Parental Leave Bill, 1998 [ Seanad ]: Second Stage.

I move:"That the Bill be now read a Second Time".

This Bill introduces for the first time in Ireland a statutory scheme of parental leave. Under the Bill, parents are conferred with an entitlement to leave from work to take care of their young children. Provision is also made for employees to be given a limited right to time off from work for family crises. The Bill is based on the EU Directive on Parental Leave.

I will outline the key components of the parental leave scheme as introduced by the Bill. The leave will apply to parents of children born on or after 3 June 1996 — the date of adoption of the EU Directive. Each parent will be entitled to a total of 14 weeks' leave from work for such a child. The leave must be taken before the child is five, subject to modifications in the case of an adopted child. Parental leave is not transferable between parents, i.e. the father may not take the mother's share and vice versa. The 14 weeks may be taken as a continuous block or, by agreement between employer and employee, in separate blocks or by working reduced hours. Parental leave is unpaid but is reckonable for the purposes of employment rights other than superannuation. Limited force majeure leave is available for family crises. The force majeure leave is paid. Employers may postpone parental leave in certain circumstances. Disputes about entitlements under the Bill are, in general, referable to a rights commissioner.

Debate on the introduction of proposed parental leave and leave for family reasons commenced at EU level in the early 1980s under the EC's first action programme for equal opportunities for women 1982-85. However, it was not until June 1996, that the Parental Leave Directive incorporated a framework agreement which was negotiated between the social partners at EU level. This framework agreement set the broad parameters for parental leave but left much to the discretion and interpretation of member states. The proposals in the directive are the first instance of a document developed by the social partners under the Maastricht Treaty being accorded the legally binding status of a directive.

The directive stipulates a minimum of three months' leave for each parent to be taken in the initial years of the child's life up to the age of eight. This leave is distinct from maternity leave. The directive provides that the leave should, in principle, be non-transferable between parents. Employees must be guaranteed a right to return to work and must be protected against dismissal. As long as the minimum requirements of the directive are met, it is left to member states to determine issues such as whether the leave is paid or unpaid, what pattern of leave is to be allowed, the maximum age of the child and matters relating to social security.

In addition to providing for parental leave, the directive provides that workers must be given the right to force majeure leave, i.e. time off for family crises resulting from illness or accident. The directive gives member states discretion in developing the details of force majeure leave.

The key objectives of the Parental Leave Directive are the reconciliation of work and family life and the promotion of equal opportunities and treatment between men and women. Deputies will agree these aims are highly relevant to Irish society today.

Over the past 25 years, there has been a massive growth in the number of women in the workforce here. I quote some statistics which will illustrate the position. Between 1976 and 1996, the number of women in the workplace grew by 212,000, reaching 488,000 in 1996. The growth in the number of women at work has accelerated in recent years. The growth in women in the workplace in the five years between 1991 and 1996 — just over 100,000 — almost equalled the growth of women's employment in the previous 20 years. The most recent labour force survey published by the Central Statistics Office last year estimates that the number of women at work was over 512,000 — or four in every ten people at work. In the case of women aged 25 to 44, nearly two thirds now work outside the home. There has been a huge increase in the number of married women at work. In 1971, only 14 per cent of the women in the workforce were married, but by 1996 married women accounted for 47 per cent of women workers.

These changes in the structure of the workforce have led to a growing awareness of the need to reconcile work and family life. The "traditional" family in which the father is the breadwinner and the mother is the stay-at-home carer of the children is still strong but is no longer dominant in our society. There has been a rapid increase in the numbers of other types of families, including families of dual earners, single parent families and families where the mother is the sole earner. A study carried out for the Commission on the Family showed that, among families with a child aged under 15, only 49 per cent had one earner, 36 per cent had two earners and the remaining 15 per cent had no earner. These developments are helping to break the mould in which labour is divided between fathers as providers and mothers as carers.

In this changing society, there is increasing recognition of the need for measures which will help parents to reconcile the competing demands of work and family. The introduction of parental leave will not only facilitate the increasing numbers of mothers in the workforce but, equally importantly, as men can also avail of parental leave, will provide working fathers with practical means of involvement in the care and upbringing of their young children.

The force majeure leave which is also being introduced under the Bill recognises the reality that family responsibilities are not confined to those with young children. It reflects the fact that all workers, men and women, may find themselves faced with an emergency caused by the accident or illness of a family member and that the employee will have to absent himself or herself from work for a day or so to attend to the emergency.

The EU Directive on Parental Leave, as I have already mentioned, sets broad parameters but gives considerable latitude to member states in drawing up their national schemes of parental leave. I will outline some of the considerations which shaped the Bill before the House.

