy Perry happy with that?

As regards the right to appeal to the Labour Court rather than the Employment Appeals Tribunal, I can see certain difficulties. I presume the Minister of State is talking about co-operation between employers and employees. Difficulties could arise at the Employment Appeals Tribunal. The Labour Court would be a more suitable forum than the Employment Appeals Tribunal to appeal disputes given its less judicial setting.

This is a standard provision in employment legislation.

The right to an alternative.

Question put and agreed to.
SECTION 16.

I move amendment No. 41:

In page 14, subsection (3), line 36, to delete "shall" and substitute "may".

Amendment agreed to.

I move amendment No. 42:

In page 14, subsection (3), line 37, after "Unfair Dismissals Acts, 1977 to 1993" to insert ", in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part 4”.

Section 16(3), as initiated, prohibits an employer from penalising employees for exercising or proposing to exercise their rights under the Bill. Accordingly, this amendment is desirable to clarify that a dispute concerning a dismissal in these circumstances may not be referred to a rights commissioner under this Bill. The jurisdiction of a rights commissioner under this Bill, as initiated, is limited in respect of the order he or she may make to either or both of the following: the granting of carer's leave for such duration and at such time as may be specified and an award of compensation payable by the employer to the employee up to a maximum of 26 weeks' remuneration. A rights commissioner does not have jurisdiction to order reinstatement or re-engagement or compensation of up to two years' remuneration, as is provided under the Unfair Dismissals Acts, 1977 to 1993.

That is a welcome amendment.

Amendment agreed to.
Section 16, as amended, agreed to.

Are we going to continue? You said, Chairman, we would stop at 3.30 p.m. We have facilitated you to move quickly through the Bill.

We will suspend the sitting until 4.30 p.m. when we will resume on amendment No. 43 to section 17.

This will be a world record for dealing with Committee Stage of a Bill.

The Deputy should have been here when I dealt with some previous Bills.

I am not used to this.

We are not breaking any records.

The Committee went into private session at3.37 p.m. and resumed in public session at4.38 p.m.

I propose to suspend the meeting until 5.13 p.m. when the Chairman will be present. Is that agreed? Agreed.

Sitting suspended at 4.39 p.m. and resumed at 5.13 p.m.
SECTION 17.

Amendment No. 43 is in the name of the Minister.

I move amendment No. 43:

In page 15, subsection (1), line 8, to delete "including a dispute".

This is an amendment correcting the provision in the Bill, as initiated, which has the unintentional effect of applying Part 4, dispute resolution procedure of the Bill, in all disputes. It is a technical change.

Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.

I move amendment No. 44:

In page 15, lines 25 to 29, to delete subsection (1) and substitute the following:

"(1) An employer who is of the opinion that-

(a) the person in respect of whom the employee proposes to take carer’s leave is not or is no longer a relevant person, or

(b) the person in respect of whom carer’s leave has been granted, and in respect of whom the employee is on carer’s leave, is not or is no longer a relevant person,

shall notify the Minister for Social, Community and Family Affairs of his or her opinion and the grounds for that opinion.".

This amendment provides that where an employer is of the opinion that a person in respect of whom the employee proposes to take carer's leave is not a relevant person, that is, such a person is not or has ceased to be in need of full-time care and attention, the employer concerned must notify the Minister for Social, Community and Family Affairs rather than a rights commissioner of that opinion and the grounds for it. This will enable the Department to carry out an investigation into the validity or otherwise of the allegation. The amendment is intended to make the relevant provision clearer. It is a technical amendment.

Section 17(3) states that a document purporting to be a decision of a deciding officer or an appeals officer and signed by that officer shall be sufficient evidence of the making of the decision and of its terms, without proof of the signature of that officer or of the official capacity of that officer. It would be imperative that when the rights commissioner is obliged to accept the decision of the deciding officer, that this decision should be provided by way of an official document signed by relevant deciding officer.

I understand that what we have is acceptable. There is no need for change.

Amendment agreed to.

I move amendment No. 45:

In page 15, subsection (2), line 31, to delete "will not provide or is not" and substitute "does not satisfy the conditions for".

Amendment agreed to.

Amendment No. 46 is a drafting amendment.

I move amendment No. 46:

In page 15, subsection (4)(a), line 45, to delete “relevant” where it firstly occurs.

Amendment agreed to.

I move amendment No. 47:

In page 16, subsection (4)(b), line 1, to delete “will provide or is” and substitute “satisfies the conditions for”.

