Dáil Éireann díospóireacht -
Tuesday, 24 Feb 1981

Vol. 327 No. 1

Maternity Protection of Employees Bill, 1981: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Labour (Mr. Daly)

The situation at present when a woman has to leave her job to have a baby is that there is no guarantee that she will get her job back. Further, she will usually receive much less than her normal take-home pay. That is a situation which could not be allowed to continue. The Bill now before the House, in conjunction with legislation to be introduced later by the Minister for Social Welfare, remedies that situation for good. I believe it is an important piece of social legislation and represents a further major advance in improving the position of women in our society.

Certain provisions giving some protection to expectant working mothers have, it is true, been added to the Statute Book. First of all, in labour legislation, relevant protection is contained in the Unfair Dismissals Act, 1977, the Employment Equality Act, also passed in 1977, and the Redundancy Payments Act, 1979. Under the Unfair Dismissals Act a pregnant employee is entitled to protection against unfair dismissal, subject to certain conditions, solely on grounds of her pregnancy or matters connected with it. The Employment Equality Act makes an exception to its general prohibition of discrimination on the basis of sex or marital status by allowing the employer to give special treatment to an employee in the case of pregnancy or childbirth. The Redundancy Payments Act provides that an employee's continuity of service is not broken where she is absent from work for a period of up to 13 weeks during which she gave birth to a child. Secondly, the existing social welfare code entitles women who satisfy the relevant contribution conditions to receive maternity allowance for a period of 12 weeks.

However well-intentioned the provisions in these Acts are, they cannot be taken as having secured maternity protection for women in employment on a statutory basis. The three essential and inter-related elements of such protection are, first, the right to take maternity leave; secondly, the right to return to work afterwards; and, thirdly, the right to job security while absent on maternity leave.

I am, of course, aware of the existence of maternity leave schemes in both the public and the private sector. A growing number of such schemes have been negotiated, individually or collectively, on a voluntary basis. However, I am convinced that measures designed to ensure essential protection for the safety, health and welfare of workers should not be left exclusively to collective bargaining. Action from the Government is needed as well. I am therefore promoting this Bill to entitle female employees to take maternity leave and to return to work afterwards.

Particular care has been taken to consult both sides of industry fully and medical advice on certain aspects of the Bill both before the development of initial proposals for legislation and during the preparation of the Bill now before the House. Preliminary views of the Irish Congress of Trade Unions and the Federated Union of Employers were considered over a year ago and since then several meetings with representatives of each body have taken place. In addition, the views of the Council for the Status of Women were borne in mind. I am confident, therefore, that the provisions of the Maternity Protection of Employees Bill, when taken in conjunction with the new maternity allowance scheme which my colleague, the Minister for Social Welfare, will be presenting to the Dáil within a week, represent a major step forward in the social conditions and the welfare of expectant working mothers.

The two vital sections of the Bill before the House are section 8, which entitles an employee to take a minimum period of 14 weeks' maternity leave from her employment; and its corollary, section 20, which entitles her to return to work with her employer after her baby is born. The Bill is designed to ensure the greatest possible flexibility in the operation of both of these sections. As regards the allocation of the minimum period of maternity leave under section 10, generally speaking an employee must begin her maternity leave not less than four weeks before the expected week of birth of the baby and return to work not less than four weeks after the actual birth. The remaining six weeks may be taken either before or after the birth, in accordance with the employee's wishes. In this way I would hope that the employee may be guided by her medical advisers as to when it would be advisable for her to stop working before her confinement, taking the various relevant factors into consideration. I should mention, too, that the provisions in sections 12 and 13 of the Bill have been tailored to take account of the possibility of the baby arriving later or earlier than expected.

Should an employee wish to take more than 14 weeks' maternity leave — because, for example, she is breast-feeding her baby — section 14 of the Bill affords her the choice of taking additional maternity leave of up to four weeks. Once the Bill has been enacted, FUE and ICTU will be consulted about the making of regulations under section 16 which will permit the employee to take time off from work for the purposes of ante and post-natal care.

