Dáil Éireann díospóireacht -
Wednesday, 30 May 2001

Vol. 537 No. 3

Carer's Leave Bill, 2000: Report Stage (Resumed).

Debate resumed on amendment No. 16:

In page 10, to delete lines 19 to 24 and substitute the following:

"(6) The Minister may make regulations in respect of the form in which carer's leave may be taken by any specified class or classes of employees in circumstances where the car er's leave is to be taken in the form referred to insubsection (1)(b).”.

–(Minister of State at the Department of Enterprise, Trade and Employment, Mr. T. Kitt).

Mr. Broughan

Before the adjournment I was expressing concern that we seemed to be rowing back on the famous section 5 in the original Bill where the Minister after consultation with another Minister could issue regulations to exempt some provisions in relation to certain classes. The Government amendment allows the Minister to make regulations in respect of the form in which leave may be taken by any specified class or classes, where the application for carer's leave has been made and is proposed to be taken in a number of periods, the aggregate duration of which does not exceed 65 weeks from date of commencement. I am concerned at the inclusion of the phrase, "any specified class or classes of employees". As I stressed in the earlier part of the debate, the key role of caring in society must be recognised.

I accept the statement by the Minister of State earlier that the Bill is another step in that direction, perhaps a historic step. All workers should have equal entitlement to the 65 weeks, provided they meet the specified criteria under section 6. Why do we need the phrase "by any specified class or classes of employees"? Are we reverting to the former situation where, in effect, the Government was prepared to ensure that certain sectors of the workforce would not be able to avail of this? Members of the Defence Forces and the Garda Síochána, who collectively number more than 20,000, should not have their right to act as family carers impeded. I ask the Minister of State to clarify this issue and to indicate that he is not seeking to put a barrier to the equal rights of all classes of workers, whether in the public or private sectors, to avail of carer's leave and benefit.

Mr. T. Kitt

The section was redrafted in the interest of greater clarity of intention. Section 8(6) is an alternative to the provision in section 3(5) of the Bill as initiated. It enables the Minister to make regulations in relation to any specified class or classes of employees, setting out the manner in which carer's leave may be taken in a form other than one continuous period of 65 weeks, as is specified in section 8(1)(b). Deputy Broughan referred to people such as teachers. It could be open to management and teacher representatives to agree specific arrangements for the implementation of the legislation in so far as it affects teachers. The Department of Education and Science has said that there is no objection to granting carer's leave for teachers. That Department acknowledges that the exclusion of teachers from such a scheme would be discriminatory.

There has to be a clear structure for dealing with those situations. The working year for teachers is atypical. Difficulties which would arise in relation to the employment of suitably qualified personnel to replace teachers while on carer's leave might well necessitate special conditions in the interests of the teachers themselves and of school managements, students and parents. This amendment is simply tidying up what we had put in place earlier. It is not unusual in legislation to allow for the Minister to make regulations in respect of particular categories. I reiterate that the Government and the Department of Education and Science, which has the lead role in this regard, are conscious of the need to ensure there will be no discrimination against teachers. This is a normal provision in relation to particular categories of workers, not necessarily teachers alone.

Mr. Broughan

Is the Minister of State accepting that there will be equal treatment for all workers in the implementation of this Bill? Our concern in this matter arose from the original section 3(5). It was rumoured that this was directed particularly at teachers, because of the break system and the fact that they have periods of intensive work and somewhat longer holidays than other categories of workers. It could, of course, be equally applicable in other areas of the public service and in private enterprise. It would be helpful if the Minister of State would confirm, on the record of the House, that all categories of workers will be treated equally in the application of carer's leave and carer's benefit.

Mr. Perry

I support the concept of equality of entitlement for all categories of employment, including members of the Defence Forces, the Garda Síochána and the teaching profession. The needs of carers are obviously not confined to any particular sector.

Mr. T. Kitt

I am happy to confirm that the thrust of this Bill is to ensure equality of treatment for all workers. While this provision allows for certain categories to be treated in a particular way, that is purely to take account of the nature of that particular category of workers.

Amendment agreed to.

Mr. T. Kitt

I move amendment No. 17:

In page 10, to delete lines 25 and 26.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 18 is in the names of Deputies Flanagan and Perry. Amendment No. 19 is an alternative, No. 20 is related and No. 21 is an alternative to No. 20. Amendments Nos. 18 to 21, inclusive, may be discussed together, by agreement.

Mr. Perry

I move amendment No. 18:

In page 10, to delete lines 27 to 30 and substitute the following:

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

I appreciate that the 12 weeks notice period may present some difficulty but, where possible, people should plan their leave arrangements well in advance and give their employers notice accordingly. Of course, situations will always arise where employees may need to take leave at much shorter notice and this can usually be accommodated where there is a good relationship between the employer and employee. The difficulty for employers in planning ahead should be taken into account, including the difficulty of finding alternative staff at relatively short notice, perhaps more so in some jobs than in others. Where employees can give longer notice, this would greatly facilitate forward planning. If it is not possible to incorporate such a provision in the Bill itself, this important aspect should be covered in some other appropriate manner.

