I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, and his officials. The purpose of the meeting is to consider the Maternity Protection (Amendment) Bill 2003.
Maternity Protection (Amendment) Bill 2003 [Seanad]: Committee Stage.
Amendment No. 1 is in the name of Deputy McGrath. Amendments Nos. 2 to 5, inclusive, and Nos. 7, 8, 10 and 11 are related. They may all be discussed together. Is that agreed? Agreed.
I move amendment No. 1:
In page 5, lines 18 and 19, after "terminate" to insert "or postpone".
I welcome back the Minister of State who is in full health and ready to go again. He will be glad to know we did not operate without him last week as we could not do without him.
The amendments I propose are all in the same vein. Amendment No. 1 proposes to substitute the word "terminate" with "postpone". To terminate means to wipe out something, or final. To postpone means to delay.
One of the reasons I am suggesting the amendment is that maternity leave is important for working mothers to enable them to take time off when their babies are born. However, during the years the conditions have changed. The period of leave has been extended, with the option of taking 24 weeks, the final six, regrettably, unpaid. Perhaps that could be the subject of another debate. Why should it be unpaid? I am sure Deputy Hoctor would support me on a proposal that one should be paid for the entire period of maternity leave. Not to do, in effect, is to discriminate against women.
We all aspire to that.
I thank the Chairman. I am glad to receive his support on that important issue. When it comes to a vote in another forum, perhaps we will bring him on board in that regard. Having said that, in the society in which we live we have to be as supportive as possible of women on maternity leave. Hence, I am reluctant to see leave being terminated if they wish to have it postponed.
From memory, I believe there is a provision in place for teachers. Perhaps some of the teachers present may clarify the matter for me. If a second level teacher, for example, has a baby during holiday time, say, in the first week of June, normally the period of maternity leave will run for 18 weeks to October but because of an interesting court decision which held that because teachers were entitled to holidays in June, July and August, an additional 12 weeks is added with the result that the actual period of maternity leave will legitimately run from June to well into January as the Christmas holidays are also included. Hence many teachers, possibly by design, have been able to plan to have their babies towards the early part of summer to give them extra leeway.
Is that Fine Gael policy?
I am all in favour, although, unfortunately, I am now past it. It is unique to the teaching profession.
That brings me to the suggestion that it should be possible to postpone the taking of maternity leave until the mother decides on a more opportune time. It is an interesting point, particularly when one bears in mind what happens in the case of the teachers resulting from a decision in a court case. I cannot recall the name but the case dates back 25 years, long before I became a Member of the House, at which stage some of the younger members of the committee would have had no interest in such matters.
I would like to know what the Minister of State's thinking is. In the light of the strong argument I am making, he might be in a position to accept the amendment.
I have to confess I am not familiar with the case to which the Deputy referred. I will certainly have a look at it but suspect the decision might have been based on an interpretation of the contract of employment of teachers which, of course, would be specific to them. However, that is just guesswork on my part.
As regards the group of amendments under discussion, the maternity review group recommended that:
In the event of illness, an employee should, subject to the agreement of the employer, be able to transfer from additional maternity leave to sick leave. If an employee transfers from additional maternity leave to sick leave, she will forfeit her right to any additional maternity leave not taken at the date of commencement of the sick leave.
This forms part of a composite set of recommendations made by the working group following negotiations between the social partners and Departments. To depart from it would be a significant variation of the package of compromises agreed, even if it was allowed legally.
The effect of a transfer from additional maternity leave to sick leave on the entitlement to the balance of the additional maternity leave was considered in some detail by the working group. In this regard, it was noted that the European Court of Justice had stated in the case of Margaret Boyle and othersv. the Equal Opportunities Commission, case reference C411/96: “In order for a woman on maternity leave to qualify for sick leave, she may be required to terminate the period of supplementary maternity leave granted to her by the employer”. Where an employee terminates additional maternity leave in order to have her absence from work treated in the same manner as any other absence from work due to sickness, she may benefit from payment in respect of sick leave, depending on the sick leave arrangements available under her contract of employment, whereas an absence from work on additional maternity leave does not attract any payment.
