Parent's Leave and Benefit Bill 2019 [Seanad]: Second Stage

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

I am pleased to address the House on the Second Stage of this Bill. It has its origin in a commitment in A Programme for a Partnership Government to increase paid parental leave in the first year of a child's life. Leave for parents at this time has a significantly positive impact. It benefits children. It benefits parents and, in particular, it enables fathers to play a greater role in caring for their children. It promotes gender equality and supports higher levels of female participation in the labour force because it facilitates women in combining paid work with caring for their children.

The Government approved the general scheme of this Bill in April with the scheme being published on 23 April last. The Oireachtas Joint Committee on Justice and Equality waived prelegislative scrutiny because of the urgency of the Bill in view of our commitment to introduce the leave and benefit with effect from 1 November 2019. I am very grateful to the committee for this and we, for our part, have endeavoured to present to the House what I believe is a well-considered proposal which expands significantly the family leave available to new parents. We have had regard also to the need to minimise the burden that this will bring for employers.

The Bill provides for parent's leave of two weeks' duration, which can be increased to a maximum of nine weeks by order of the Minister for Justice and Equality. It also provides for the payment of parent's benefit where the parent fulfils the relevant eligibility conditions. No sharing of leave is permitted, as we want fathers to avail of the leave to the greatest extent possible.

Section 2 defines "relevant parent", that is, the person who will be entitled to parent's leave. A relevant parent, in the case of an adopted child, is, one, the adopting mother or sole male adopter of the child; two, the spouse, civil partner or cohabitant of the adopting mother or sole male adopter; or, three, where the child is adopted jointly by a married couple of the same sex, a couple that are civil partners of each other, or a cohabiting couple of the same sex, each of the couple, and, in cases other than adoption, the term means, one, a parent of the child; two, the spouse, civil partner or cohabitant of a parent; or, three, a parent under section 5 of the Children and Family Relationships Act 2015 where the child is a donor-conceived child. In some situations, more than two people can be relevant parents, for example, where the parents are not married to each other and either or both parents are married to other people.

Section 5 creates the entitlement to paid leave for a relevant parent of a child who is adopted or born on or after 1 November 2019. The purpose of the leave is to enable the parent to provide, or assist in the provision of, care to the child. Therefore, a person may be a relevant parent but will not be entitled to the leave if he or she is not fulfilling this purpose. Leave can be taken as a continuous period or in minimum periods of one week.

Section 6 provides that the relevant parent shall give the employer six weeks' notice of the intention to take parent's leave. This is so that an employer can plan for the potential disruption that may arise when the employee takes the leave.

Section 7 provides that the leave shall be taken in the first year of the child's life or, in the case of adoption, in the year after placement. Notwithstanding this, the period is extended where the parent cannot take the leave where the leave is postponed for specified reasons such as where it is postponed by the employer.

Sections 8 to 10 provide for the sequencing of types of leave where a parent is entitled to more than one type of leave. The general approach is that maternity, adoptive and paternity leave are to be taken first as they are inherently related to the event of birth or adoption.

As parent's leave is for the care of the child over the first year of life, it should naturally follow the other forms of leave.

Section 13 provides for postponement of leave at the initiative of the employer where the taking of leave would have a substantial adverse effect on the business or organisation. An example of this would be where there are seasonal peaks. The postponement may last up to a maximum of 12 weeks. Postponement under this section can only take place once in respect of each period of leave.

Section 14 provides that the parent may request the employer to postpone leave if the child is hospitalised. This reflects similar provisions in the legislation on maternity, adoptive and paternity leave.

Section 15 provides for continuation of entitlement to leave where the child dies. Maternity, adoptive and paternity leave operate in this way too.

Section 16 provides for the entitlement of an employed surviving parent to the untaken leave if a parent dies. The transfer of leave on death is also a feature of maternity, adoptive and paternity leave.

Section 19 provides for the protection of employees from penalisation if they propose to exercise or have exercised their entitlement to parent's leave. This is a standard provision in family leave legislation.

Section 20 contains a general right to return to work on the same terms and conditions that applied prior to the parent taking leave.

Part 4 deals with resolution of disputes and these can be referred to the Workplace Relations Commission.