Mr. Broughan

Anybody involved in administration in business or in the public sector will appreciate the need for the longest possible period of notice being given by employees proposing to take carer's leave. Decisions have to be made with regard to substitute staff, training arrangements and so on. In the private sector, deadlines often have to be met and failure to do so can affect the company's performance.

I understand why Deputies Perry and Flanagan framed it this way. Nonetheless, in the context of caring, this is a special function and one in which the widest possible leeway must be given and that is why, in amendment No. 19, the Labour Party still wants section (9)(1) to be reduced from six to four weeks. Emergencies arise and a person would be under pressure maintaining a full-time job while caring for a loved one. As on Committee Stage, we still believe that this is an appropriate period.

Amendment No. 21 refers to subsection (2) which is that in exceptional emergency circumstances where it is not reasonably practicable to give notice in accordance with the period specified in subsection (1), the employee should give that notice as soon as is reasonably practicable. My colleagues on the Opposition benches want to delete the word "reasonably" which is narrow and ultra restrictive for carers. We were under pressure on Committee Stage on this and, accepting the Minister's good faith over the exceptional emergency circumstances, we still believe that carers should be given the widest freedom in taking leave. This should be left out because often in caring these circumstances arise and, in terms of notice, we could have this section without saying that. The original wording was "where it was not reasonably practicable". The Minister went some distance from that, which we welcome. However we will still pursue the broadest possible definition. It is understandable that, when it comes to notice of leave and how operations and enterprises in both the private and public sectors conduct their business, employers could be under pressure.

In this historic Bill we want to move towards full recognition of the caring function. I discussed privately with the Minister how in the future caring may be recognised as a full scale social economy task that gets a real income, not £96 per week. These amendments seek to move in tiny steps towards a better society. While understanding my Fine Gael colleagues and the Minister, whom I commend and thank for coming some way, I urge him to come the whole way with amendments Nos. 19 and 21, especially amendment No. 19.

Mr. T. Kitt

Section (9)(1) provides that an employee must give notice in writing to his or her employer at least six weeks prior to the date on which it is proposed that the leave commence, informing him or her that he or she proposes to take such leave and that an application has been made to the Minister for Social, Community and Family Affairs for a decision from a deciding officer or appeals officer, as appropriate, that the person to be cared for while on leave is a relevant person for the purposes of Social Welfare (Consolidation) Act, 1993, and the date on which it is proposed to commence the period of carer's leave, and the duration of it.

Amendment No. 18 reflects the IBEC view that the notice proposed is not long enough and suggests a period of eight weeks, and is supported by Fine Gael. Amendment No. 19, reflecting the ICTU position, and supported by the Labour Party, proposes that the period of notice of intention to take carer's leave of six weeks should be reduced to four weeks, given the type of situation in which carer's leave may occur, for example, a sudden illness. On Committee Stage, I acknowledged that carer's leave would be availed of to cover circumstances such as sudden illness where shorter notice requirements would be desirable. However, we must not ignore the real difficulties in the labour market of replacing staff at short notice as well as time constraints on officials in the Department in processing applications and medical assessments for carer's benefit and leave. We have struck the right balance. I will not accept either amendment and propose retaining the six week notice period.

Section (9)(2) provides that in exceptional or emergency circumstances where it is not reasonably practicable for an employee to give notice to the employer of the intention to take carer's leave in accordance with the minimum six weeks prior notice, specified in section (9)(1), then the employee shall give the notice as soon as is reasonably practicable. This is a reasonable compromise. IBEC want "practicable" without "reasonably" and ICTU want both words removed. We discussed it with both sides and came up with an honourable compromise. Amendment No. 20 proposes the removal of the word "reasonably" in the two places where it occurs. This would weaken the provision and I do not accept it. It is in workers' interests. Amendment No. 21 proposes the removal of the phrase "in exceptional or emergency circumstances" from section (9)(2). The restriction to such circumstances is reasonable and I do not accept this amendment either. We discussed this in detail on Committee Stage and were lobbied by ICTU and IBEC. My approach in this Bill is to be reasonable to everyone, particularly to workers in emergency circumstances. Our phrasing is the correct one.

Amendment, by leave, withdrawn.

Mr. Broughan

I move amendment No. 19:

In page 10, line 28, to delete "6" and substitute "4".

Amendment put and declared lost.

Amendments Nos. 20 and 21 not moved.

Mr. Broughan

I move amendment No. 22:

In page 10, line 50, to delete "the employer" and in page 11, to delete lines 1 to 3 and substitute "the leave may be treated as carer's leave and this Act shall apply to that leave accordingly. If a dispute arises in relation to the application of this subsection, the employee may refer the matter to the rights commissioner under section 19 of this Act.”.

We want to delete the last part of subsection (4) and replace it with the proposed words. The key point for us is that if a dispute arises in relation to the application of this subsection, the employee may refer the matter to the rights commissioner under section 19. The Minister moved towards the Labour Party's position by limiting the employer's discretion and making it subject to subsection (8) where the employer may, when exercising his discretion under subsection (4) on the matter of notice, refuse to treat the carer's leave as such leave on reasonable grounds and where the employer so refuses, he or she shall specify in writing the grounds for such refusal. In that context, the Minister of State has come some distance towards meeting the position we set out. He stated earlier that section 19 and the reference to a rights commissioner could be applied to many of the subsections. Clearly, giving notice will be a key element of the implementation of the Bill when it becomes an Act.