The pregnant workers directive prohibits the dismissal of an employee from the beginning of her pregnancy to the end of her maternity leave, save in exceptional circumstances not connected with her condition. The Maternity Protection Act extends this protection to the end of the additional maternity leave period. An employee is, therefore, protected from dismissal in respect of pregnancy related sick leave from the beginning of the pregnancy to the end of the maternity-additional maternity leave period. Therefore, it is necessary to include in the Bill a mechanism to deal with a situation where an employee falls ill and wishes to benefit, with the employer's agreement, from sick leave arrangements rather than unpaid additional maternity leave. She must, however, forfeit her right to the untaken additional maternity leave. Otherwise, in view of the legal protection provided up to the end of the additional maternity leave period, employers will not agree to allow employees to split their additional maternity leave due to the risk of potentially extending maternity protection for the duration of a prolonged period of sick leave. The maternity review group, which included employer and employee representatives, clearly recognised the legal consequences of the transfer from additional maternity leave and its recommendation that the leave must be forfeit was, accordingly, incorporated into the Bill.
On amendments Nos. 3, 7, 10 and 11, the recommendations of the maternity review group are that an employee may transfer to sick leave if the employer agrees — provided for in section 6 — or may postpone maternity leave or additional maternity leave in the event of hospitalisation of the child if the employer agrees — provided for in section 7. Amendments Nos. 3, 7, 10 and 11 appear to take away the employer's option to refuse. However, the working group clearly recognised that any facility to transfer from additional maternity leave or postpone maternity leave or additional maternity leave could involve cost and have other practical implications for employers. For example, an employer would often employ or redeploy a replacement for a fixed term up to the end of the additional maternity leave period.
In order to alleviate any difficulties which these proposals may create for employers, the working group considered that any option to transfer from additional maternity leave to sick leave, or to postpone maternity leave or additional maternity leave, should be subject to agreement between the employer and the employee. As far as I can recall, the Bill, as initially drafted, provided that would be a matter totally at the discretion of the employer. However, as a result of discussion in the Seanad, we changed the wording in order that it should be by agreement between the employer and the employee. While the amendments in the name of Deputy McGrath would improve the position of a pregnant worker, I regret that I cannot accept them.
I thank the Minister of State for his comprehensive response. The phrase used in respect of a pregnant worker is perhaps slightly wrong.
There are two issues arising from what the Minister of State said. In the case of the first of my amendments which propose to substitute the word "terminate" with "postpone", the Minister of State is really saying it comes down to money; that he does not want to meet the additional cost that may accrue, either to the State or an employer, and that on this basis he is not prepared to accept them. Does the concept of maternity benefit not relate to giving a mother the opportunity to spend time with her new baby? Was that not the purpose in the first place, that the mother would have the opportunity — if not the energy — to go through the important stages of bonding, etc., with her new baby? What happens if the woman concerned is ill, arising from the birth or other reasons, and does not have the opportunity to do this? Sometimes mothers experience depression following child-birth and may have to be hospitalised. By not accepting the amendment is the Minister of State terminating that mother's opportunity to spend quality time with her newly born baby and forcing her either to take the prescribed period as sick leave or return to work? This is an important concept at which perhaps the Minister of State should look.
The second issue relates to the Minister of State's examination of the other amendments which propose to substitute the word "may" with "shall". I know well that any legislation in this area is fraught with difficulty from an employer's point of view as it disrupts normal working time, causes problems for them and can be a bit of a pain. One can see how employers would want to play hard ball in negotiating on this issue. A practical example which has been brought to my attention by a number of Members of the House and of which members of the committee might be aware is that of a secretary of a Deputy working in Leinster House or a constituency office. My secretary went on maternity leave. Her replacement entered the workforce at point 1 of the secretarial assistant pay scale, at present €18,731. In a Dublin constituency, in particular, and perhaps the Minister of State's constituency of Limerick East, it is impossible to find somebody with the competency required to do the work the Minister of State or I want to ask them do at that level of income.
While I can see from where the Minister of State is coming, there is a raft of issues which need to be looked at. We cannot always run the road with employers and have everything to suit them. The amendments in which I seek to substitute the word "may" with "shall" would put the onus on an employer to co-operate with somebody who finds herself in that situation. We must strengthen the benefits available to help young mothers to be successful and give them the opportunity to spend time with their new born babies. It is in that context that I have tabled the amendments.
Is the Deputy casting aspersions on the work secretarial assistants do when he says he cannot find a proper person for a salary of €18,000?