There are, I should point out, certain differences between absence from work on maternity leave and on additional maternity leave. For one thing, while an absence on maternity leave may attract payment under the new maternity allowance scheme, an absence on additional maternity leave will be unpaid. Secondly, under section 15, an employee's employment rights will be preserved during her absence on maternity leave, whereas during additional maternity leave those rights are, so to speak, "frozen". Neither pregnancy nor childbirth can be termed illnesses so it would not be justifiable to treat them as such. Section 15 prohibits maternity leave or additional maternity leave from being reckonable against the employee's entitlement to sick leave or to other leave, such as annual leave.

I appreciate that appropriate medical care, before and after childbirth, plays a large part in protecting the health and welfare of both mother and child. Under regulations which I propose to make in accordance with section 16 of this Bill a pregnant woman will be entitled to time off from her work to attend her doctor or clinic and after her baby is born she may have time off to attend for post natal check-up.

At this point I feel it appropriate to emphasise that great care has been taken throughout the Bill to facilitate the employer in the smooth functioning of his business. For that reason the employee is required to keep her employer fully informed at all appropriate stages of her intentions as regards the exercise of her entitlement under the Act. For instance, under sections 9 and 14, the employee must inform her employer at least four weeks in advance of her intention to take either maternity leave or additional maternity leave. Her notification in respect of maternity leave must be accompanied by a medical certificate confirming her pregnancy and indicating the expected week of her confinement. Her right to return to work is subject to four weeks' prior notification under section 22, with the further requirement that she must confirm her intention to return two weeks before her leave expires. Confirmation of her original notification to the employer is required in case an employee, even where she had fully intended to return to work, is prevented from doing so by unforeseen circumstances.

Complementary to the right to take maternity leave is the right to return to work afterwards. Under section 20 an employee is entitled to return to work with her employer in a job which is the same as, or equivalent to, the one which she held immediately before her absence on maternity leave. It is only where an employer does not find it reasonably practicable to re-instate her in such a manner that he may, by virtue of section 21, offer her re-engagement in a suitable alternative job, under terms and conditions not substantially less favourable to her than those of her original job.

Under the Bill, the right to take maternity leave and to return to work afterwards may be freely exercised, provided the employee complies with the notification procedures I have mentioned. The granting of these rights would be nullified if the employer were free to penalise an employee for duly availing herself of these. Consequently, section 17 invalidates any termination of employment or suspension given while the employee is absent from work in accordance with the legislation and due to expire during or after her absence; section 18, extends, by the period of the employee's absence, any notice of termination of employment or suspension effected before the employer had received the prior notification required under the legislation; and sections 25 and 27 amend the Unfair Dismissals Act for the purpose of deeming it an unfair dismissal if the employee was dismissed for exercising her rights under this legislation, and to enable either the employee or her employer to have recourse to a rights commissioner or to the Employment Appeals Tribunal in the event of a dispute about entitlement under the legislation.

The Maternity Protection of Employees Bill does not deal with the question of pay during maternity leave. As I have indicated, the social welfare payment aspect will be dealt with by the Minister for Social Welfare in the legislation giving effect to the new maternity allowance scheme being prepared by his Department.

The intention is that an employee in insurable employment will receive an overall weekly amount (including the value of any tax refund) corresponding to her average net take-home pay, during her absence on maternity leave but not during the additional four weeks leave allowed for under section 14 of this Bill. My colleague will be supplying Deputies with the details of the scheme shortly. Bearing in mind that it is the Government's intention to bring both pieces of legislation into operation by 6 April 1981, I commend the Bill to the House and urge Deputies to give it a speedy passage.

Mr. Mitchell

We welcome this Bill and see it as another milestone on the long road to social justice and equality for women. That is not to say that, like its many predecessors and especially those enacted during the term of office of the National Coalition, it will not have its problems. I shall deal with those problems later on in my speech. However, whatever may be those problems there is no doubt that the omission of this legislation to date has perpetrated an injustice against women. In that regard my main criticism of the Minister would be the delay in its introduction.