There seems to be a strong case for making section 9(4) subject to reference to a rights commissioner under section 19, while retaining the advances the Minister of State has made. I com mend the Minister of State on attempting to limit, to some extent, the employer's discretion because in the original Bill, the employer was given very wide discretion in relation to notice. It has been balanced by including the phrase "subject to subsection (8) of section 9". Nonetheless, I would like to hear the Minister of State's views on whether we could include section 19 at this stage as well.

Mr. T. Kitt

I thank the Deputy for his comments. We touched on this issue earlier when debating another section. In terms of having good, solid and consistent legislation, amendment No. 22 would not effect any substantial change in the Bill and it is unnecessary as its potential has already been achieved by the current text. As the Deputy rightly identifies, section 19 covers that. I reject this amendment on the basis that if one puts this reference into one section, in practice, one might weaken another section by not including it there. I am rehearsing the arguments I used this morning in relation to a similar case. I assure the Deputy that recourse to a rights commissioner is firmly included in section 19 in the case of a dispute arising.

Mr. Broughan

I welcome that declaration by the Minister of State. It is significant that the application for this will be important. The complexity of this arises from the fact that two Departments and two people, the person doing the caring and the person being cared for, are involved. This part of section 9 illustrates that well. It is one of the reasons we urged the Minister of State to have a review mechanism, which has been put in place. We wanted to ensure that this aspect of the operation of the Bill, the giving of notice, would be subject to review, so we could see how it worked. It is complex in that the two elements are involved in it. I welcome the Minister of State's declaration and on that basis, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Perry

I move amendment No. 23:

In page 11, line 6, to delete "4" and substitute "8".

Employees must give at least four weeks notice in writing of their intention to return to the employment. This is very short notice, particularly if they have been on leave for a considerable period. A person may decide to opt for a second period of leave. The employer will have taken on somebody else and he or she will have to be given notice to make the vacancy available for the person on leave to return to work under the contractual arrangements which exist. Four weeks is very short notice given the practicalities of operating a business within that timescale. A number of sections provide for six weeks and I am disappointed the Minister of State did not maintain that continuity. It is also important to have the goodwill of the employer. The purpose of this valuable Bill is to provide care and one will find employers very understanding and that they will accommodate everybody concerned. The statutory notice of four weeks in this regard is quite short.

Mr. T. Kitt

Section 9(6), as initiated, provides that following the taking of a period of carer's leave, an employee is required to give to his or her employer notice in writing of his or her intention to return to work at least four weeks before the date on which he or she proposes to so return. Amendment No. 23 from Fine Gael, which has, I believe, been prompted by IBEC, proposes that this four weeks should be eight weeks. This is not reasonable and given the nature of the cases involved, I do not propose to accept the amendment. We are all conscious of the circumstances in which carer's care for the person concerned. Four weeks is reasonable and I regret to say I am not prepared to move on that.

Question, "That the figure proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Amendment No. 24 not moved.

Mr. T. Kitt

I move amendment No. 25:

In page 11, lines 15 and 16, to delete all words from and including "and" in line 15 down to and including "applies" in line 16.

Mr. Broughan

To get clarification, they are lines 15 and 16—

An Leas-Cheann Comhairle

Amendment No. 25 was discussed earlier with amendment No. 10.

Mr. Broughan

It is in front of us again, a Leas-Cheann Comhairle. Will section 17 still not apply to all of that section?

Mr. T. Kitt

Yes, it will.

Amendment agreed to.

Mr. Perry

I move amendment No. 26:

In page 11, line 19, to delete "2" and substitute "4".

Confirmation of carer's leave should be increased from two to four weeks. Section 10(1) states that the employee and the employer shall, on a date that is not less than 2 weeks before the proposed commencement of the carer's leave concerned, prepare and sign a document. The timescale is very confined.

Mr. T. Kitt

I am satisfied that the requirement set down in section 10(1) is reasonable given the nature of the cases envisaged. Under this subsec tion, an employee and his or her employer must, at least two weeks before the date on which the carer's leave is due to commence, prepare and sign a document referred to in the Bill as a confirmation document which shall specify the date of the commencement of the period or periods of carer's leave and the duration of each period of leave. The amendment proposes that this period of two weeks be extended to four weeks. This is not reasonable and I am not prepared to accept the amendment. Two weeks in this case is the appropriate time.

Amendment, by leave, withdrawn.

Mr. Perry

I move amendment No. 27:

In page 11, between lines 32 and 33, to insert the following:

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

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

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

This amendment deals with the postponement by an employer of carer's leave. It seeks to insert a new subsection (1). This matter is also a cause of concern for IBEC. I would like to hear the Minister of State's comments on the amendment.