Amendment agreed to.
Section 18, as amended, agreed to.
Section 19 agreed to.
SECTION 20.

Amendment No. 48 is in the name of Deputies Flanagan and Perry. Amendments Nos. 49 and 51 to 62, inclusive, 64 and 65 are consequential. Therefore amendments Nos. 48, 49, 51 to 62, inclusive, 64 and 65 may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 48:

In page 16, subsection (1), line 39, to delete "Tribunal" and substitute "Labour Court".

The disputes should be referred on appeal to the Labour Court rather than the Employment Appeals Tribunal. The Labour Court would be a more suitable forum than the Employment Appeals Tribunal for these appeals. It is less formal and a less judicial setting. Therefore the section should be amended to state that a party concerned may appeal to the Labour Court from a decision of a rights commissioner under section 19 and the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal. All further references to the tribunal should be replaced with the words Labour Court.

This would be less expensive also. The appeals would be less expensive if they were conducted by the Labour Court rather than the Employment Appeals Tribunal.

I would not agree with these amendments in the names of Deputies Perry and Flanagan. The references to the third party have to do with the protection of the employee. It would usually concern an individual and therefore it is usually an issue of individual rights. Those rights are best protected under the tribunal. That is in some sense a more legal formal setting which would be the best protector of individual rights.

The employer organisations such as IBEC and the Small Firms Association would prefer the Labour Court were used on the basis that the atmosphere is more informal, although it can have a huge impact on collective negotiations or collective rights. In employee protection legislation such as this we are primarily concerned with the rights of individuals and disputes between employers and employees relating to individual rights. For that reason I would urge the Minister not to accept these amendments. I understand where they are coming from but on balance we should stick to the approach embodied in other legislation, such as the parental leave legislation.

I have no doubt about the work of the Labour Court and the tremendous work it has done in particular in recent times. The reasons I would have for sticking to my position is that, first, the Employment Appeals Tribunal has experience of dealing with parental leave and maternity leave. Second, I would agree with the point made by Deputy Broughan that the tribunal is best placed to address these sensitive issues. The tribunal has traditionally dealt with individual rights issues while the Labour Court, as Deputy Broughan stated, has dealt with more of the interests, like trades unions collective bargaining issues. For that reason I would strongly advocate sticking to the current position. I do not propose to accept any of these amendments.

Will the Minister of State clarify one point? Presumably any dispute which relates to entitlements under this Act or to any matter arising or related concerning these entitlements may be referred to a rights commissioner. That is what we are providing for, is it not?

That is the first place, at that stage, for the appeal.

I fully accept what the Minister of State is saying, but, obviously, one hopes this process would not be needed. It is important, however, if people are in dispute that they can go to the Employment Appeals Tribunal in order that they can deal with it in the simplest way possible. Within that system there should be a way to deal with the matter speedily and it should not be in any way complicated. Is there much of a wait from the lodgement of a claim to a hearing?

I am aware that in recent times the waiting time has been reduced, but I will check the matter with the Employment Appeals Tribunal to make sure. It is a point that cases are dealt with speedily. The history of the tribunal in dealing with such cases is strong. It is very experienced in dealing with maternity and parental leave cases.

It is very important that the appeals process is simplified. Those with a case can be intimidated by much legal matter. If there is a justifiable case, there should be a time limit within which it could be heard. Information on this process should be made available in order that people are aware that it can be availed of, rather than being intimidated, as is often the case. They should be aware of its accessibility if, for example, there is an irretrievable breakdown in negotiations.

The whole thrust of the Employment Appeals Tribunal is to be simple, informal and speedy and people can represent themselves or be represented by a trade union.

It is important that they can be represented as far as they can.

Amendment, by leave, withdrawn.
Amendment No. 49 not moved.

I move amendment No. 50:

In page 17, subsection (2), line 5, to delete "6" and substitute "4".

Amendment agreed to.
Amendments Nos. 51 to 62, inclusive, not moved.

I move amendment No. 63:

In page 17, subsection (6), line 29, to delete "it applies" and substitute "they apply".

Amendment agreed to.
Amendment Nos. 64 and 65 not moved.
Section 20, as amended, agreed to.
SECTION 21.

I move amendment No. 66:

In page 18, subsection (2), line 7, to delete "26" and substitute "20".