At the time the EU Directive was adopted, Ireland, Luxembourg and the United Kingdom were the only EU member states which did not already have some form of statutory parental leave. We, therefore, had to start from scratch in developing our parental leave scheme, while most other member states had only to make any modifications to existing schemes which were necessary to comply with the directive. Because of the social protocol, the directive did not originally apply to the UK but was extended to include the UK in December 1997. The UK, therefore, has two years from that date in which to introduce parental leave. Consideration of what is proposed there has been announced in a consultative White Paper which has recently been launched by the UK Department of Trade and Industry.

In developing the Parental Leave Bill, my Department examined the existing schemes in other countries, including the EU member states. However, because of the differing social security systems in the various member states and the diversity of parental leave schemes in operation, it was difficult to draw firm conclusions. From our examination of the position in other member states, it is difficult to speak of any kind of "norm". In almost every respect, whether it be the upper age limit of the child, the pattern of leave available, or the issue of payment, there is much variation between member states. Our own domestic legislation dealing with maternity protection and adoptive leave also provided useful precedents, but as maternity and adoptive leave are both based on particular events, this Bill necessarily differs from the earlier legislation in many respects.

Another key element in the development of the Parental Leave Bill was consultation with the social partners. The requirement for such consultations is based on the terms of the directive and is also written into Partnership 2000. My Department has had intensive consultations with IBEC and ICTU about the contents of the Bill. I and my officials have met these organisations on several occasions, both within the framework of Partnership 2000 and elsewhere, and have given thorough and detailed consideration to the oral and written submissions which they made. Although there was much common ground, ICTU and IBEC had diverging views on several issues relating to parental leave and I cannot maintain that what is contained in the Parental Leave Bill is entirely satisfactory to both organisations.

In drawing up this measure, my Department had to weigh up a diverse range of factors. We took into account existing parental schemes in other countries and the divergent views of the social partners. Subject to meeting the requirements of the directive we sought to develop a scheme which would suit Irish needs and conditions. We wanted a scheme which would be workable, which would not be unduly difficult to administer and which would give clear entitlements to workers but leave flexibility for local agreement. We also wanted to strike an appropriate balance between the rights and expectations of workers and the needs of business and the economy as a whole.

I do not claim to have achieved perfection. I am conscious that parental leave and force majeure leave represent a new departure in Irish working life and that these new rights will apply to employees in employments of all sizes and types. For this reason, I have made statutory provision for the scheme to be reviewed within three years. Both employer and employee interests will be consulted in the course of this review.

A key issue we had to consider in drawing up the Bill was whether it should be paid, either by the employer or by the Exchequer in the form of a social welfare benefit. The Government has decided not to provide paid leave. To require employers to provide pay for the person who is absent on parental leave for 14 weeks, in addition to the cost of a replacement for that person, would not only be costly for individual employers but would be fundamentally damaging to Ireland's competitive position. This cannot be advanced as a serious proposition. Were the Exchequer to provide a benefit similar to maternity leave to all persons who took parental leave, the estimated cost would be £40 million a year in social welfare benefits alone, and there would be substantial additional Exchequer costs arising from the many public servants who do not pay full PRSI. I do not regard expenditure on this scale as being justified. The picture in other member states is hugely variable and it cannot be said that paid parental leave is the standard. While seven member states — Sweden, Finland, Belgium, Denmark, Germany, Austria and Italy — provide some form of payment, others provide no payment or do so only in restricted circumstances.

It has also been asserted that only if leave is paid leave, will men avail of it. However, with the exception of Sweden, the take up rate by men is extremely low, even where the leave is paid. In Germany, for example, only 1 per cent of all eligible men take parental leave. The existence of a link between payment and male take up cannot be demonstrated in countries where paid parental leave operates.

There is no requirement under the directive that parental leave be provided on a paid basis. The social partners who negotiated the framework agreement left this issue for decision by member states. Given the significant potential cost to the Exchequer of providing a social welfare benefit for such leave the Government does not propose to provide for parental leave on a paid basis.

However, the Bill provides that employees on parental leave will be treated for the purposes of all employment rights, other then remuneration and pensions, as if they remained at work. This means that time spent on parental leave will be counted as service for the purposes of promotions, increments, annual leave, etc. This is something which was left open in the directive but it was decided that, to enhance the attractiveness of the scheme, the time involved should be reckonable as time at work.

I am also arranging, in consultation with my colleague, the Minister for Social, Community and Family Affairs, Deputy Dermot Ahern, that time spent on parental leave will be credited for social welfare purposes where necessary. This means no worker will lose out on his or her long-term or short-term social welfare benefits because of time spent on parental leave. The necessary arrangements do not form part of the present measure but will be put in place once the Bill is enacted by the Department of Social, Community and Family Affairs.