Mr. T. Kitt

I can reassure the Deputy on this issue. I acknowledge there will be situations such as those set down in the amendment whereby an employer, particularly one with low staff numbers, will seek a postponement of carer's leave to address urgent work requirements. However, given the nature and the circumstances in which carer's leave is likely to be taken, I am satisfied that section 12, as drafted, should provide the necessary comfort factor to employers.

Section 12 provides for the postponement, curtailment and variation of the form in which car er's leave may be taken by agreement between the employee and employer concerned. The section also provides that where carer's leave is postponed, curtailed or varied, it may, subject to section 6 which deals with entitlement to carer's leave, be taken at another time, that is, the period of the leave which is so postponed or not taken by virtue of the curtailment. Provisions in section 12 meet the Deputy's concerns. I cannot accept this amendment.

Mr. Perry

I was pleased to hear the Minister of State's comments on the amendment and that my concerns are somewhat addressed in section 12. It is important that this will be enabling legislation and that it will be reviewed in years to come. This legislation is a good start. While it is important at all times to address concerns raised, it is also important to strike an appropriate balance. Small companies are the backbone of this economy, given that 85% of jobs are created in companies with a staff of fewer than ten. It is important the Bill reflects the development of small companies in our economy and difficulties that would be created if staff take carer's leave in such companies. The amendment to section 12 will address somewhat the concerns in this area.

Amendment, by leave, withdrawn.

Mr. T. Kitt

I move amendment No. 28:

In page 11, to delete lines 33 to 44 and substitute the following:

"11.–(1) The period of carer's leave shall terminate–

(a)on the date of termination of the period of carer's leave specified in the confirmation document,

(b)on a date agreed between the employee and employer concerned,

(c)where the person in respect of whom the employee has taken carer's leave ceases to satisfy the conditions for a relevant person for the purposes of the Act,

(d)where the employee ceases to satisfy the conditions for the provision of full-time care and attention for the purposes of the Act,

(e)where a decision under subsection (2) is made, on the date specified in subsection (3), and

(f)where the relevant person dies during a period of carer's leave on the date earliest of the following dates–

(i)the date that is 6 weeks after the date of death, or

(ii)the date of termination of the period specified in the confirmation document.".

This is a tidying up exercise. The revised text of section 11(1) has been prepared following detailed discussions with the Office of the Parlia mentary Counsel to the Government since Committee Stage on 11 April. The proposed draft of that subsection sets out in clear terms the circumstances and conditions upon which carer's leave would terminate.

Mr. Broughan

The Minister's amendment tidies up the section, particularly subsection (1)(e). How will the amendment impact on subsection (2)? I note further changes are proposed in amendment No. 29. I also note the Minister of State is trying to tease out the elements of the termination of carer's leave. I will raise a concern later regarding such termination, that of employment rights and social welfare rights which have not been mentioned in the amendments that have been dealt with.

Mr. T. Kitt

We will deal with those issues shortly. Section 11(2) deals with the circumstances in which a social welfare officer can decide whether the benefit will end. Section 11(3) deals with an employer requesting an employee to return to work.

Amendment agreed to.

Mr. T. Kitt

I move amendment No. 29:

In page 12, line 2, to delete "was not or is no longer a" and substitute "did not or does not satisfy or no longer satisfies the requirements for a".

This is a drafting amendment.

Amendment agreed to.

Mr. T. Kitt

I move amendment No. 30:

In page 12, line 13, after "employer" to insert ", following a notification referred to in subsection (2),”.

This is a drafting amendment.

Amendment agreed to.

Mr. T. Kitt

I move amendment No. 31:

In page 12, to delete line 16 and substitute "reasonable and practicable having regard to all the circumstances.".

This is a drafting amendment.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 33 and 34 are alternate to amendment No. 32 and amendments Nos. 35 and 36 are related and they may be taken together by agreement.

Mr. T. Kitt

I move amendment No. 32:

In page 13, to delete lines 5 to 11 and substitute the following:

"(1) An employee who is absent from work on carer's leave shall be regarded as still working in the employment for all purposes relating to his or her employment and none of his or her rights or obligations related to the employment shall be affected by availing of carer's leave other than–

(a)the right to–

(i)remuneration,

(ii)annual leave, except as provided for in subsection (2),(iii)public holidays, except as provided for in subsection (3), and

(iv)superannuation benefits,

and

(b)any obligation to pay contributions in, or in respect of, the employment.

(2) Section 19 of the Organisation of Working Time Act, 1997, shall apply to the first 13 weeks of absence from work on carer's leave for each relevant person.

(3) Section 21(1) of the Organisation of Working Time Act, 1997, shall apply to the first 13 weeks of absence from work or carer's leave for each relevant person and shall not apply to public holidays that occur after such period of absence from work.".

Deputies will recall that the issue of annual leave and public holiday entitlements while on carer's leave was a major issue on Second and Committee Stages and I gave an undertaking to revisit this issue on Report Stage.

Amendment No. 32 provides that a person who is on carer's leave shall be only entitled to (a) annual leave during the first 13 weeks of absence from work on carer's leave and (b) to those public holidays which occur during the first 13 week period of absence taken for each relevant person. These provisions are similar to annual and public holiday entitlements under the Parental Leave Act, 1998. It would be unreasonable to expect employers to give employees on carer's leave annual leave and public holiday entitlements for all of the 65 weeks entitlement to carer's leave.