In no way am I so doing.
I just want to clarify that.
In fact, the replacement assistant I found is still working with me as part of a job-sharing arrangement. I hope that in the near future both will be working full time. I am saying many of my colleagues have great difficulty in finding a replacement on the salary offered when one of their secretaries goes on maternity leave. There was a change made to the Civil Service code. Up until October 2002 salaries were age related with the result that a 25 year old, for example, was placed on a higher point of the scale but that has all changed. Everyone must now start at point 1. In our case, about which we know best, experience counts. There should be an opportunity, therefore, to be placed several points up the scale based on the experience gained in other employment. I hope this point will not be misinterpreted.
I am sure that when the Minister of State is appointed Minister for Finance, he will take that on board.
I support Deputy McGrath on amendment No. 3, to make the wording affirmative by inserting the word "shall". I would even go further and add after the word "concerned" in line 27, the words "unless there is a legitimate operational justification for refusing this request". By making it definite an employer would have to give a legitimate reason for a refusal. This is based on section 6 of the submission from the Free Legal Aid Centre which suggested that this change would make the legislation tighter and better in this instance.
While I fully understand what the Deputies are saying, we need to bear in mind that from one point of view this section is inserted to benefit the employee because it refers to additional unpaid maternity leave. If this facility was not included in the legislation to allow women to take sick leave during the period of additional maternity leave, they would simply have to remain on unpaid additional maternity leave until it expired. They are benefiting by allowing them to take sick leave to take advantage of whatever sick leave arrangements the firm has in place.
On the surface it seems harsh or cruel to remove a woman's unused additional maternity leave if she happens to go sick. The difficulty is that EU law has determined by way of directive and case law that an employee who becomes pregnant is protected from dismissal until the end of the period of her maternity leave. Irish legislation added that she is protected, not just to the end of the period of paid maternity leave but also to the end of the period of unpaid maternity leave, 26 weeks in total. We are saying that if someone on additional maternity leave falls ill, she can, with the agreement of her employer, avail of the sick leave arrangements provided she gives up the unused part of her additional maternity leave. If an employer is faced with a situation where someone is out for a long time on sick leave and has unused maternity leave, he or she can do nothing.
I take the point made by Deputies McGrath and Ó Snodaigh about compulsion and use of the word "shall" etc. but while we are in the position where the employer must agree, no employer, particularly a small one, would agree. It would be most unreasonable if we compelled an employer to accept such a condition. The recommendations of the working group represent a compromise. Employee representatives, trade union representatives, employers' representatives and the social partners were all represented in the group and they, effectively, arrived at a compromise.
While I can accept amendments to the Bill — I accepted some in the Seanad which modified some of its terms — I cannot accept an amendment which would unilaterally disimprove the position of one of the parties to a carefully negotiated agreement. However, I recognise the force of the arguments made and will look at the case in respect of teachers, with which I am not familiar. It may be connected to their specific contract of employment but subject to that review I would mislead the committee if I said I would accept these changes. There may be something in Deputy McGrath's reference to the teachers' case that might cause me to change my mind but otherwise I intend to leave the Bill as it is.
I move amendment No. 2:
In page 5, line 22, after "terminate" to insert "or postpone".
I move amendment No. 3:
In page 5, line 25, to delete "may" and substitute "shall".
I move amendment No. 4:
In page 5, line 25, after "terminate" to insert "or postpone".
I move amendment No. 5:
In page 5, line 28, after "terminate" to insert "or be postponed".
We now proceed to amendment No. 6. Amendments Nos. 14, 16 to 18, inclusive, 24, 25, 27 to 30, inclusive, are consequential while amendments Nos. 15 and 26 are related. They may all be discussed together.
I move amendment No. 6:
In page 5, line 36, to delete "14B(9)(b)” and substitute “14B(8)”.
This deals with the situation in which someone on maternity leave returns to work during the period of that maternity leave. The amendments to which the Chairman referred arise because the text of the Bill, in so far as it relates to the postponement of maternity leave or additional maternity leave for mothers under section 7 and fathers under section 12, is likely to present a difficulty for employees in the practical application of certain notification provisions.