In the case of force majeure leave, however, different considerations apply to payment. The Bill sets tight limits on the amount of force majeure leave which an employee can take in a three year period. Given these limits, it was decided that the most administratively practical arrangement was to provide force majeure leave on a paid basis.

I emphatically reject any notion that this is a minimalist Bill. It is a balanced measure which does more than meet the bare requirements of the directive. I already mentioned some of the features, such as the reckonability of parental leave for service purposes, the payment for force majeure leave and the protection of social welfare rights, which were not absolute requirements under the directive.

The Bill allows parental leave, by agreement between employer and employee, to be taken as a number of broken periods or by working reduced hours. Many existing parental leave schemes in other countries do not afford such flexibility. Furthermore, although the directive does not specify any form of retrospection, the Bill provides that parental leave will apply to parents of children born on or after 3 June 1996. Parents of a child now aged up to two will therefore qualify for parental leave. As regards the maximum age of the child concerned, it was possible to set this somewhere between two and eight within the terms of the directive. Only Sweden and Denmark have an upper age limit of eight with most member states setting it at about three. We decided to set the limit at five by which age almost all children have started school.

There have been some comments and questions in recent weeks about a so-called derogation which my Department obtained from the terms of the directive. No derogation has been sought from the EU Commission and it is intended to fully comply with the terms of the directive. The directive sets a deadline of 3 June 1998 for its transposition into national law but provides that member states can have a maximum additional year in cases of special difficulties.

Last February, my Department contacted the EU Commission seeking to delay transposition of the directive here by six months, that is, to 3 December 1998. This approach was made because of an assessment at that time of the timeframe for enactment of the legislation and our knowledge of the potential difficulties for employers of having to implement the legislation immediately after the enactment of the Bill. The Commission acceded to this request, confirming that this would be fully in compliance with the directive.

The parental leave directive, unlike many other detailed directives issued by the European Commission, leaves much to the discretion of member states. Until the Parental Leave Bill was initiated, employers could not commence preparations for implementing the features of the parental leave scheme contained in the Bill. Given the novelty of parental leave, it is entirely reasonable that a lead-in time of several months is the minimum that is required. Therefore, I intend to bring the scheme into operation on 3 December 1998, in line with the approach to the commission. This interval will enable employer and worker organisations to inform their members about the implications of this measure; allow employers to put systems in place; allow for any necessary modification to existing non-statutory leave schemes which operate in some employments; allow the secondary legislation to be put in place; facilitate Government Departments in making consequential changes and generally permit the smooth introduction of the scheme.

The Bill is divided into five Parts as follows: Part I contains preliminary and general provisions; Part II sets out the basic entitlements and conditions for parental leave and force majeure leave; Part III deals with the employment rights of workers who take parental leave or force majeure leave; Part IV sets out the mechanisms for resolving disputes about parental leave or force majeure leave and Part V contains miscellaneous provisions.

Part I has general and mainly standard provisions. Deputies will note the operative date of 3 December 1998 which is in section 1. I draw attention to section 4, which ensures that the provisions of the Bill cannot be nullified or limited by any other agreement but which allows for arrangements which are more favourable to employees than those provided in the Bill.

Part II sets out the basic entitlements and conditions of parental leave and force majeure leave. The salient features of the parental leave entitlement, as set out in section 6, are: the natural or adoptive parent of a child is entitled to 14 weeks parental leave for each child born, or adopted, after 3 June 1996, which, as I have already mentioned, is the date the Parental Leave Directive was adopted; parental leave must, in general, be taken before the child is five, but this limit may be extended for an adopted child; the employee must have had one year's continuous service in the employment before taking parental leave, but provision is made for an employee who has not had such service when the child is approaching the upper age limit and the leave is not transferable between parents, i.e., the mother may not take the father's share and vice versa.

Under section 7, parental leave may be taken as a continuous block of 14 weeks or, by agreement between employer and employee, the leave may be spread over a number of periods, by part-time working etc. A parent with more than one child under five may not, except in the case of multiple births, take more than 14 weeks in a year unless with the employer's agreement. Section 8 deals with the notice requirements for parental leave. It provides that an employee must inform the employer at least six weeks in advance when he or she intends to start the leave, how long it is for and when it is to be taken. The employer may require supporting evidence of the child's date of birth, parentage etc.

Under sections 9 and 10, the employee and employer must confirm the leave four weeks before it is taken and, once it has been confirmed, both employer and employee are committed to this leave. This confirmation is necessary to enable both employer and employee to plan with certainty, but they can, by mutual agreement, vary or curtail the leave after it has been confirmed.

Section 11 allows an employer to postpone parental leave for six months if the leave would have a substantial adverse effect on the business because of seasonal factors, the size of the business, other employees on parental leave, difficulty in getting a replacement etc. The employer cannot, however, postpone leave that has been confirmed. This facility for postponement provides a necessary safeguard for employers and is in keeping with the terms of the directive.