Part 5 provides for the introduction and payment of parent's benefit in the Social Welfare Consolidation Act 2005. Section 29 introduces a new Chapter 11B to the Social Welfare Consolidation Act 2005 which sets out the general qualifying conditions for receipt of parent's benefit payable for two weeks to employees and the self-employed, the required social insurance contributions, which are aligned with the requirement in place for maternity and paternity benefit, and the weekly rate of benefit payable, which is also in line with that for maternity and paternity leave, that is, €245 per week at present. The benefit will be payable in a continuous period or in individual blocks of one week.

Part 6 contains miscellaneous provisions, many of them technical, including consequential amendments of other Acts.

I have described the provisions in the Bill. I now want to mention two provisions that are not in the Bill because of the pressure of time in bringing it to enactment before 1 November. These provisions relate, first, to adoptive leave for male same-sex married couples and, second, to the extension of breastfeeding breaks.

We are all agreed on the principle of enabling same-sex couples who are adopting jointly to be able to take adoptive leave. The general scheme of this Bill, published in April, proposed to address the lacuna whereby a married male same-sex couple cannot avail of adoptive leave. As currently constituted, the Adoptive Leave Act 2005 essentially only allows an adopting mother to take adoptive leave. The adopting father, other than a sole male adopter, is entitled to adoptive leave only where the adopting mother dies. Over the course of drafting, it became apparent that, in seeking to address an inequality, another inequality could be created. It would be unfair not to reform the adoptive leave regime to allow opposite-sex couples the same choice as to which of them should take adoptive leave.

My Department is working on provisions which will give all adopting couples, whether same-sex or opposite-sex, the right to select which of them will be the qualified adopter, that is, which will get adoptive leave and benefit. In my view, giving the option to select the qualified adopter to same-sex couples only would be discriminatory as, unlike the situation with maternity, there is no biological reason it is always the adopting mother who gets adoptive leave.

Introducing this reform is complex. This is why it was decided to insert these provisions into a later Bill so as not to jeopardise the enactment of the Parent's Leave and Benefit Bill by 1 November. I am acutely conscious of the many parents waiting to take parent's leave. It is important that they should not have to wait longer for this important entitlement.

A number of amendments were tabled on this matter and have been ruled out of order. I would think that Deputies Martin Kenny, John Brady, Jim O'Callaghan and I are on the same page as far as eliminating the anomaly regarding, in particular, male same-sex married couples is concerned. However, I do not want to end one form of discrimination by creating another. Therefore, we are looking at more extensive amendments to the legislation than I think the Deputies envisaged.

As regards timescale, the Government has been informed of the aim to insert these provisions into a forthcoming Bill, ideally the Social Welfare (No. 2) Bill which will be before the House in November and the purpose of which is to give effect to measures in the budget. I plan to present legislative proposals in this regard to Government next week.

The other measure that has arisen is a provision to extend the period during which breastfeeding breaks can be taken from 26 weeks to two years. This is a commitment in First 5, the strategy for the first five years of a child's life. The extension of breastfeeding breaks is also an action in the national strategy for women and girls. Work is under way in my Department on legislative proposals in this regard.

I hope this information is of assistance to the House. In conclusion, I look forward to hearing the views of Deputies and I commend the Bill to the House.

I call Deputy O'Callaghan, who is sharing with Deputies O'Loughlin and Murphy O'Mahony.

I welcome the opportunity to speak on this important legislation. However, I do not think it is helpful that we have to take all Stages of the legislation within three hours. It is very important legislation and while we welcome it, as legislators, we should be given an opportunity to consider it, table amendments and have them discussed in due course, and then reflect on the Second Stage debate with other affected members of the community who may have contributions to make to us in light of the debate that took place in the House. As they say, however, we are where we are.

I welcome the fact this legislation is coming in to provide for parental leave and benefit, which are both to be welcomed and both long overdue. However, it has to be pointed out that there is a significant problem with this legislation in that it contains something much more than what the Minister of State describes as an anomaly. It contains a discrimination against same-sex male couples who are married, and I believe we need to point that out. It is a matter of concern to me that this legislation will go through the House with that piece of discrimination contained within it.

I know the Minister of State is anxious to get this legislation enacted and I note what he says about bringing forward further legislation in November. However, I want to remind the Minister of State, who I know is well-intentioned in these matters, of what the Government said when the scheme of this Bill was publicised for the first time last April. It was stated that time by the Government that the Bill proposed to take "the final steps needed to enable male same-sex couples to receive adoptive leave and benefit. This is further progress towards ensuring equality for all families". We were given that commitment by the Government and also a specific commitment by the Minister, Deputy Zappone, and the Minister, Deputy Doherty, but, alas, it is not within this legislation.