Section 7(4)(c) and section 12(3)(c) provide that postponed leave must be taken in one continuous period commencing not later than seven days after the discharge of the child from hospital. However, sections 7(9) and 12(8) provide that the employee must give one week’s notice to the employer of his or her intention to resume leave. In practice it will prove impossible to comply with for many, as patients are often discharged from hospital at short notice, requiring, particularly in the case of a baby or small child, the immediate presence of the mother or father to care for the child at home. The notification procedures in sections 7(9) and 12(8) require amendment in order to provide more flexibility for employees in this situation. Consequently, I propose to remove the existing notification requirements contained in sections 7(9) and 12(8) by the deletion of those subsections and the incorporation of a more flexible notification requirement in subsections 7(8) and 12(7), respectively. As a result of the amendment, employees will be required to notify their employers of their intention to resume the untaken portion of their maternity leave and/or additional maternity leave as soon as reasonably practicable but not later than the day on which the leave begins.
The amendment gives rise to several consequential amendments, mainly to amend existing cross-references. The consequential amendment to section 20 is required to reflect the amendments to sections 7 and 12 by ensuring the amended notification provisions link in with the protections afforded for the employee under that section. This is a measure to improve the Bill to provide for the situation where somebody returns to work while his or her child is in hospital and wishes to resume maternity leave when the child comes out. As the legislation was originally drafted, that required one week's notice. Now we are allowing the parent to give notice right up to the day on which he or she wants to take the rest of the leave because a child is often discharged at short notice from hospital and it may be necessary for the parent to go home immediately.
I move amendment No. 7:
In page 5, line 40, to delete "decision in relation to the" and substitute "acceptance of the employee's".
I move amendment No. 8:
In page 5, line 54, after "termination" to insert "until such later date as is agreed with her employer".
I move amendment No. 9:
In page 6, to delete lines 18 to 25.
Section 7(2) provides that an employee may make a request to postpone part of her maternity leave with effect from a date she selects only if the period of maternity leave taken by her on that date is not less than 14 weeks and not less than four of those weeks are after the end of the week of confinement.
The pregnant workers directive, 92/85/EEC, provides for a continuous period of 14 weeks maternity leave allocated before and/or after confinement in accordance with national legislation and/or practice. The Attorney General's office has been consulted about this matter and advised that the directive does not allow for the splitting of the 14 week maternity leave period. Implementation of the directive may not have the effect of reducing the level of protection already provided in member states on the date the directive was adopted. As the Maternity Protection of Employees Act 1981 provides that the maternity leave period shall not end earlier than four weeks after the end of the expected week of confinement, it is not possible to reduce this level of protection. Consequently, the pregnant workers directive, effectively, prevents the deletion of section 7(2) and for that reason I cannot accept the amendment.
Deputy Costello referred to the submission of the Free Legal Aid Centre. While it recognised the pregnant workers directive, it pointed out that it was a minimum harmonisation directive, which means any member state can introduce more favourable conditions. It also asked if the European Commission had been consulted in this regard. The Minister said the intention was to mirror section 7 of the Parental Leave Act. According to the Free Legal Aid Centre, the review group has a problem with the provision contained in that Act, which would mean a flawed provision would continue. We should ensure the legislation we produce is the best possible. If we have an opportunity to go beyond the European directive, we should do so.
If memory serves me correctly, the advice referred to by Deputy Ó Snodaigh relates to a different section of the Parental Leave Act, not to this section.
Regarding the more general point about the European directive being minimalist, that is true. One could introduce more favourable measures here. Nothing would preclude us from doing so but we are precluded from introducing less favourable measures. We asked the Attorney General's office about this and it has taken the view that to accept the amendment as proposed would mean the situation of a pregnant worker would be less favourable and that less protection would be afforded to them. The idea of having a continuous period of 14 weeks maternity leave means that for 14 weeks after confinement the woman concerned is supposed to be out of work. If one allowed this period to be split, whether at the behest of the employer, the employee or anybody else, the Attorney General's office takes the view, based on case law, that this would be a diminution of the protection provided which is not allowed by the European directive.
Deputy Costello may bring up the matter on Report Stage.
I move amendment No. 10:
In page 6, line 36, to delete "may" and substitute "shall"
I move amendment No. 11:
In page 7, line 22, to delete "decision in relation to the" and substitute "acceptance of the employee's".
Amendments Nos. 12 and 13 are related and may be discussed together.