The right of women whilst having children to have their jobs protected would be widely considered today to be a basic social and human right. Certainly that is my view. The implications of the provisions of this Bill — with which the Minister did not deal—will become apparent as time progresses. Indeed the implementation of its provisions will not be without cost in terms of employment, social costs and indeed to women themselves. It is regrettable that a likely cost — and here there is some evidence to suggest that other equality legislation has had a similar effect — will be that employers will have an additional reason for not employing women because, of course, this is a uniquely female problem. I have no doubt that many employers will seek to avoid employing women, in many cases, as a result of this Bill, something which can only be regarded as entirely regrettable. In the case of small employers it is more understandable. I regret that the Minister did not address himself to what will be a very big problem for small employers and probably also for women working for them. I have in mind here particularly small offices, shops and so on. But no problem that might arise as a result of the enactment of this Bill would in any way warrant delaying its introduction or a diminution of its terms because its provisions seek to eliminate an injustice which has been perpetrated for far too long, something which must be a primary consideration at all times.

I have said that the provisions of this Bill will carry their social cost. It is a feature of modern life that many mothers, through economic circumstances. are forced to seek employment. Quite apart from the social acceptance in recent years of women wanting to pursue careers, something which is a wholly laudable development, I believe we have not given sufficient attention to the social cost to society of women with young children who would prefer to remain at home, at least in the children's earlier years, to look after them but who have been forced, through economic circumstances, to seek employment.

I would like the Minister to consider instituting, either through his Department or through the Employment Equality Agency or through the Council for the Status of Women, some research into the social cost of forcing mothers who do not want to, to seek employment on economic grounds. That is quite distinct and should be separated from the case of women who have consciously decided to pursue a career and who should be helped and encouraged by legislation and attitudes in society in that aspiration. In my constituency there are many hundreds and perhaps thousands of women who have to seek employment to make ends meet, not for any luxuries but just to meet the basic requirements of their family and home. Many of them feel that this has an adverse effect on their children and that in turn has serious adverse effects for society. So there may be a very much bigger social cost involved in forcing mothers to seek employment than we have ever acknowledged. The Minister should therefore institute research into this area to establish what, if any, is the social cost. While we should do everything in our power as legislators to influence attitudes in society to allow and encourage women who want to pursue careers to do so, we should also do everything in our power as legislators and formers of opinion to facilitate the mother who wants to stay at home.

I have already referred to the fact that this Bill, like some other Bills, although fully intended to improve the situation of women, could in some respects have adverse consequences in relation to employment. It is regrettable that this is so but I hope that it will have a minimal effect in that direction. I would strongly urge employers in general to adopt a very positive attitude to the provisions of this Bill. Having said that I want again to raise with the Minister the question of small employers. Would it be possible to inaugurate a scheme to help the man who employs two or three people to overcome the inevitable problems to which this Bill will give rise?

There is one other major feature of Irish social life that must be mentioned in the context of this Bill. That is the fact that the female participation rate in economic activity here is the lowest in Europe. As most of the ILO and EEC surveys will show, apart from the Netherlands, the female participation rate here is considerably lower than in any of the other EEC countries. The conclusion we must draw from that is that there are a great deal more women in our society who would be available for work (a) if the jobs were available and (b) in the legislation and attitudes governing these matters were helpful. Of course this Bill is a step in the right direction in that regard. But it does mean that if we are going to follow the trends of other European societies, the female participation rate will continue to grow as the years pass by and I imagine our female participation rate will be chasing after the average rate in Europe and will catch up probably towards the end of this century. Our job requirements will therefore be a great deal more than we have already estimated.

This is not the first time I have mentioned this in the House but it would be wrong of me not to raise it again during the Second Stage of this Bill. It is not good enugh to pass Bills and to express good intentions without also doing the other things that are necessary to allow women to have full social justice and full equality. That means making provision for sufficient jobs in the years to come. We hear a great deal about the fact that 50 per cent of our population is now under 25 years of age. It is also a fact that 50 per cent of our population is female and it is likely that our female participation rates will follow those of Europe.