We need to point that the legislation, as it stands, constitutes a form of discrimination against same-sex males who are in a relationship. In that respect, they are treated differently from same-sex females who are in a marital relationship, so it is a form of gender discrimination against same-sex male couples. Similarly, it is discriminatory because a straight man who is adopting would not find himself in the same position as gay men will find themselves in respect of seeking parent's benefit and leave, and so, in that regard, it is a form of sexual orientation-based discrimination.

I do not think we can just brush this over by saying we will deal with it in due course. It is highly regrettable, considering the steps this country has made in terms of equality for people who are gay in the past five to ten years, that we are introducing legislation that blocks out a section of them. We should not try to gloss over this. It is a concern to me and I know it is a concern to my colleagues in Fianna Fáil.

Nonetheless, we will support this legislation. We had tabled amendments to deal with removing the discrimination against same-sex males. Unfortunately, and there is no criticism of the Chair, they have been ruled out of order because it is contended they are charge on the Exchequer. We are now left in a situation where we had tabled amendments but they have been ruled out of order and we cannot progress them. At the same time, we have this useful legislation that we want to see enacted but it contains this discriminatory provision. Nonetheless, we are going to support it while holding the Minister of State and the Government to account in order that they will bring forward the important legislation to remove this discrimination by November. That has to be expedited.

I have a lot of regard for the Minister of State, Deputy Stanton, but my concern is that he is only at times in the driving seat of this Government. When he is, things can get done but when he is not, other people let things drift to the back burner, and I am concerned this would be put on the back burner.

In general, it has to be recognised that parents, irrespective of their gender or sexual orientation, need to spend more time with their children. It is invaluable for a child to have the benefit of spending time with their parents when they are at a very young age. The purpose of this legislation is to provide parental leave for parents when their children are under the age of one. At present, the legislation provides for a period of two weeks parental leave and the payment of a parent's benefit.

It also provides that this can be increased to up to nine weeks. We need to get away from the perception that life is all about work. We need to recognise that parental responsibility does not rest, as it did traditionally, solely with the mother who brings up the children. Irish families have become more complex and different over the years. What is absolutely fundamental is that the parents of a child need to spend more time with that child because all the surveys and all the research indicate that the more time parents can spend with a child, the greater the benefit to the child.

Like my colleague, Deputy O'Callaghan, I am pleased to have the opportunity to support the Bill and to speak on it. It is important that it provides each parent of a child under the age of one with two weeks' paid parental leave. It is concerning, however, that the Bill, when it passes, will come into effect on 1 November, which is only two weeks away. This does not really give employers a lot of time to put arrangements in place, which is extremely regrettable.

When the general scheme of the Bill was published in April, it was promised that it would remedy a lacuna in law which meant that married gay fathers were not entitled to adoptive leave or benefit. It is really bad that while the Government has been promising to rectify this, it is not happening. We were very surprised when the Bill was published a week ago to see that that provision had disappeared. While I have respect for the Minister of State, the excuse that the Government did not have time to draft the relevant provisions is simply not good enough. This has very real consequences for the LGBT community, and it is completely discriminatory against gay fathers, and indeed their children, who would benefit, as we all know, from extra time with their parents, no matter their sex. This legal loophole is not being rectified, and again, it is disappointing that the amendments Fianna Fáil tabled to address it have been ruled out of order. We absolutely want to work to ensure that this is addressed because it is important.

The final point I will make concerns the shared maternity leave Bill that my colleague, Deputy Lisa Chambers, and I introduced last year. That Bill would provide for the sharing of maternity leave. Again, this would be of great benefit to parents and we would like to see it progressed by Government.

As my colleagues have indicated, Fianna Fáil supports the provisions of the Bill. However, it needs to be more inclusive in order to ensure that all parents, no matter their sexual orientation, have equal access to this benefit. Parents, no matter their sexual orientation, love their children, whether birth children or adopted children. Those first few weeks of a baby's life are to be cherished, and the Bill needs to be inclusive to provide for all circumstances of both parents as well as to allow time for employers to adapt to these new measures.