I move amendment No. 12:
In page 7, lines 29 to 36, to delete all words from and including "sickness," in line 29 down to and including "notification" in line 36 and substitute "sickness".
These amendments seek to reverse the mechanism of the Bill. As the Bill is drafted, an employee is automatically put on resumed leave when she goes absent due to sickness, unless she decides to avail of sick leave and forfeit the remaining untaken maternity leave or additional maternity leave. The Deputy's amendment would put the mother on sick leave — the reverse — and the resumed leave would remain to be taken at some indefinite point in the future before which she may take a prolonged or indefinite period of sick leave. No employer would be willing to agree to a postponement of leave in the first place knowing that this level of uncertainty would arise. We are providing flexibility for new mothers in employment who find themselves in the particularly difficult situation where their new baby is in hospital. The Deputy's amendment would discourage employers from agreeing to the new flexible postponement provisions. For legal reasons, it is necessary for the employee to choose to take or forfeit resumed leave.
The pregnant workers directive prohibits the dismissal of an employee from the beginning of her pregnancy to the end of her maternity leave, save in exceptional circumstances not connected with the employee's condition. The Maternity Protection Act 1981 extends this protection to the end of the additional maternity leave period. The European Court of Justice has held in a series of cases that the dismissal of a female worker on account of pregnancy, or essentially on account of pregnancy, can only affect women and, therefore, constitutes direct discrimination on grounds of sex. An employee is, therefore, protected from dismissal in respect of pregnancy related sick leave from the beginning of the pregnancy to the end of the maternity leave period. Therefore, it is necessary to include in the Bill a mechanism to deal with a situation where an employee falls ill after she has returned to work temporarily. She must resume her maternity leave and/or additional maternity leave, as appropriate, or forfeit her right to the leave. Otherwise, in view of the legal protection provided to the end of the additional maternity leave period currently available, employers will not allow employees to postpone, that is, split their maternity leave, due to the risk of potentially extending maternity leave for the duration of a prolonged or indefinite period of sick leave.
Section 7(6) is constructed in order that an employee who has returned to work temporarily due to the hospitalisation of her child and who is then absent from work due to illness must, at the time she notifies her employer of her illness in the normal way, also indicate she is taking sick leave. Otherwise, she will be automatically deemed to be on resumed leave. The construction leaves the option with the employee, of choosing either resumed leave or sick leave.
Deputy Costello may bring forward this amendment on Report Stage.
I move amendment No. 13
In page 7, lines 41 to 43, to delete all words from and including ", and" in line 41 down to and including "leave" in line 43 and substitute the following:
"unless the employee notifies the employer in writing that she wishes to commence resumed leave on the first day of such absence".
I move amendment No. 14:
In page 8, line 4, to delete "subsection (11)" and substitute "subsection (10)".
I move amendment No. 15:
In page 8, line 7, to delete "in accordance with subsection (9)" and substitute the following:
"as soon as reasonably practicable but not later than the day on which the leave begins".
I move amendment No. 16:
In page 8, to delete lines 9 to 37.
I move amendment No. 17:
In page 8, line 38, to delete "subsection (9)" and substitute "subsection (8)".
I move amendment No. 18:
In page 8, lines 46 and 47, to delete "subsections (8) and (9)" and substitute "subsection (8)".
I move amendment No. 19:
In page 9, lines 17 and 18, to delete "(other than the last 3 classes in such a set)".
While I recognise the value of the amendment to pregnant employees, nevertheless it is inconsistent with the recommendation of the maternity review group which was the result of compromise reached on this issue by its members who included employers, employees etc. and representatives thereof. Therefore, I cannot accept it as it would unilaterally impose additional costs on employers.
The working group recommended that provision be made in legislation or regulations for paid time off from work for mothers to attend one complete set of antenatal classes. It was recommended that at least three of the classes should be taken during the preconfinement maternity leave period. Women on their first pregnancy are encouraged to attend a complete set of antenatal classes which typically consists of six to eight classes of two to three hours duration each. The current position is that employees are not entitled to any paid time off to attend such classes.
Employers' representatives at the working group agreed to a number of recommendations, including this one, which have direct cost implications for them. The compromise reached was that employers would pay employees for time off to attend antenatal classes, with the exception of the final three. Time off to attend those three classes, some of which may be taken during the preconfinement maternity leave period, will be at the employee's own expense, unless the employer agrees otherwise. The latter is often the case, depending on the size and resources of the company involved.