In many cases an employer will have to temporarily replace the employee absent on carer's leave and the employee will also be entitled to annual leave and public holidays. In those circumstances it would not be reasonable to expect an employer to give full annual leave and public holiday entitlement to the employee absent on carer's leave.

An entitlement for both annual leave and public holidays in respect of the first 13 weeks of the 65 week entitlement was decided upon as generally under holiday legislation. There is not a right to annual leave for any period of an absence over 13 weeks.

Amendment No. 36 is consequential on amendment No. 32 and, accordingly, I request that they be accepted. In light of these Government amendments I do not propose to accept amendments Nos. 33 or 35.

With regard to amendment No. 34, I point out it is standard that time spent on statutory leave is reckonable as a period of service for redundancy purposes and, accordingly, I do not propose to accept it.

Mr. Broughan

Amendments Nos. 33 and 35 are in conflict to some extent with amendment No. 32. We discussed this issue at length on Committee Stage and I accept the Minister of State has come a long way in this regard. While these amendments accept some of the rationale of the Organisation of Working Time Act, they could have been brought into line with provisions in the Parental Leave Act in that it may be unjust to treat a carer in a less favourable way in this regard. I understand the timeframes under the Carer's Leave Bill and the Parental Leave Act are very different. Nonetheless parents who take 14 weeks parental leave are considered to be in employment for the purposes of annual leave and public holidays while carers who take 14 weeks carer's leave to care for an incapacitated parent will be treated less favourably.

I welcome the fact that the Minister of State has come some of the way towards meeting our concerns. I tried to express this in amendment No. 33 by deleting the words "annual leave, public holidays" and in amendment No. 35 by asking him to extend the remit of a new subsection (2) to include that an employee on carer's leave for a period of up to 14 weeks would be regarded for the purposes of annual leave and public holidays as still working in the employment and that none of his or her rights in regard to annual leave and public holidays would be affected. I commend the Minister of State for coming part of the way and ask him to go the extra couple of yards or metres to meet this requirement and ensure we do not introduce a new inequality between carer's leave and parental leave.

Mr. Perry

I welcome the Minister of State's comments in regard to employees on carer's leave. I accept his comments from the point of view of the employer and the entitlements to bank holidays, public holidays and so on. It is as far as anyone could go on the issue. Amendment No. 34 refers to reckonable service for redundancy. I understand the Minister of State's comments in this regard. On the role of companies in regard to the payment procedure for holidays, which will obviously be paid by employers directly to employees even though they are absent from the company, is there a procedure in place to ensure the payment will be made?

Mr. T. Kitt

I spoke earlier about the need to strike a balance. The initiative in this case would be supported by the ICTU, even though IBEC would not be totally happy with me. If that is a reason for winning Deputy Broughan's support I do not take great satisfaction in making anyone unhappy. However one cannot please everyone in regard to these initiatives. We are trying our best to achieve the correct balance on an important issue.

We are introducing a new provision in respect of annual leave, that is, 13 weeks. As I said to Deputy Broughan, we are talking about parental leave of approximately 14 weeks, from which we are not far away. In this case we are talking about approximately one quarter of a person's entitlements. It is quite a step forward in relation to the rights of employees, which is appropriate. This initiative has stemmed from discussions on Committee Stage. Sometimes we have had to take account of the views of both IBEC and the ICTU. On the earlier question of 12 months, IBEC felt very strongly about the issue. However we have achieved the right balance. I have outlined my position to which I intend to stick.

Amendment agreed to.

Amendments Nos. 33 and 34 not moved.

Mr. Broughan

I move amendment No. 35:

In page 13, between lines 11 and 12, to insert the following:

"(2) Notwithstanding the provisions of subsection (1), an employee on carer's leave for a period up to 14 weeks shall be regarded, for the purposes of annual leave and public holidays, as still working in the employment and none of his or her rights in regard to annual leave and public holidays shall be affected.”.

Amendment put and declared lost.

Mr. T. Kitt

I move amendment No. 36:

In page 13, to delete lines 29 to 31.

Amendment agreed to.

Bill recommitted in respect of amendment No. 37.

Mr. T. Kitt

I move amendment No. 37:

In page 13, line 32, to delete "expiration of a period of carer's leave" and substitute "termination of carer's leave in accordance with this Act".

This amendment which has been discussed with the Office of the Parliamentary Counsel to the Government since Committee Stage is aimed at making the text more clear and internally consistent.

Mr. Broughan

This is complex legislation, aspects of which we were considering up to this morning. I can understand the strengthening of the text by including the words "termination of carer's leave in accordance with this Act". Does the Minister of State accept there will still be strong concerns regarding the whole area of return to work and employment rights? Under sections 11, 13 and 14 a worker on carer's leave to discharge an important caring function could end up in limbo where they have finished their carer's benefit, a future date is set for them to return to their job and they are left without an income of any kind. Will the Minister of State give a commitment that workers will not find themselves in limbo at the end of the carer's leave period if conditions in relation to notice and termination are properly fulfilled and they are waiting to return to work? I am seeking that all employees' rights under the Bill and the social welfare Acts up to 2001 will be fully implemented. At the end of a caring period which has possibly ended in the death of a family member, carers trying to return to work should not have to face having no means of any kind. The Bill seems to be a little vague in this regard. My colleagues and I would like some clarification to ensure there will be support by way of social welfare benefits and assistance. I am asking for a smooth transition between the period of caring and returning to the workforce. Constituents who have been on carer's leave, discharging the carer's function, should not have to apply for supplementary welfare allowance by visiting their local health board clinic which is often the case when the social welfare system cannot support them.