Section 12 deals with abuse of parental leave. It enables an employer to terminate the parental leave of an employee if he or she has reasonable grounds for believing that the leave is being abused. The employer may also refuse to grant leave to an employee if he or she thinks that the employee is not entitled to it and must set down in writing the reason for such refusal. Section 13 sets out the basic entitlement to force majeure leave. An employee may take paid leave from work if he or she is urgently needed because of injury or illness of a family member. This leave is limited to three days per year or five days in three years.

Part III deals with employment rights of an employee who takes parental leave or force majeure leave. Under section 14 an employee who is on parental leave will retain all employment rights, other than the right to remuneration or pension rights, while on such leave. This means that, although the leave is unpaid, the employee will continue to accrue service for the purposes of increments, annual leave etc. As already mentioned, existing social welfare rights will be protected by the award of credited contributions during the period of leave where necessary. Such arrangements do not come within the scope of the present Bill but will be put in place by the Department of Social, Community and Family Affairs.

However, in the case of force majeure leave the employee is treated in all respects, including pay, as if he or she remained at work. As mentioned, it was considered administratively impractical to do otherwise for such a limited amount of leave. In the remaining sections of Part III, provision is made for the employee's return after parental leave to the same job or, where that is impractical, to suitable alternative employment. These provisions are similar to those already in existence for maternity leave and adoptive leave.

Part IV provides for the resolution of disputes about parental leave or force majeure leave. The redress mechanisms are modelled on those in place for disputes about maternity leave and adoptive leave. With the exception of disputes about dismissals, which are covered by other legislation, disputes can be referred by employee or employer to a rights commissioner. A decision of a rights commissioner may be appealed to the Employment Appeals Tribunal. The tribunal can appeal to the High Court on a point of law and decisions of a rights commissioner to the tribunal may be enforced by order of the Circuit Court. Deputies may wish to note the various forms of redress which a rights commissioner or the tribunal may order under section 21. These include compensating the employee with an award of up to 20 weeks' pay; granting parental leave at a particular time; extending the upper age limit of the child; postponing the leave because of its adverse effects on the employment and, where there has been a serious change in the circumstances of the employer or employee, curtailing, postponing or varying parental leave.

Part V contains miscellaneous provisions, including the manner in which notices are to be given in proceedings under the Act; how compensation payable under the Act is to be treated in the event of winding up or bankruptcy and a series of consequential amendments to other enactments. These are essentially technical provisions and are covered in the explanatory memorandum. However, Deputies may wish to note the requirement of section 27 that employers keep records of parental leave and force majeure leave and that such records be open to inspection by inspectors under the Organisation of Working Time Act, 1997. Such records can be used in the event of a dispute or if there is uncertainty about the entitlements of an employee who changes jobs.

Section 28 requires the Minister to review and report on the operation of the Act within three years of its commencement, in consultation with representatives of employees and employers. I am conscious that parental leave marks a departure in Irish working life and the fact that it will apply to employees in a variety of employments. This review will provide an opportunity to assess provisions of the Act in the light of experience of its operation.

I regard the Parental Leave Bill as a key element of the equality agenda for which my Department is responsible. The Department is committed to pursuing strategies which will bring about a more equitable society. The Government's An Action Programme for the Millennium and reports submitted to Government in recent years, such as the report of the Second Commission on the Status of Women, the Task Force on the Travelling Community and the Commission on the Status of People with Disabilities have added momentum for enhanced equality and combating discrimination based on gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. This Bill is part of my approach in these areas.

It is now 12.30 p.m, but with the agreement of the House, we will allow the Minister to finish his speech, which will take approximately one minute. Is that agreed? Agreed.

The Bill will give new rights to employees, both men and women and will enable them to reconcile work and family life. This initiative will provide working parents with an opportunity to spend time with their children in those vital years of early childhood when child care responsibilities are at their most demanding. Where both parents are working and avail of the leave, they can, between them, have 28 weeks leave for each child.

The benefits of parental leave do not flow only in one direction. Parental leave will benefit employers by facilitating the retention of experienced skilled employees in the workplace and by reducing absenteeism. Employees whose attention is taken up with endeavouring to achieve a precarious balance between their home and work responsibilities can hardly give their whole-hearted attention to their work. I do not believe that the introduction of parental leave, as proposed in the Bill, will prove financially burdensome to employers and I urge them to take an understanding and wholly committed approach to its introduction as advantages will accrue to both employers and employees.

It will be clear that I consider this a key Bill to advance the introduction of family friendly policies which the Government is pursuing. I look forward to our debate on this measure and I commend the Bill to the House.

Debate adjourned.