I support the amendment. I am in favour of a similar deletion from subsection (2) which concerns the right of the expectant father to attend the last two antenatal classes in a set of such classes. People should have the right to attend such classes. If the Bill, as it stands, is passed, hospitals will organise classes of longer duration and attempt to ensure all of the required information is included in three classes in order that workers, particularly low paid female workers, can attend. It would also mean that the women concerned would attend the classes instead of not doing so because they would lose out financially due to not being present at work. These classes will otherwise be held at night or be of longer duration. Anyone who has attended such classes will be aware that there is a great deal of information to be gleaned from them. It would be a pity if all of that information was compressed into full day sessions. Essentially, what would happen is that there would be three full day sessions during the period of a pregnancy.
Expectant fathers should be entitled to attend with their partners for the duration in order that they can understand what is happening. It is only one set of classes in the case of an expectant father, whereas expectant mothers have the right to attend one or more sets. Most mothers I know would not avail of the full set of classes. Once mothers have undergone one set, they will I hope have learned about their needs and those of their children. However, people sometimes forget or want to obtain the most up-to-date information and will, therefore, probably attend more than one set of classes.
I hope Deputy Costello's amendment will be accepted. I am also hoping the restriction relating to expectant fathers will be removed.
The position of expectant fathers is another day's work, a matter with which the Deputy may deal on Report Stage. I am sympathetic to the amendment. I represent the same constituency as Deputy Ó Snodaigh and I am aware of women who work right through their pregnancies. The Minister of State represents a similar constituency.
I understand the points being made. However, I do not agree with Deputy Ó Snodaigh's interpretation. I am advised that a typical set of classes consists of six to eight classes of two to three hours duration each. If I understand the Deputy correctly, he stated women would not take the full set.
Low paid workers will not take the full set because they would lose out financially. In the case of a second pregnancy, some women may wish to take classes to remind themselves of the specifics involved.
I understand from where the Deputy is coming. People might be aware that the Adoptive Leave Bill which contains mirror provisions for those who adopt children is being introduced in the Seanad on Thursday. We have provided in that Bill that pre-adoption parenting classes will be paid for by employers. The position at present is that employers are not obliged to pay for anything. A meeting took place between all of the representatives involved in this area and, following much hard bargaining, employers agreed to pay for a full set of classes, minus the final three. I am not in a position to unilaterally change this because it was the result of a compromise agreement. However, in view of what appears to be a consensus of opinion here, we will certainly consult the relevant persons to see if it is possible to change the agreement. I will indicate on Report Stage the results of those consultations.
I am not 100% clear on what is involved in subsection (3). From my reading of it, members of the Defence Forces will be debarred from the rights being bestowed on expectant mothers and fathers in respect of antenatal classes. There are a number of questions which arise in regard to these exclusions. For example, is it the right of a female member of the Garda Síochána who is serving overseas, presumably in a peacekeeping capacity, or a member of the Defence Forces who is engaged in operations in aid of a civil power to attend antenatal classes?
The exclusions to which the Deputy refers provided for in paragraphs (a) and (b) were included in the Bill on Committee Stage in the Seanad at the request of the Defence Forces to ensure their operations abroad or in Ireland would not be compromised as a result of the new rights provided for under this section. They have stated it could be difficult to facilitate members of staff on such missions who wish to exercise their right to attend antenatal classes. The exclusions should not have the effect of preventing pregnant members of the Defence Forces from exercising their rights as it is unlikely they would be engaged in duties of this nature.
I move amendment No. 20:
In page 11, lines 5 to 7, to delete all words from and including "where" in line 5 down to and including "employer" in line 7.
Section 9 deals with the issue of time off for and facilities relating to breastfeeding. There is no provision in the legislation regarding facilities for women to breastfeed in the workplace. Such matters are left entirely at the discretion of employers. This makes it too easy for them to side-step obligations they might have under the section.
The amendment proposes the deletion of the phrase "where facilities for breastfeeding are provided in the workplace by her employer". As the Minister of State will introduce regulations, there is no need to include that phrase in the legislation. This matter should be considered in the context of making the regulations. Perhaps the Minister of State should call on employers to make more effort to provide facilities for women who are breastfeeding.