As far as possible there should be a smooth transition back into the workforce given that we have now discussed all the elements of how the carer's function could be discharged both in and out of the workforce. There are one or two other elements I would like to have seen amended in this regard. Will the Minister reassure us that he will ensure a smooth transition into the workforce? I know we will have the opportunity, thanks to the Minister's acceptance of section 34, within the next two to three years to have a full consultation with the social partners, the trade union movement, employers and possibly with people who have taken carer's benefit and carer's leave. We will have the opportunity to look back at the legislation then. There is concern about this element and I would like the Minister's views on it.

Mr. T. Kitt

From the point of view of the employee, termination is a better word to use than expiration which would suggest that one would have to see the whole 65 weeks expire. The word termination gives wider rights to the employee. For example, if the leave period ended in an unusual situation such as the person being cared for passing away, that would be a termination as distinct from an expiration. We are trying to ensure the employee is protected in every possible eventuality. We feel the word "termination" fits any particular situation that might arise. It provides a wider right for the employee.

Mr. Perry

One good thing about this Bill is that it will allow carers to take career breaks and I compliment the Minister on that. There may be shortcomings in the system but the whole concept is good. It is good too that even if the person being taken care of passes away, the carer can still resume employment. It seems to be geared towards providing that the carer's job is always there and carers may take a career break for whatever length is needed. It is a much needed and important Bill and everybody is anxious that it should pass before the summer recess.

Mr. Broughan

The Minister mentioned as an example a situation where the person being cared for passes away. Does he envisage that in such a situation the carer could be left in any type of gap period?

Mr. T. Kitt

This is brand new legislation. The Deputy rightly acknowledges that I have accepted that a review is required which shows that we all feel the need to monitor this legislation in practice. We are trying to deal with every possible situation and we use that language to ensure that every eventuality is catered for in giving the worker the right to return to work. I can give guarantees on behalf of law abiding people, both employers and employees, in relation to legislation. Later on we will have ways of dealing with those who do not honour the legislation. We are dealing with traumatic situations and having discussed this not just here, but with IBEC and ICTU, I believe there is tremendous goodwill for this legislation. I acknowledge the support of Opposition Members. We will monitor the enactment of this legislation. This legislation will provide tremendous support to an area that needs it. The issue of carers and the need for other avenues to provide care is a very important issue for the House and I am confident that we will see a good response to this legislation from employers.

Amendment agreed to.

Amendment reported.

Mr. Perry

I move amendment No. 38:

In page 13, to delete lines 41 and 42 and substitute the following:

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

It is important that the right to return to work reflects the reality of commercial life where few jobs remain exactly the same as they were before someone left. The job description could have changed since a person took leave and this amendment would reflect the co-operation between employer and employee. The amendment suggests that it would be important that the right to return to work would also reflect the reality. My amendment suggests that a person would return to a job the same or similar to that which they held prior to the commencement of leave. It allows some discretion in that area.

Mr. T. Kitt

This issue was raised with me by IBEC following publication of the Bill and we have discussed it further with the Office of the Parliamentary Counsel to the Government. It is considered that the amendment proposed is unacceptable. It is unnecessary because if the employee cannot be returned to the job he or she held immediately before the commencement of the leave then section 15 of the Bill provides that the right to alternative employment should apply. This situation therefore is catered for in section 15.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendments Nos. 39 to 52, inclusive, and Nos. 54 and 55 are related and may be discussed together, by agreement.

Mr. Perry

I move amendment No. 39:

In page 17, line 16, to delete "Tribunal" and substitute "Labour Court".

The Labour Court would be a more suitable forum than the Employment Appeals Tribunal for all those involved given its less formal and less judicious setting. It is important since the Labour Court is seen as an arbitrary body that deals with many difficulties. I would like to hear the Minister's views on this.

Mr. T. Kitt

The amendment proposes that the Labour Court should be the appellate body under the Bill. As a consequence to this proposal all reference to the Employment Appeals Tribunal in the Bill would be replaced by references to "the Labour Court". It was decided that the Employment Appeals Tribunal should be the appellate body under this Bill because of its previous experience as the appellate body under the Parental Leave and maternity leave Acts. Given the nature and sensitivities of cases likely to be the subject of appeal under the Bill, I am satisfied the Employment Appeals Tribunal is the best place to address these. The Employment Appeals Tribunal has traditionally dealt with individual rights issues, in other words, employment rights issues, while the Labour Court has dealt with interests, that is trade union and collective bargaining issues. I feel strongly that we should leave the Bill as it currently is. The tribunal is the right place for issues which are really individual rights issues. The Labour Court, whose annual report I just launched recently, is very busy and has a great deal on its plate regarding the broader interests of trade unions. The Government is right and this Bill is a move in the right direction.

