Maternity Protection of Employees Bill, 1981: Committee and Final Stages.
Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill".
On the question of interpretation, this section says:
"employer", in relation to an employee, does not include an employer who employs that employee—
(a) on a permanent basis for less than 18 hours in each week, or
(b) under a contract of employment, or otherwise, for a fixed term of either less than 26 weeks or of which there are less than 26 weeks still to run;
The interpretation of employer in regard to the employee having to be there on a permanent basis for more than 18 hours each week and for more than 26 weeks can bring into this Bill the first discriminatory and unfair aspect. The privileges which a Bill such as this can convey should extend to our less fortunate people who have to go out and seek work, such as mothers who have to go out to earn some extra money. In such cases they are much more likely to seek employment for a limited number of hours per week. The figure of 18 hours and also of 26 weeks can be discriminatory against those people. The question of the 18 hours comes very close to the number of qualifying hours in certain categories. Teachers could be one example where the qualifying number of hours worked per week is about 22. We are coming very close to a line between 18 hours and 22 hours where all the benefits of this Bill do not extend for the sake of a four week period of work. I am open to correction on the 22 hours for teachers but, if I am correct, for the sake of four hours we are depriving many women of the privileges of such a Bill as this. I would like to hear the Minister's opinion on the two matters I have raised.
I support Senator Markey. For the real advancement of women to make it possible for them to join in the economic life of the country, the trend should be towards the provision of far more part-time work. Anything in any enactment which makes people disadvantaged who work less than a certain number of hours in the week is a great pity. I am aware that the figure of 18 hours a week applies right across the board for social welfare benefits and various like areas but it is about time we examined that question and discussed why we have arrived at the magic figure of 18 hours a week. As well as making this minimal provision in this Bill for the maternity protection of employees we should be removing all the other real barriers. As the Minister said in his opening speech here, this is one more barrier being removed to the employment of women. We should set ourselves to really removing barriers and one of these is having to work full-time. While I support Senator Markey, I would like to know the reason for that figure.
I support both Senator Markey and Senator Hussey in relation to the 18 hour limit. I know of course that the 18 hours is a figure which is used in the social welfare benefits across the board, as Senator Hussey said. However, in this particular circumstance it is particularly important that the people most likely to work part-time are, in fact, mothers of young families, the very people to whom this kind of protection should apply and therefore it is important in this area not to discriminate against people who have part-time employments. It is indeed the very mothers of the young families who will be working in part-time jobs and are therefore going to need protection by way of maternity leave and being able to return to their jobs.
I support the previous speakers on this matter. One of the reasons why they cannot satisfy this 18 hours a week condition is because very few employers pay any attention at all to organising shifts within the school hours. If that was organised I feel that this discrimination would not need to be there.
The matter raised by Senators on the question of hours is linked to the social welfare provisions, because of the connection between this Bill and the new social welfare maternity allowance. The new maternity allowance will be payable only to employees who are on maternity leave under this Bill. It has been necessary to define employee and employer in the way they are defined under the social welfare code. If the Department of Social Welfare were to change their definitions at any future stage to bring within the scope of the social welfare code any of those employments which are currently exempted ones, then section 3 (2) of this Bill contains provisions empowering the Minister for Labour to extend the scope of this Bill accordingly and he can do it at any time that the Department of Social Welfare change their code.
Because of the link between the two Bills we were bound to take into account the code of the Department of Social Welfare.
I could not quite understand what Senator Markey meant in relation to the question of the teachers who work 22 hours. If they are working 22 hours then, of course——
I just drew the contrast that for a period of only four hours you have one case where a woman who works 22 hours gets all the rights under this Bill and a woman who works fewer than 18 hours does not have any rights. For such a small difference, four hours, it is unfortunate in a Bill which can do so much to help women, that it does deprive women——
Unfortunately we are tied to the social welfare code in relation to this. The Bill contains provisions for change if the Department of Social Welfare change at any stage. The 18 hours is not sacrosanct. In time it may come down and if it does, there is provision in the Bill to change it.
If the 18 hours is not sacrosanct it seems a pity that we have put it in at all. I understand the reason why it was put in. The 18 hours provision if we talk about part-time work, a five day week and about people working for three hours five mornings a week, excludes with one fell swoop a great many women who need and want part-time work. They are not going to have protection unless a change is made in this Bill. I worry about this because times are economically very difficult and women's employment does not receive the kind of consideration it gets in the good times. To put something into law now with a figure of 18 hours in it may well get stuck there because of the hard times. I would have preferred not to have it there at all although I understand the reasons for it.