It appears that the Government has not engaged properly with employers in the drafting of the Bill. The Minister of State advised the Seanad that the Government ran out of time when compiling the Bill. This is clearly not good enough and simply a further example of how this Government is reactive rather than proactive. The shared maternity benefit Bill, introduced by Fianna Fáil in July of last year, allows for maternity leave to be shared among parents - with the approval of the mothers, of course. This is more in line with many EU countries where maternity leave is shared. Such an approach is more in line with the hectic lifestyles of modern families living from day to day, and I ask the Minister of State to consider it.

I welcome the Bill. To see it moving through the various Stages represents progress. I concur with Deputy O'Callaghan that it is unfortunate we find that it has been rushed in such a manner that it must go through all Stages together and that there is no opportunity to debate it properly and to go through it. It is quite a piece of legislation, running to over 40 pages and making changes to much existing legislation. It is unfortunate, therefore, that it must be considered in this manner. Frankly, I do not understand why it could not have been progressed sooner in order that we could have had a proper and adequate opportunity to debate it on Committee Stage and all other Stages. We are where we are, however, and we will support the Bill and want to see it come into force as quickly as possible.

Like those from other parties, Sinn Féin Deputies tabled a number of amendments to various aspects of the Bill. From the very beginning, it was considered that the Bill would cover every child born or adopted in 2019. For this reason, we sought to have it come into force such that it would cover every child born or adopted from 1 January of this year. The amendment in this regard was ruled out of order.

Then there is the clear problem with a male partner in a same-sex couple not being included in the Bill's provisions. I spoke to the Minister of State earlier about all this and I thank him for his engagement. He assures me, as he did in his speech, that this will be covered in the social welfare (No. 2) Bill and resolved in the next month to six weeks. From my point of view, and I am sure from the point of view of others here, we will hold him to that in order to ensure it happens because it is important. As previous speakers stated, it is a poor reflection on the current situation that any sector or individual would find himself or herself as an afterthought or left out. In that respect, many would view this as a case of equality delayed being equality denied. We do not want to see that happen. The Minister and those who drafted the legislation may not have set out with that intention, but it has come to pass and that is how matters stand.

We must always consider that all parents deserve the maximum amount of time with their children, particularly in their formative years. As someone who has four children, I remember that the very early weeks and years of their lives were vital. Those years are vital to parents, siblings and everyone else around the children. Bonding happens at that very early stage. Anything that can be done from a legislative point of view to ensure that we provide for parents to be there for their children and to get that bond in place as early as possible can pay huge dividends later in life as they go into their teenage years and early adulthood because that bond stays with them. From a young age, children will always talk about their earliest memories. It is usually something that happened with a parent, some intimate moment, a moment of joy or an expression of something that happened very early in the child's life. Usually, in that moment, the parent was the one who was there. I hope that in our modern society, when children look back to their earliest memories, they do not involve childminders or crèches. That would be very unfortunate. I understand that modern society brings with it huge pressures, that couples must both work to pay mortgages, to manage or to survive and that this means that sometimes in those formative years children are dropped off at 7 a.m. and not picked up until 8 p.m, and it is bedtime after that. They find they do not have that sense of oneness with the family unit. That is very unfortunate and, in light of it, I often wonder how much progress our society is actually making. We are where we are, however.

We will support the Bill. A number of amendments will come up and we will look at them. The issue of proper consultation with employers has been raised. I have had some communications about that matter.

That said, the Bill must be focused on that so as to ensure the employee gets the maximum benefit from this legislation.

Naturally enough, employers will always say they need to be considered, as they do, but at the same time this Bill will deal with a very small fraction of the time a person will be in employment. The vast majority of employers will be able to deal with it adequately.

I thank Deputies for their consideration and I acknowledge again the lacuna in the adoptive leave legislation. There is no discrimination in this Bill but it is in other legislation and we want to correct it. I am committing to it. I am sorry we are not in a position to do it now but we want to ensure we get this right. Deputies would be the first to take me to task if we brought something forward that led to other errors but I am very anxious to get this right. I had hoped to be able to do it now but it is unfortunate that it proved more complex than we thought.

Deputy Fiona O'Loughlin spoke about notice. This comes into force on 1 November and six weeks of notice is required in the legislation. People will have that amount of notice and I am clarifying this in case people think it will just happen on 1 November. I agree with Deputy Kenny's comment that the first year of a child's life and those early memories are so important, so it is best if children are with their parents. That is the intention of all of us in this House. All kinds of research has indicated that early memories are very important in this respect. I thank Deputies for their support of the legislation and we want to see it progress so its provisions can come into force by November.

Question put and agreed to.

When is it proposed to take Committee Stage?