To make Bills like this one meaningful we have to create the necessary jobs so that women can take advantage of the provisions of this Bill if they want to. That has considerable implications for our whole national apparatus in relation to job creation and job maintenance. No one has really made provision for an increase in the female participation rate and certainly not at the level that would be required for us to have a female participation rate of the same level as in Europe. It is not that I hope or wish to have a female participation rate equal to that in Europe. It may or may not be a good thing. But there is a momentum in that direction which will inevitably take us into a situation where our female participation rates will be close to those of Europe. I would therefore urge the Minister of State at the Department of Labour when this Bill is passed, or perhaps before it is passed, to go back to the drawing board with the other Ministers responsible for the job creation and job maintenance areas to see if our job creation programmes are going to be enough. I do not have to tell the House that with unemployment growing rapidly already it is clear that our job creation efforts are not enough for today, never mind for tomorrow or the next decade.

On Committee Stage of this Bill I would propose to table a number of amendments because I think some improvements are possible and the Bill has some flaws. I raise two of them now and perhaps the Minister of State when he comes to reply can clarify the matter. It is clearly intended by the Bill that maternity leave or additional maternity leave should not affect annual or sick leave entitlement. Does that mean that the 14-18 weeks during which an expectant mother may be absent from work will be reckonable as if they were worked for leave entitlement? In other words, many firms operate on the basis that you are entitled to X days per month worked. I would like the Minister to clarify that. If he does not, I would like to put down an amendment on Committee Stage to clarify that total annual leave entitlement will not be reduced by the 14-18 weeks absence. As I read the Bill, it is not clear. The Bill says that annual or sick leave is not affected, and I presume that could be read as meaning that, if a lady was entitled to three weeks' leave for a full year worked, that leave could not be included in the 14-18 weeks but her entitlement to three weeks would be maintained as if she had worked a whole year. That needs to be clarified.

The second point that I am not at all happy about, although I can see some difficulty regarding it, is that during her absence from employment for maternity leave or additional maternity leave a lady would not have social insurance unless her employer was paying some remuneration during her absence. That is regrettable and I would like the Minister to think about it again with a view to at least permitting social insurance credits during the period of absence. I would see that as a very important improvement in the provisions of the Bill. There may be cost involved. Perhaps the Minister could examine it. In those two areas at least, I see scope for improving the Bill.

Having said that, it is not our intention on this side of the House to delay the passage of the Bill but to help it on its way. I hope that Committee Stage will be taken in the next few weeks and that this Bill can be enacted by both Houses well in time for 6 April when it is to come into operation. Towards the end of his speech the Minister referred to the scheme being introduced in parallel by his colleague, the Minister for Social Welfare. From what the Minister said it seems that the provisions will be reasonably acceptable, but of course we have to await the publication of the scheme before we can comment in more detail.

Finally, I would like the Minister to reflect on the problems — it would be wrong of us to pretend that problems will not arise from this Bill; they will — that this Bill will give rise to and then see how we as legislators can help overcome them, especially those in relation to small employers.

Mr. J. Ryan

On behalf of my party I welcome the Bill and I appeal to all sides of the House to put it through all Stages without undue delay. I have valid and proper reasons for urging the speedy passing of this Bill. One is that Ireland is the only EEC country now without such a scheme and this Bill before us today is long overdue and needed. Furthermore, the ICTU, the Women's Representative Committee, the Council for the Status of Women, the Labour Party and the Labour Women's National Council have all sought such a scheme for many years and at last this Bill has been brought before the House for final adoption. I emphasise and re-emphasise that the most important reason for the early adoption of this Bill today is that this scheme is part of the Government commitment within the national understanding and as such has our full support. It is essentially a Bill providing for full and total equality for all women in employment. For years we have listened to our women's organisations pleading with the Government and asking particularly the Department of Labour to introduce such legislation and fulfil the needs of this equality and today we have it in this Bill. For that reason I wish it a speedy passage through the Dáil.