It is not true to say there is no obligation on employers and that matters are left entirely at their discretion. Section 9 inserts a new section 15B in the principal Act and states an employee who is breastfeeding shall be entitled, without loss of pay, at the option of her employer, to avail of the provisions of either paragraph (a) or (b) which are linked. If the employer does not provide breastfeeding facilities in the workplace, he or she is obliged to offer the employee reduced hours for the purpose of breastfeeding her child. This construction ensures that if the employer opts to allow breastfeeding breaks in the workplace, he or she must provide appropriate facilities.
The Deputy's amendment, while well intentioned, could weaken the breastfeeding provisions in the Bill because it would give the employer discretion to offer breastfeeding breaks which, in the absence of facilities, would be of no benefit to a breastfeeding employee. In many employments, for example, a high street café or a small business with limited space, this could result in the employee not being able to exercise her right to breastfeed in the workplace, forcing her to abandon her entitlement to breastfeed entirely.
That is one possible interpretation. However, if the Minister of State intends to make regulations on the matter, this would give him the opportunity to set out conditions under which breastfeeding facilities should be provided. Perhaps it should be related to the number of employees in the company. The legislation, as it stands, makes it easy for employers to avoid having to provide a facility. That is our concern.
It is very difficult for a small shop or business to provide facilities.
Amendment No. 21 is in the name of Deputy Costello. Amendment No. 22 in the name of Deputy McGrath is an alternative. In order that we can discuss the alternative, I ask Deputy McGrath to move amendment No. 21. Amendments Nos. 21 and 22 will be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 21:
In page 11, to delete lines 13 to 17.
My amendment also deals with the provision of facilities. Section 15B(2) states: "An employer shall not be required to provide facilities for breastfeeding in the workplace if the provision of such facilities would give rise to a cost, other than a nominal cost, to the employer". We suggest that this should be tidied to read "if the provision of such facilities would give rise to an unduly burdensome cost". What is a nominal cost? In most senses, nominal means €50 or €100. However, the phrase "an unduly burdensome cost" means an employer should find out what the cost would be and what facilities are needed before deciding whether it——
Whether it is reasonable or whether he or she can afford it.
Yes. The section, as it stands, provides too easy an opt-out.
On the same point, the notion of nominal cost leaves the matter unclear. If we are not to delete the provision, as suggested in Deputy Costello's amendment which I would probably support, at least we should have some cost framework. Deputy McGrath's wording might suffice. As it stands, the provision allows an employer an escape clause. For example, can the cost involved in providing a partition be described as nominal? As the Chairman said, providing a partition or separating an area of a café would involve more than a nominal cost because of the ongoing effect. Any screened off area or quiet room in a business involves more than a nominal cost, especially in today's terms where a builder must be brought in to make alterations.
The difficulty is that the term "nominal cost" was not dreamed up by us. It has been included in the Employment Equality Act for the past six years and interpreted on a number of occasions. It depends on the context. It has been interpreted by equality officers whose interpretation has been generous.
The difficulty is that in a case relating to the Employment Equality Bill the Supreme Court has ruled on constitutional grounds that one can only place social obligations in the public interest on private property owners where no more than a nominal cost will be incurred. This judgment has been reflected in the wording used in section 15B(2). In framing this provision legal advice was sought on whether we could go beyond the Supreme Court ruling. The advice was that we may not. Where an employer does not provide facilities for breastfeeding in the workplace, in order to avoid costs in excess of what may be considered a nominal cost, in the Bill he or she is compelled to agree to a reduction in working hours for the employee. The employer must either provide facilities, whether under or above a nominal cost, or give time off.
The only place where the concept of nominal cost, found throughout equality legislation, is changed is the Employment Equality Act in so far as it relates to employers making provision for disabled workers. We can go beyond the concept of nominal cost in that legislation as a result of a European directive as our advice is that the directive supersedes the Supreme Court judgment on that particular aspect. However, on every other aspect, including what we are discussing, the Supreme Court judgment which I think relates to Article 43 of the Constitution in regard to private property prevails. The advice we have received from the Attorney General's office is that the terms of the Supreme Court ruling on a matter of constitutional law mean this is the phraseology we must use. However, if an employer is not in a position to provide breastfeeding facilities, he or she is obliged to allow the employee to take time off.