Mr. Perry

I want to be reassured that individual rights issues will be dealt with where they occur. Small companies will be affected, but having heard the explanations of the Minister of State, Deputy Tom Kitt, on this matter, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 40 to 52, inclusive, not moved.

An Ceann Comhairle

As amendments Nos. 53, 61 and 62 are related, they may be discussed together, by agreement.

Mr. T. Kitt

I move amendment No. 53:

In page 18, line 1, to delete "‘£1,500"' and substitute "‘3,000 (£2,362.69)"'.

Amendments Nos. 53, 61 and 62 reflect a recent Government decision requiring all Bills published before the end of 2001 to show references to monetary amounts in both Irish pounds and euros. The increase in the level of fines reflects the increase in inflation since the general levels of fines were last increased in 1993. The amounts included in the Bill were provided to all Departments on the advice of the Office of the Attorney General. We are breaking new ground here today as the amendment will delete the reference to £1,500 and substitute 3,000, which amounts to £2,362.69. This is the first time I have seen euros mentioned in a Bill. This straightforward amendment increases fines in line with inflation.

Amendment agreed to.

Amendments Nos. 54 and 55 not moved.

Mr. Perry

I move amendment No. 56:

In page 18, line 28, to delete "26" and substitute "20".

I wish to hear the Minister of State's comments on this amendment.

Mr. T. Kitt

The figure of 26 weeks remuneration was inserted in the Bill to reflect the length of carer's leave, at 65 weeks, as opposed to the length of parental leave, 14 weeks. This is in line with other employment rights legislation and accordingly, I do not propose to accept amendment No. 56.

Mr. Perry

I am happy with the Minister of State's explanation and I withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. T. Kitt

I move amendment No. 57:

In page 19, line 43, to delete "1990" and substitute "1999".

I thank Deputy Broughan for bringing this amendment to my attention. It relates to the collective citation of the Companies Acts, 1963 to 1999. Following consultation with the Office of the Parliamentary Counsel, the Government has been advised that the amendment, as proposed, is technically correct.

Amendment agreed to.

Mr. T. Kitt

I move amendment No. 58:

In page 21, to delete lines 4 to 23 and substitute the following:

"(a) in section 15, by the substitution in subsection (4), for paragraph (aa) (inserted by the Parental Leave Act, 1998) of the following paragraph:

‘ (aa) any period during which the employee was absent from work while on parental leave, force majeure leave or carer's leave within the meaning of the Carer's Leave Act, 2001,',

and

(b) in section 16, by the substitution in subsection (5), for paragraph (cc) (inserted by the Parental Leave Act, 1998) of the following paragraph:

‘ (cc) any period during which the employee was absent from work while on parental leave, force majeure leave or carer's leave within the meaning of the Carer's Leave Act, 2001.'.”.

May amendments Nos. 58 to 60, inclusive, be discussed together?

An Ceann Comhairle

No, because amendments Nos. 59 and 60 are out of order.

Mr. Broughan

They should be in order.

Mr. T. Kitt

Following amendment No. 32, which amended sections 31 and 32 of the Bill in relation to annual leave and public holiday entitlement, this reference to the Organisation of Working Time Act, 1997, is no longer required. Accordingly, and following the advice of the Office of the Parliamentary Counsel, it is proposed to delete section 13(4).

Mr. Broughan

This amendment gives me the opportunity to raise an outstanding concern of which the Minister of State may be aware. I tried to raise the matter by proposing amendments Nos. 59 and 60.

An Ceann Comhairle

Amendments Nos. 59 and 60 are not before the House.

Mr. Broughan

The amendments attempted to resolve the central problem that has been introduced into the Bill by its reference to other relevant legislation. It seems this is the one remaining measure that will put the carer in a more restrictive situation than is the case under other legislation, such as the Parental Leave Act, 1998. I realise the Minister of State mentions this in his amendment, but I am concerned about force majeure leave and perhaps he can reassure me. A situation may arise whereby a person has to leave work at short notice, perhaps a few hours, to fulfil a caring function. The many other references in the Bill to giving notice and preparing to receive carer's leave will have to be fulfilled. I am concerned that those who may have to leave for a short time, perhaps to go to a hospital or hospice, may be forced to forsake a full day of carer's leave.

There is a concern about the operation of force majeure, but I accept that my amendment No. 59 is no longer on the agenda. I tried to ensure that the period in which the employee is absent from work while on force majeure shall be construed in line 10 as reference only to the portion of the day during which the employee was absent. Looking back at section 28, the Organisation of Working Time Act, 1997, would effectively be amended, so that Act would obviously be affected. I am concerned about the construction of force majeure leave in relation to the Organisation of Working Time Act, 1997, and the fact that there are concerns that a short absence from work would be construed as a complete day rather than merely a number of hours. I would like the Minister of State to respond to this basic concern.

An Ceann Comhairle

The amendments referred to by Deputy Broughan were ruled out of order and are not before the House. We are discussing amendment No. 58.