However, it can be said the generosity of the Bill and the scheme can be questioned in some respects. For example, the schemes in the UK and other countries are much more generous in their attitude towards maternity leave. If there is to be total equality of status among all women in the EEC, this aspect will have to be looked at later. However, we will support the present Bill in its current form because we wish to see it enacted as soon as possible and perhaps later on there can be further discussions with the Minister on the Bill's shortcomings with a view to resolving the problems and updating the attitude of this Government to bring it into line with that of other member states of the EEC.

This brings us to the very important aspect that we now need better child care facilities within and without employment. There is also a national understanding commitment in this area and we now work towards the scheme as part of the overall attitude of this Government and the Department of Labour towards the equality of women. This involves the woman herself and the child that has been born. We urgently need an integrated system of maternity and child care facilities, all related to work and to the woman at work. For that reason this Bill can be described as a watershed in the establishment of equality status for all women in our country.

It is not the intention of this party to propose any amendments to the Bill and I assure the Minister that he will have our full support on all Stages of the Bill.

Mrs. Lemass

Perhaps this Bill is long overdue but, nevertheless, it is very welcome. For economic reasons there always has been and always will be a need for some women to go out to work. I am very glad indeed that the Bill makes provision for 14 weeks' paid maternity leave, which gives a woman a reasonable amount of time before and after her confinement.

Up to now a woman who had to work for economic reasons usually found it very difficult to have her baby and to get back to work within a short space of time so that she could continue to earn money. This legislation will give her confidence. She can take time off before and after the birth to rest and make her pregnancy easier. I am glad the Minister brought this Bill in so quickly after it was promised in the national understanding.

We all know that a working mother will have further problems when a baby is born. How will she mind the baby? It is no use having 14 weeks' paid maternity leave if she has nowhere to leave the baby when she goes back to work. In conjunction with this legislation there must be day nurseries provided, so that the mother may bring the baby there to be minded and to where she can go at lunch time to feed the baby. The Minister mentioned she will be entitled to an extra four weeks if she is breast feeding and usually this is done for six or eight months. She will need somewhere to do this in peace. Perhaps this could be incorporated in legislation dealing with children.

Legislation should also be brought in to ensure that in buildings for which planning permission is sought, offices, banks and all places of employment, there should be some place set aside for women who are working in that establishment and who want to bring their babies along and leave them there to be looked after. I hope the Minister concerned will act very quickly to provide such a service.

Deputy Mitchell said we had the lowest female work participation rate of all European countries and that he hoped this would change. I hope it will not change. The Irish woman prefers to stay at home, unless she has to go out for economic reasons or is a genuine career woman. The majority of Irish women are happiest at home where they are most needed. The family needs a mother, especially when children are young. It is a very happy situation when the father can provide for the family and the mother can stay at home to look after the children.

I am delighted to see the Bill going through and it will be welcomed by all women and by politicians on both sides of the House.

Minister of State at the Department of Labour (Mr. Daly)

I should like to thank Deputy Mitchell, Deputy Ryan and Deputy Lemass for their contributions to the Bill. We have taken into account some of the points they made in relation to this legislation.

Deputy Mitchell referred to the delay in introducing legislation which is so desirable. It was recommended by the Commission on the Status of Women in 1973 and, without getting into politics, I wonder what the Coalition Government were doing during their period of office. The Deputy referred to the position of employers in small businesses in relation to the Bill. The best legal advice available to me indicated that provision for special treatment in the Bill for those employers could give rise to constitutional difficulties. They could not be treated as a special case since that would, in effect, mean distinguishing in relation to the treatment for the purposes of maternity protection between female employees, depending on whether they worked for small or large organisations.

Every effort has been made in preparing the Bill to strike a balance between providing the essential elements of maternity protection for female employees and ensuring that employers, big and small, are facilitated to the greatest extent possible in the orderly conduct of their businesses. This is evident from the various requirements to give the employer prior written notification before the employee can lawfully exercise her right under the bill, from the fact that her reinstatement after maternity leave may be to an equivalent job, as opposed to the same job, and that re-engagement may be offered to her in certain circumstances as an alternative to reinstatement.