How far has the Equality Authority pushed out the definition of "nominal cost"? What quantitative value has it put on it? Does the Minister of State have any example of what it has done?
I do not have an example off the top of my head. My advice is that every case depends on the facts and context but the general view is that the Equality Authority has been generous in its interpretation of the phrase included in the 1996 Act. I can provide specific examples for committee members if they require them.
That would be useful.
I move amendment No. 22:
In page 11, lines 16 and 17, to delete all words from and including "a" where it firstly occurs in line 16 down to and including "employer" in line 17 and substitute "an unduly burdensome cost".
I move amendment No. 23:
In page 12, lines 10 to 19, to delete all words from and including "ending" in line 10 down to and including "confinement" in line 19 and substitute the following:
"of 8 weeks or until the end of the sixteenth week following the date of confinement, whichever is longer, but subject to sections 16A and 16B".
This is an amendment to which I would be sympathetic. However, it is a question of the delicate balance agreed to by the working party which, as I said, consisted of representatives from the various interest groups. The amendment proposed would, effectively, grant the father a minimum of eight weeks paid maternity leave. The maternity review group considered the period of maternity leave available and made recommendations to increase both maternity leave and additional maternity leave by four weeks each. These increases were immediately implemented in March 2001 and are available to bereaved fathers in certain circumstances, depending on the date the mother of the child dies. However, the group made no recommendation to increase the father's leave in this manner.
I am not in a position to accept an amendment which would provide a right, in some circumstances, to a significantly greater period of leave. I remind members that there is further leave available, 14 weeks unpaid parental leave, up to the time the child reaches the age of five years. The provision in the Bill was agreed to by the working group. Looking at it now, it strikes me that the additional cost would be small because such circumstances do not often arise. Perhaps we can consult further with the relevant parties to see if we can accede to the amendment. If they are willing to agree, we will make the appropriate adjustment.
Perhaps when he is examining the matter, the Minister of State will also look at the four week extension. In the social welfare context, payments generally cover six week terms, for example, when a person dies, his or her spouse is entitled to his or her pension for six weeks. Perhaps a six week rule should be established across all Departments, rather than having different entitlements in each. Will the Minister of State examine the matter in that light to see whether the provision could be adjusted?
I will speak to the appropriate individuals.
Do not ask the Minister for Social and Family Affairs to reduce her figure of six weeks to four.
This is a caring Government.
What about all of the cutbacks she is making?
I move amendment No. 24:
In page 13, line 36, to delete "section 16B(8)(b)” and substitute “section 16B(7)”.
I move amendment No. 25:
In page 16, line 9, to delete "subsection (10) and substitute "subsection (9)".
I move amendment No. 26:
In page 16, lines 11 and 12, to delete "in accordance with subsection (8)" and substitute the following:
"as soon as reasonably practicable but not later than the day on which the leave begins".
I move amendment No. 27:
In page 16, to delete lines 14 to 44.
I move amendment No. 28:
In page 16, line 45, to delete "subsection (8)" and substitute "subsection (7)".
I move amendment No. 29:
In page 16, lines 53 and 54, to delete "subsections (7) and (8)" and substitute "subsection (7)".
I move amendment No. 30:
In page 20, paragraph (a)(i), lines 29 and 30, to delete “sections 14B(12) and 16B(11)” and substitute “sections 14B(11) and 16B(l0)”.
I move amendment No. 31:
In page 21, to delete lines 1 to 6 and substitute the following:
"(a) if the period of resumed leave concerned is 4 weeks or less——
(i) at the same time as the relevant notification is given by the employee under section 14B(8) or 16B(7), as the case may be, or
(ii) if the employer waives the right to receive such notification, not later than the day on which the employee expects to return to work,
(b) if the period of resumed leave concerned is more than 4 weeks, not later than 4 weeks before the date on which the employee expects to return to work.”.
This is a technical amendment which is required to correct an omission in section 20 with respect to notification of intention to return to work from a period of resumed leave in a case where the employer had waived the right to receive notification from the employee of intention to take resumed leave. In other words, there is no provision for a situation where the employer was simply prepared not to insist on any sort of notification. Notification was more or less made compulsory, whether the employer wanted it. The purpose of the amendment is to remove this anomaly.
I thank the Minister of State and his officials for attending.