This amendment relates to matters which may be the subject of a decision or determination by the rights commissioner or tribunal, respectively. Among the matters which may be so decided is the granting of carer's leave of such time and length as may be specified in the awarding of compensation of up to 26 weeks, the maximum period which the amendment seeks to reduce to 20. I understand from the debate so far that the compensation is based on the entitlement to carer's leave per week. With reference to discretion within that period up to 26 weeks, what is the deciding factor?

The figure of 26 weeks is based on the length of carer's leave at 65 weeks and parental leave at 14 weeks and in line with other employment rights legislation. Accordingly, I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 67:

In page 18, subsection (4), line 15, to delete "design" and substitute "decision".

Amendment agreed to.
Section 21, as amended, agreed to.
Sections 22 and 23 agreed to.
SECTION 24.

I move amendment No. 68:

In page 19, lines 9 to 30, to delete subsections (1), (2) and (3) and substitute the following:

"(1) A notice or other document under Part 4 shall be, subject to subsection (2), addressed to the person concerned by name, and may be served on or given to the person in one of the following ways-

(a) by delivering it to the person,

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address,

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides, or in a case in which an address for service has been furnished, to that address,

(2) For the purposes of this section, a company, within the meaning of the Companies Acts, 1963 to 1990, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.".

This is a technical amendment.

Amendment agreed to.
Section 24, as amended, agreed to.
Sections 25 to 28, inclusive, agreed to.
SECTION 29.

Amendments Nos. 70 and 71 are cognate on amendment No. 69. All three may be discussed together.

I move amendment No. 69:

In page 21, line 8, to delete "paragraph" and substitute "subparagraph".

This is a technical, drafting amendment.

Amendment agreed to.
Section 29, as amended, agreed to.
SECTION 30.

I move amendment No. 70:

In page 21, paragraph (b)(i), line 27, after “following” to insert “subparagraph”.

Amendment agreed to.

I move amendment No. 71:

In page 21, paragraph (b)(ii), line 36, after “following” to insert “subparagraph”.

Amendment agreed to.
Section 30, as amended, agreed to.
SECTION 31.
Question proposed: "That section 31 be deleted."

It is proposed to delete section 31 which proposes to amend the terms "carer" and "relevant carer" in the Social Welfare Act, 1993. This amendment has since been overtaken by the Social Welfare Act, 2001. That deals with matter which we are happy to leave to the Department concerned.

Are there ramifications for other issues addressed in the Bill?

I am told that it broadens the definition.

Question put and agreed to.
SECTION 32.
Question proposed: "That section 32 stand part of the Bill."

This section places an obligation on employers regarding records and creates an offence in respect of the contravention of this obligation. Who inspects the register? Also, there may be duplication of notification when someone goes on leave. This would help to keep a record regarding the inspection of records. In the interests of transparency, it would also be good to have a cross-check from a departmental point of view. The person taking leave would also have a copy of the record in the employer's office.

The inspectorate of the Department would check the records.

From which office?

The labour inspectors.

Is that the office which checks the minimum wage? Will the same personnel be involved?

Question put and agreed to.
Sections 33 and 34 agreed to.
NEW SECTION.

I move amendment No. 72:

In page 24, after line 20, to insert the following new section:

"35.-The Minister shall, not earlier than 2 years and not later than 3 years after the commencement of this Act, after consultation with persons whom he or she considers to be representative of employers generally and persons whom he or she considers to be representative of employees generally, conduct a review of the operation of this Act and shall prepare a report in writing of the findings of the review and shall cause copies of the report to be laid before each House of the Oireachtas.".

I refer to the template my party has used to review the performance of the legislation. There was a provision in the parental leave legislation for a review. We want the Minister to conduct a review not earlier than two years and not later than three years after the commencement of this Bill and after consultation with employers and representatives of employees and the trade union movement. The House should have an opportunity to review the performance of carer's benefit.

The Minister of State said that 150 people had successfully applied for carer's benefit and taken leave without the protection of this legislation. The Minister for Social, Community and Family Affairs, Deputy Dermot Ahern, told the Joint Committee on Family, Community and Social Affairs and the House that he expects approximately 5,000 people to apply for carer's benefit. There are approximately 100,000 carers, of whom 17,000 are covered by carer's allowance. It is projected that there will be an increase of 4,000 or 5,000 this year under the new revision of the means disregard to £250 and £150 per week. It is hoped carer's benefit will enable a significant number of carers to look after people with a disability, children, senior citizens, or spouses in difficult circumstances. It is important to have a complete review of the legislation. I commend the Minister of State on his negotiations with representatives of the trade union movement and carers. He has come a long way towards meeting some of our concerns.

