I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey, and his officials, to this meeting, the purpose of which is to consider Committee Stage of the Adoptive Leave Bill 2004. Amendments Nos. 1, 2, 4 and 17 are related and may be discussed together by agreement.
Adoptive Leave Bill 2004 [Seanad]: Committee Stage.
I move amendment No. 1:
In page 3, between lines 11 and 12, to insert the following:
"‘Order of 2004' means the Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2004 (S.I. No. 667 of 2004);".
Those four amendments are required to update the text of the Bill to take account of the Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2004 (S.I. No. 667 of 2004) which was made on 22 October last and debated by the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights on 12 October. The order increased the adoptive leave period by two weeks to 16 weeks with effect from 19 November 2004, and to maintain consistency between the leave provisions for natural and adopting mothers from the time a child is born or placed in their care, it was necessary to implement the increased adoptive leave entitlement by secondary legislation under the Adoptive Leave Act 1995 as soon as possible rather than wait for it to be implemented on the enactment of section 3 of the Adoptive Leave Bill of 2004.
The provisions of the 2001 and 2004 orders are incorporated into the Bill making the legislation more transparent. Consequently, amendment No. 17 revokes both orders.
I thank the Minister of State. These are technical amendments to put the orders in place.
I move amendment No. 2:
In page 4, line 11, to delete "2001" and substitute "2004".
I welcome Deputy English to the committee. It is the first time he has appeared here.
I move amendment No. 3:
In page 4, line 19, after "period" to insert the following:
"shall be reviewed every three years and".
I accept the Minister has a chance to review and extend the period and so on but if this power is to be used the Minister should be obliged to review the period from time to time. The Seanad defeated an amendment to review it annually but I suggest that it be reviewed on a three yearly basis, in order that the power is used. It does not mean a decision has to be changed but at least it guarantees that a Minister will review it every three years. It will not necessarily cost the State anything.
I cannot accept the amendment because the review of statutory periods of leave, such as adoptive, maternity and parental leave, is a matter for consultation and negotiation by the Government with the social partners, through the partnership process, where the views of all the relevant stakeholders can be taken into consideration. The partnership process has been very successful and it is the appropriate forum for reviewing employment rights legislation including adoptive leave entitlements. The amendment would simply introduce an inconsistency with similar types of legislation such as the carers', maternity and parental leave legislation where there is no statutory provision for periodic review of the duration of the leave.
Will Deputy English withdraw the amendment or does he wish to press it?
I withdraw it as there will be an ongoing review process.
I move amendment No. 4:
In page 4, line 40, to delete "Article 6 of the Order of 2001" and substitute the following:
"Article 5 of the Order of 2004".
I move amendment No. 5:
In page 5, lines 20 to 26, to delete all words from and including "of—" in line 20 down to and including "weeks." in line 26 and substitute the following:
"of 8 weeks.".
This section gives rise to anomalies because for example, if a mother dies 23 weeks after the placement of her child the father is entitled to only one week's leave, whereas if the mother dies 16 weeks after the placement the father gets eight weeks leave, regardless of how much leave the mother took before her death. There should be some flexibility to facilitate the father in this case because these would be tragic circumstances and the conditions are too tight. We should look at the section again because this should not be difficult. The working group did not recommend it but that does not mean that we cannot recommend it. Will the Minister of State consider that?
The Deputy has a point, but I will have to reject the amendment, since it would grant the adopting father a minimum of eight weeks' additional adoptive leave, which would be inconsistent with the leave available to natural fathers in similar circumstances. As the Deputy is aware, the adoptive leave legislation replicates the maternity protection legislation giving natural and adoptive parents similar leave entitlements.
In the context of the review, the maternity working group considered the leave available and recommended that we increase both leave periods by four weeks. Those increases were implemented immediately in March 2001 and applied simultaneously to adoptive and additional adoptive leave. The increased leave provisions are also available to bereaved, natural and adopting fathers in certain circumstances depending on the date when the mother dies. However, the group made no recommendation to increase fathers' leave in the manner proposed by the Deputy, and I am not prepared to accept an amendment that will provide in some circumstances a right to a significantly greater period of leave. Accepting the Deputy's amendment would have the effect of breaking the link with maternity leave provisions and the parity of entitlement between natural and adopting parents.
In the maternity legislation, it is the mother who gets the maternity leave as such. I propose here that, if the mother has not taken all her adoptive leave because she has become ill, the father should at least be entitled to what she did not take in addition to his own. We need a degree of flexibility, but the Minister of State is clearly not going to accept it.
The Deputy might yet convince him.
We need to change the maternity leave legislation, which the Minister will follow in this case.
That is the argument put forward.
It is more appropriate.
The parity argument is that it would differ from maternity leave, but there is a discrepancy anyway, since adoptive leave is 16 weeks, while maternity leave is 18 weeks. As there is already such a difference, I cannot see why that is being argued in this case.
Is the Deputy saying that, despite the consistency, if it is wrong, it should not remain so?