Deputy Mitchell also referred to the cost of the legislation, both in financial and social terms, with regard to employment prospects for female employees. In advance of this legislation trade unions had negotiated close on 100 collective agreements dealing with paid maternity leave. In these cases maternity pay had to be borne by each individual employer concerned. This would be a particular burden on small businesses or for people employing females in intensive industries such as the textile industry. However, under the new maternity allowance scheme to be introduced by the Minister for Social Welfare the cost of payment during maternity leave will be spread evenly over all employers.

With regard to possible adverse effects of the Bill on the employment of women, I remind the House that Ireland is the last country in the EEC, as Deputy Ryan pointed out, to introduce a statutory maternity leave scheme. There is no evidence of which I am aware to indicate that women in other EEC countries have suffered as a result. A recent study in the UK showed that the contrary is the case. The Bill has been designed to facilitate the employer in the orderly conduct of his business while employees are on maternity leave and is a more positive approach than allowing the present situation to continue whereby collective agreements are negotiated in a haphazard and non-uniform manner.

Section 15 of the Bill makes it clear that a woman's employment rights are not affected and will continue to accrue during maternity leave. For that reason I assure Deputy Mitchell that absence on maternity leave will be counted for reckoning in the woman's entitlement to annual leave as if she had been present at work during the period of maternity leave.

Social Welfare credits will be allowed by the Department of Social Welfare for persons in receipt of benefit. Therefore, the amendment which the Deputy seeks is not necessary.

Deputy Ryan said that the UK legislation is more generous in terms of the length of time during which a woman may be on maternity leave. That is true but it is the only aspect of that other legislation to which the Deputy refers. Another aspect of it is that in England a woman must have two years' employment with the same employer before becoming entitled to maternity leave whereas under this Bill there is no qualifying period of service in that regard. In addition, the corresponding payment in Britain is not as favourable as that proposed here.

Deputies Mitchell and Lemass expressed concern about the position of women who, for economic reasons or for reasons of personal fulfilment, find it necessary to go to work. A couple who choose to combine careers with family responsibilities may encounter practical difficulties. These difficulties centre around the need to make suitable alternative arrangements for the care of children. This problem is the subject of a commitment in the second national understanding of 1980. That commitment was that the Minister would establish a working party for the purpose of examining the position of child-care services and facilities in cases of working parents. Steps are being taken to establish this working party. Nominations have been sought from appropriate representative organisations including trade union and employer interests, the Council for the Status of Women and the Employment Equality Agency.

I am pleased to be promoting this legislation, legislation which represents a major step forward in social policy and which will make a significant contribution to accommodating the employment patterns of women vis-à-vis their family responsibilities. It is vital that we utilise investment in the education and training of women by making it possible for them to combine careers and motherhood. If we fail in this respect we could lose out as a nation in terms of a large proportion of the talent that is available among our female population.

This legislation will help women to overcome the conflicts which many of them have experienced previously because of their natural desire to have families as well as their wish to remain in employment.

The major emphasis in the Bill is on the question of the protection of the health and welfare of mothers in employment and of their children. The enactment of this Bill will benefit about 10,000 expectant mothers this year by safeguarding them from the fear of losing their employment because of pregnancy. In addition the legislation will prevent them from having to work up to a date close to the date of childbirth and under the parallel legislation which the Minister for Social Welfare will be presenting to the House next month, mothers in employment will be given further protection by being relieved of the financial necessity to work at about the time of confinement, a time when pressure on resources tends to be high. Having regard to the importance of medical supervision both before and after confinement, I will be drawing up regulations regarding time off for both ante- and post-natal care. These regulations will be drawn up as soon as possible after the enactment of the legislation and will come within section 16 of the Bill.

I have taken considerable care to ensure that the employers' interests are protected also. The FUE were consulted fully during the preparation of the legislation and I understand that the Bill generally is acceptable to them. Having regard to the notification procedures with which an employee must conform at all appropriate stages and also because of the relatively small administrative financial burden to the individual employer, the employer is being protected and will be facilitated in the running of his business to the greatest extent possible.

The Bill is a most desirable piece of legislation and I commend it to the House. I thank those Deputies who have contributed for their constructive suggestions.

Question put and agreed to.

Agreed to take remaining stages today.