Question put and agreed to.
Section 3 agreed to.
Question proposed: "That section 4 stand part of the Bill."
Section 4 (5) provides for the Minister to consult organisations representing employers, trade unions and bodies analogous to trade unions as he considers appropriate. Would the Minister not consider consultations with bodies such as the Council for the Status of Women because it was largely such a body that brought about this Bill? There are many cases where the employees concerned would not be members of trade unions and the Council for the Status of Women and other bodies could represent such cases and they would certainly submit arguments on behalf of those women who are not members of trade unions. The wording "bodies analogous to trade unions" does not cover them in this instance.
Does the Minister see any function for the Employment Equality Agency in that list of bodies to be consulted? As Senator Markey points out, there are a great many women who are not members of trade unions and there are a great many women who are not members of the Council for the Status of Women and are not represented by them. The Employment Equality Agency, despite their short staffing and the fact that they do not have enough proper premises and enough money, seem to be the correct body to monitor this kind of legislation. Do they have a function in monitoring this legislation as they do in monitoring other legislation that we had protecting employees in the 1973-77 period?
In relation to Senator Markey's question about the Council for the Status of Women, that is covered in line 31 in the phrase "bodies analogous to trade unions". The Employment Equality Agency have not been consulted and they do not see their brief extending to this.
Question put and agreed to.
Section 5 and 6 agreed to.
Question proposed: "That section 7 stand part of the Bill."
Section 7 says:
"the expected week of confinement" and "confinement" have the meanings respectively assigned to them by sections 24 and 28 of the Social Welfare (Consolidation) Act, 1981;
The people who wrote that little paragraph have set out to make it all very difficult for ordinary people like myself to understand. Why do those phrases have to refer to another Act? Could we not have set out clearly in this Bill what they actually mean, since this Bill has all to do with maternity and maternity leave? It is trying to obscure things by not putting clearly what those terms mean, and by referring us to other Acts.
Like the Senator, I, too, sometimes wonder why. The draftsman suggested this and because of the link between the social welfare code and between this Bill and the Department of Social Welfare's new maternity Act, it is essential that the definition be the same.
Women should be able to read about their rights clearly in one Act. My objection to it is that it is obscure.
While appreciating the point that Senator Hussey makes, generally speaking, the ordinary woman in the street finds these kinds of Acts difficult enough to read, even if the definition is set out. In the case of some previous Acts that apply to employment, the Minister's Department have produced some much clearer and plainer leaflets that are available to ordinary members of the public. Perhaps the Minister will tell us if this will or can be done in the case of this Bill. That might very well be of more help to the ordinary woman worker than having her try to plough her way through the Act regardless of whether the definitions are in it or not.
I would assure both Senator Hussey and Senator McGuinness that there will be an explanatory leaflet which will make clear in lay woman's language what the contents are and what the definitions will be.
Question put and agreed to.
Question proposed: "That section 8 stand part of the Bill".
On section 8 (2) I just want to clarify absolutely that we can amend subsection (1) without legislation, just by order. It states:
(2) The Minister may by order, made with the consent of the Minister for Social Welfare and the consent of the Minister for Finance, amend subsection (1) so as to extend the period mentioned in that subsection.
That means that that 14 consecutive weeks period can be extended without legislation, by order.
It will be done by an affirmative order but that means that the order will be laid before the Houses.
Section 8 is where we state the length of time of the maternity leave we are giving women now and this is one of the major parts of this Bill. I am not happy with 14 weeks. It does not really compare favourably with modern thinking in this area. If we take it later on with the provision for additional maternity leave, it adds up to a package of something very ungenerous. We have for a very long time in this country paid a great deal of lip service to the sanctity of the home and the role of the wife and mother and how the common good could not be achieved without them and so on. Yet when it comes to actually getting down to brass tacks and saying that we will acknowledge the extreme importance of motherhood the inferior position of the work day and the rigidity of the work schedule in general to maternity and the important role of nursing children it is a pity that we are so ungenerous. There are much more generous periods of maternity leave in other countries which, when added to the additional leave they can take, leave us only in the halfpenny place.
In West Germany, for example, where they have had really to face up to the importance of motherhood and maternity because they have a falling population, they are giving 14 weeks plus four months maternity leave. In the public service in Denmark they are giving three months extra maternity leave plus five months at half pay. In France, they are giving 16 weeks and an extension up to 10 months; in Italy five months and in Luxembourg 16 weeks. For a country whose Constitution specifically values its mothers we are being less than generous in this provibion of 14 weeks. I understand that the Irish Congress of Trade Unions were originally looking for much more than this and that we have arrived at this 14 weeks by, presumably, a period of bargaining. In this bargaining women have lost out which points to the problems that women have when it comes to being consulted and when it comes to being real social partners. Of course, they are not social partners at all, because they are not consulted sufficiently on a wide enough basis about what goes on in this respect. The 14 weeks is really far too short.