They do not match up anyway. One gets 16 weeks for adoptive leave and 18 weeks for maternity leave, so there is already a difference between the two.
It is 16 weeks in both cases after the birth, which is the significant period.
But the totals are 16 weeks and 18 weeks.
There is a difference with natural birth.
I disagree with the Minister of State. The difference is not so large that one needs two weeks more. I accept that one is biological and the other not, but there is a great deal of emotion in the two weeks before adoption.
Is this related to the amendment before us?
No, I was giving an example. The argument put forward was that this amendment would make some difference, and I am not convinced by it. Perhaps the Minister of State might reconsider and accept the amendment.
Including changing the maternity period for natural birth, also amending that legislation?
Deputy English was pointing out that there is no consistency at present between the two Bills. There are already anomalies between them. The Minister is arguing that the two should be consistent.
The anomaly arises because the natural mother has two weeks before the birth of the baby, which is granted for reasons of health and safety and is slightly different from a situation where an adoptive child arrives. The same 16-week period applies afterwards in both cases, and I do not accept that there is any great inconsistency.
With respect, the two weeks off are not only for health reasons but in preparation for the birth. Regardless of whether one is having a baby naturally or adopting one, a preparation period and time to adjust are necessary. There is a discrepancy there, and I do not see why there cannot be other differences between the two Bills. I do not mean to argue the point at this stage, since that is not allowed, but I cannot accept that an amendment can be rejected because it alters the Bill when the Bills are fundamentally different anyway in the number of weeks. That is not a good enough reason not to accept my colleague's amendment, which I support.
The social partners have agreed it, and I do not want to break part of the social partnership agreement. The matter can be reconsidered at a later stage.
Amendments Nos. 6, 7 and 9 are related and may be discussed together by agreement.
I move amendment No. 6:
In page 5, line 31, to delete "subsection (2)" and substitute "subsections (2) and (3)".
Section 7 provides for time off to attend certain pre-adoptive classes and meetings. Subsection (1) of the new section 11A, to be inserted after section 11, states:
Subject to subsection (2), an employee shall be entitled, in accordance with regulations made by the Minister, to time off from work, without loss of pay, to attend any pre-adoption classes and meetings which the employee is obliged to attend.
The wording of subsection (3)(a) could be considered to be contradictory to this subsection and be interpreted as giving the Minister the power in regulations to reduce the entitlement by limiting the number of classes or meetings which the employee may attend. Consequently, I propose to remove subsection 3(a) to avoid any doubt regarding this matter, also taking the opportunity to make further amendments to subsection (3) so that the matters intended to be dealt with under regulations are brought into the text of the Bill. This simplifies the legislation and has the further advantage of avoiding a delay of several weeks that would be required to draft and make separate regulations under section 7.
I move amendment No. 7:
In page 5, lines 32 and 33, to delete all words from and including ", in" in line 32 down to and including "Minister," in line 33.
Amendment No. 8 in the name of Deputy English is out of order.
I understand why the Chairman ruled that we could not take my amendment, but consideration of it would have afforded us a good opportunity to debate the merits of it.
As the Deputy is aware, it involves a potential charge on the Revenue, and under Standing Orders it is not allowed.
I move amendment No. 9:
In page 6, to delete lines 43 to 51 and page 7, to delete lines 1 to 7 and substitute the following:
"(3) (a) In this subsection ‘classes’ refers to the pre-adoption classes and meetings mentioned in subsection (1).
(b) The entitlement of an employee to time off under subsection (1) is subject to his or her having—
(i) notified the employer in writing of the dates and times of the classes concerned, or the date and time of each class, as soon as practicable but not later than 2 weeks before the date of the first class, or the class concerned, as the case may be, and
(ii) produced to the employer, on request, an appropriate document indicating the dates and times of the classes, or the date and time of the class, concerned.
(c) Where the circumstances are such that, in the case of a particular class, non-compliance by the employee with paragraph (b) is not due to any neglect or default by the employee in relation to attendance at the class, the employee is deemed to have complied with the requirements of that paragraph if, not later than one week after the date of the class concerned, he or she provides the employer with evidence of the attendance and an indication of the circumstances which gave rise to the non-compliance.”.
I move amendment No. 10:
In page 7, line 47, to delete "sickness, and" and in page 8, to delete lines 1 to 3 and substitute "sickness.'.".
This is very unfair. The purpose of the amendment is to remove the requirement that, if an employee takes sick leave in the middle of the adoptive leave, he or she may not take the balance of the leave. I cannot understand why the entitlement to adoptive leave must be terminated simply because an employee is also entitled to sick leave. If a person gets ill during adoptive leave, it is not his or her fault. Those entitled to a certain period of adoptive leave should get it, no matter how many weeks. The period of illness should not interfere with that.
The adoptive leave will come after the sickness, but I am sure that the Minister of State will——
It states that the employee will cease to be entitled to any leave not taken.