The Bill was restrictive when first published. We hope the amendments which have been accepted and those we will table on Report Stage will ensure people do not feel they cannot leave their careers or jobs for a period. I ask the Minister of State to accept the amendment, which is along the lines of the parental leave legislation. We want to have an opportunity for a full discussion in the House of how the legislation is operating.

This is important legislation which will allow carers to take breaks from their jobs. There are more than 50,000 full-time family carers who save the State a considerable amount of money. A job sharing scheme is also being introduced which allows people to work ten hours. This may be extended as it gives people a unique opportunity. Those in receipt of carer's allowance do not receive a huge sum of money. The fact that people can job share and work only three days a week may, however, help more people to avail of the scheme. It is important to review the operation of the legislation, even on a yearly basis, to find out how many have availed of it. I have spoken to some of the departmental officials who have clearly indicated that the scheme will be user friendly. A large number need to take a break from their jobs and careers and the Bill will allow them to become temporary carers without loss of employment. People lost their jobs when they took leave in the past and there were no guarantees that they would be re-employed. This is a good Bill.

I was asked at short notice to take this Bill today and appreciate the select committee's tolerance. I would appreciate if the Minister of State considered a review of the legislation. There is no point in civil servants doing all the work if the legislation is not reviewed. The Bill will lead to many more entitlements.

The Deputy did well having been thrown in at the deep end. That is his normal performance. I support much of what has been said about the Bill, particularly in relation to the many benefits which will accrue. We all recognise the tremendous work done by carers in the community. As regards a review of the legislation, can the Minister of State or his Department indicate the type of review required when the legislation is in place, given that additions or subtractions may be necessary? What commitment can the Minister of State or his Department give in this regard? Will it be necessary to insert a new section?

Monitoring groups have been established. I give the select committee a commitment to establish a monitoring group on an administrative basis similar to the one established under the Organisation of Working Time Act within six months of the enactment of the Bill. I will accept the amendment. I am not sure if the wording is precisely what I would like it to be and we may need to come back to it on Report Stage. The work of the select committee has been done efficiently. The review process is important in new legislation. My officials advised me to oppose the amendment, but I will accept it in the spirit of the select committee and the points made. I hope Deputy Broughan accepts that we may need to adjust the wording on Report Stage.

I thank the Minister of State. I also thank the staff and the officials from the Department, particularly for the profound briefing they gave me before Second Stage which helped me to understand some aspects of the legislation I did not understand. I thank the Minister of State for bringing forward the Bill. What is its timeframe? Carers wish it had been passed last year, although I am aware that we are doing our best now. Will it be passed by 1 June?

We, on this side of the House, are trying to sneak in legislation, subject to availability. I accept the Deputy's frustration about some of the problems and delays. We also experience that frustration. We hope to bring the legislation before the Seanad as soon as possible, preferably the first week in May.

The timescale is important. It is important for the Bill to be passed before the Dáil goes into recess for the summer. I have been contacted by a large number of people in that regard. If the Bill is not passed before the summer, it will not be passed until later in the year. That would be regretted by many. I appeal to the Minister of State to consider the matter. The Bill, which is necessary, has far reaching implications. It should receive preferential treatment. Everyone associated with it will want to accelerate its passage, where possible. If we send out a message that the Bill is expected to be passed before the summer recess, it would encourage people to take time off.

The Stadium Ireland Bill is being rushed through the House like a juggernaut. This is important legislation which is being left on the backburner.

I am delighted to note that the Deputy has the right name of the Bill. I congratulate him.

Amendment agreed to.
Title agreed to.
Bill reported with amendments.

I wish you, Chairman, and the Minister well in the traumatic discussions.

I thank Deputies Broughan and Perry for their co-operation and success in tabling amendments which will enhance the Bill. I also thank them for their contribution to today's debate. I further thank the Minister of State, Deputy Tom Kitt, and his officials, Mr. Bill Jestin, Mr. Michael Pender, Ms Lynda Finneran and Ms Evelyn Daly. I am delighted that there were a few northsiders around to help progress the Bill. When the northside Clerk to the committee joined us, Mr. Faherty, we moved more quickly. I thank the northsiders concerned. I thank Mr. Faherty and all the administrative and supporting staff for helping us to deal with the Bill effectively and speedily.

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