Mr. T. Kitt

We have had a successful debate and, with the permission of the Chair, I remind the Deputy that his amendment was ruled out of order as it specifically refers to parental leave legislation. The Deputy argues that if a person has to leave under force majeure or because of an emergency, perhaps halfway through a working day, it should not be counted as a full day. It is counted as one full day of the three permitted under the Parental Leave Act, 1998. We are clearly in no position to change that as part of this Bill, but I proposed a review of legislation, at an appropriate time, and such a review is currently under way in another Department. I realise I am out of order, but I wanted to clarify the matter.

Amendment agreed to.

Amendments Nos. 59 and 60 not moved.

Mr. T. Kitt

I move amendment No. 61:

In page 22, line 30, to delete "£1,500" and substitute "3,000 (£2,362.69)".

Amendment agreed to.

Mr. T. Kitt

I move amendment No. 62:

In page 24, line 10, to delete "£1,500" and substitute "3,000 (£2,362.69)".

Amendment agreed to.

Bill reported with amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Broughan

I thank the Minister for accepting, both on Committee Stage and on this Stage, a number of Labour Party amendments and parts of amendments and for accepting the spirit of others and in that way seeking to improve vital legislation. In particular, I commend the staff from the Department of Enterprise, Trade and Employment who have very graciously and thoroughly briefed the Opposition in respect of many aspects of this Bill as well as doing the complicated work of drafting it. I congratulate the Minister of State, Deputy Kitt, on bringing the Bill to this stage.

The position of carers in our society is one of the great challenges we face. The Labour Party is determined that after the forthcoming general election one of its most important targets will be the recognition of the caring function at the heart of Irish life, probably through a constitutional amendment and through the implementation of legislation such as we have before us today. The key issue remains the much hated means test in relation to carer's allowance, which is the responsibility of the Minister for Social, Community and Family Affairs, Deputy Dermot Ahern. However, the introduction of carer's benefit and the accompanying carer's leave is an important step forward. Although carer's benefit has been in existence for a year and a half, we on this side of the House regret that it has taken a year and a half to reach this stage in connection with carer's leave. Now, at long last, the two sides of the equation can be brought together.

I ask the Minister of State to reiterate the comments he made about the 214 people who qualified for carer's benefit but who will not have the protection of this Act as they return to work. With that caveat I thank the Minister of State for the debate and congratulate his staff and the Department for getting the Bill through this House.

Mr. Perry

I wish to be associated with Deputy Broughan's comments. I congratulate the Minister and his staff on steering this very important legislation through the House. This country is extremely lucky to have 50,000 full-time family carers who save the State up to £650 million every year by working 24 hours a day. We should never lose sight of that.

I appeal to the Minister to look again at the means test because carers perform an invaluable service. The Carer's Leave Bill will allow people to leave their jobs to look after relatives at home, and this will mean a considerable saving for the State which should allow the Exchequer to give more money to people who take on the role of a carer. This country is blessed with carers who look after people around the clock. In the future we should consider giving more of them an allowance. The allowance, at £96 a week, is a little over half the minimum wage, and we should also examine that.

This legislation is necessary. People want a permanent structure for taking carer's leave. This legislation will put it on a legal footing. I appeal to the Minister of State to ensure this is enacted before the summer recess because a large number of people are waiting to avail of it.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt)

I thank Deputies Broughan and Perry for their work on this legislation not just today but before today. I am determined that it should be enacted before the summer because it is important to have this legislation in place. I also thank my officials who have worked tirelessly, as Deputies know, because they have briefed many Deputies here. They have worked not just on this legislation but on another Bill on part-time workers which we are waiting to get into the system. I hope we will be able to do that sooner rather than later. I also thank the officials in the Department of Social, Community and Family Affairs with whom we have worked closely, and my colleague, the Minister for Social, Community and Family Affairs, Deputy Dermot Ahern.

Deputies have acknowledged the importance of this legislation. It is interesting that it has not stemmed from an EU directive but is home grown. It fits into the family-friendly approach we have tried to pursue at this level of Government. I have acknowledged the role of ICTU and IBEC. I have also commented on amendments from both quarters here. In trying to steer a middle ground, my motivation in initiating this process was to try to help workers. In acknowledging that many employers have already allowed 214 employees to avail of carer's leave in an informal way which was not bedded down in legislation, I appeal to them to treat those workers in the same way as workers will now be dealt with under this legislation and make sure they are allowed to return to work.

I thank the Deputies opposite, my officials and the Ceann Comhairle. We have managed to get this legislation through faster than I expected, and I am pleased to have been able to do so. There is other legislation in this area which fits in with the family-friendly policies the Government is pursuing. I am convinced this legislation will provide a tremendous opportunity to those who want to take 15 weeks out of work to carry out a very important service. I am conscious that many people are currently doing so, often under pressure, for example, where both parents in a family work. From my contact with people I know they are anxious to explore this opportunity. We will make sure information about this new legislation gets into the public domain. The Bill goes to the Seanad around 19 June. I assure the House that the legislation will be in place before the summer recess.

Question put and agreed to.