The section gives the employee the option to terminate unpaid additional adoptive leave in the event of becoming ill, therefore becoming entitled to paid sick leave, thus potentially benefiting from the payment in respect of the sick leave.
I was probably reading it wrongly. Does it mean that the adoptive parent would receive a disability payment if ill?
Would he or she be entitled to that if off on adoptive leave?
Yes. They can make that agreement with their employer.
I move amendment No. 11:
In page 9, line 2, after "hospital" to insert the following:
"or such other date as may be agreed between the employer and the employee".
The purpose of this amendment is to remove any unnecessary rigidity in the Bill. The Bill requires that where adoptive leave is postponed following the hospitalisation of a child, the leave must be taken on a continuous period beginning not later than seven days after the child is discharged from hospital. In the spirit of partnership, my amendment suggests that the parties should be free to negotiate that at a different date with their employer. This would not arise in too many cases and it gives the flexibility required so that the employee could discuss it with his or her employer and come to an agreement. I think it is rigid as it stands.
That is very reasonable.
In the spirit of the season, I will accept the amendment. The Deputy has a fair point. While we have rejected this before, I accept that it is an improvement and it introduces a greater degree of flexibility.
It will not cause much difficulty because it will not happen too many times.
I move amendment No. 12:
In page 10, lines 17 to 35, to delete all words from and including "the" where it secondly occurs in line 17 down to and including "weeks."." in line 35 and substitute the following:
"Article 6 of the Order of 2004) of the Principal Act is amended by substituting the following subsection for subsection (1):
‘(1) Where the placement of a child with an adopting parent terminates before the expiration of the period of leave from the employment to which the adopting parent is entitled under this Part (other than as a result of the death of the child), the adopting parent shall notify the employer in writing (or cause the employer to be so notified) of the date of termination as soon as reasonably practicable but not later than 7 days after that date.'.".
The purpose of this amendment is to simplify the text of the Bill regarding the provisions governing placements which are less than 16 weeks in duration. The wording of the Bill, which was modelled on the 2001 order, could give rise to a misunderstanding about an employee's entitlements in circumstances where placements terminate earlier than expected. The amendment replaces the text with the more simple and straightforward construction closer to the wording of section 12(1) of the 1995 Act.
Would the Minister of State regard it as an improvement in the benefits that accrue to people who are-——
Amendment Nos. 13 to 15, inclusive, are related and may be discussed together by agreement.
I move amendment No. 13:
In page 10, line 43, to delete "subsection (5)" and substitute "subsection (6)".
The purpose of this amendment is to correct a cross-referencing error in the text of this section.
I move amendment No. 14:
In page 11, line 10, to delete "subsection (5)" and substitute "subsection (6)".
I move amendment No. 15:
In page 11, line 28, to delete "subsection (5)" and substitute "subsection (6)".
I move amendment No. 17:
In page 16, line 47, to delete "is revoked" and substitute the following:
", so far as unrevoked, and the Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2004 (S.I. No. 667 of 2004) are revoked".
There is an amendment to the Title by Deputy English, but it is out of order.
I accept that. On Second Stage, I asked about the father who wishes to take adoptive leave. The Minister explained that he gave it some thought, but decided not to go down that route. Why did he decide not to do that?
Is the Deputy referring to the two weeks?
I refer to the 16 weeks afterwards. I feel that either the father or the mother should be entitled to adoptive leave. It was explained on Second Stage, but I would like it clarified.
The maternity leave that a natural mother receives is replicated for an adoptive mother.
The Minister said in the Dáil that he was considering this. He then decided not to do it. I have noted that the National Women's Council is in favour of it, as are other groups. The Minister felt it was worth examining, but because it was not discussed by the review group, it was left to one side.
Now that it has been mentioned, it can be brought up as an amendment on Report Stage. I am sure that the officials will assist him to clarify the point he wishes to make.
It is a question of whether we go on to allow natural fathers take paternity leave, as opposed to the mother.
Maternity leave is different because the mother goes through the biological process of having the baby. Adoptive leave is different.
In my opinion, it is more important that the mother be with the child for the first 16 weeks. Having been involved in this in my role as Minister of State with responsibility for children, I feel that the requirements of this Bill are long overdue. The provisions in it are very good for adoptive parents. I do not think that it would be in the best interests of the family that the father, rather than the mother, would have the adoptive leave.
I accept the Minister of State's view and I accept that the Bill is doing much that is needed. However, under equality, I do not see why the Minister or I should decide that it is the mother who takes the leave. Should each family not take the decision themselves? Some families might decide that the father should spend more time with the child at the beginning. If both parents are doing shift work, it might suit both that the father takes the time off. That might benefit the child as well. I will bring this up on Report Stage, but I think it might be worth giving the option. It will not affect anyone, as it is different to the natural birth process.
Now that it has been mentioned on Committee Stage, the Deputy is entitled to bring it up on Report Stage.
I thank the Minister, his officials and the Deputies for attending.