I agree that the maternity allowance is not as good here as it is in the rest of the EEC countries. The ICTU deputation and not the Minister were anxious to see the position being as good as legislation on the Continent but in the absence of being able to get agreement on that they were pleased to have the concept accepted as we are the last country in the EEC to give effect to it. In that sense, Senator Hussey is correct about the periods of time and so on, but on the other hand there is a welcome there from the trade unions and since it is part of the national understanding we are anxious that this would go through as quickly as possible.
We are better than Greece and the Netherlands, and Germany and Belgium are the same as us. France and Luxembourg have just two weeks more than us. Taking it all in all we are approximately in the middle of the EEC countries.
I am sure that the Minister's sources are extremely reliable but I am giving examples of parental leave from a working document presented to the European Parliament on 29 January 1981 which sets out a list of what is available in all the countries in Europe. It says that in West Germany, maternity leave amounts to 14 weeks at full pay, that since July 1979 it has been possible to obtain additional maternity leave of four months and that in that case the maximum pay is 750 deutschemark per month. That is slightly better than our provision of four weeks additional maternity leave. If that document is wrong, I should be very interested to hear it, because there are many things in it that I would be worried about if they were all wrong.
This subsection deals with the statutory entitlement to a minimum period of not less than 14 consecutive weeks. In relation to the minimum period we are better than Greece and the Netherlands and we are on a par with Germany and Belgium.
Question put and agreed to.
Question proposed: "That section 9 stand part of the Bill".
What is the effect of failure to comply with having to give four weeks notice before the commencement of maternity leave and the submission of a medical certificate? We all understand the emotional attitude of the woman involved at that time and we might be unduly restrictive in this regard. I do not see any reference to failure to comply with this section. If there is no reference to failure to comply with this section why do we insist that she give four weeks notice and submit a medical certificate at the same time? This trend is noticeable in the Bill in other sections when it comes to the additional maternity leave.
What about the situation, when this Bill becomes law, of people who are nearer than four weeks to the expected time of their confinement? I am sure that there will be many thousands who could benefit from this Bill but I am not aware of whether they can or cannot. It is extremely important for us to know that.
This is an appropriate time to comment on something that I should have perhaps commented on at the commencement of Committee Stage. Senator Robinson forced the issue about Committee Stage being held over until this week. Her request was very well-intentioned and she intended to put down amendments. Unfortunately due to her own situation something very urgent cropped up. She could not pursue her amendments one of which would have been in respect of section 9 in relation to the principle of notification. In the case of the Protection of Young Persons (Employment) Act the employer is obliged to supply or to publish or display an abstract of the Act. I quote from section 19 of the Protection of Young Persons (Employment) Act, 1977:
(1) Every employer shall display at the principal entrances to the premises where any of his employees work, and in such other places as an inspector may require, in such a position that it may be easily read by employees so employed, the prescribed abstract of this Act.
(2) An employer who fails to comply with the provisions of this section shall be guilty of an offence.
I imagine that Senator Robinson would have wanted that in accordance with the Conditions of Employment Act, 1936 if an employer wants to change or alter shifts or alter the working conditions of people, he should have to display an abstract of what has been agreed to by the Minister and himself or under his licence. With the Protection of Young Persons (Employment) Act the abstract has to be displayed. Here we have a situation where the employee is obliged to give notification of her intention to take maternity leave but there is no obligation on the employer to display the abstract whereby the employees can be notified of their rights under the Act. Under the Conditions of Employment, Act 1936, where people apply for licences and so on it is a very useful thing for employees to know if something that might affect their working lives is happening. Generally speaking, we were talking about a pamphlet being issued earlier on, running alongside the pamphlet. The same principle applies in section 12. The employee must give the notification yet the employer under no circumstances in this Bill is obliged to display the conditions in an abstract of the Act under which they are obliged to function in this area.
I join Senator Harte in seeking the display of a notice of this kind as is done under quite a number of other Acts affecting employment so that the employee is made aware of the fact that this notification has to take place particularly as there does not seem to be any discretion as to dispensing with this notification. I would like the Minister to let us know whether even the employer can dispense with the necessity if he feels that his employee was ill-informed or has just forgotten it by a day or two. As Senator Markey said, there is nothing to tell us what happens. If the notification is not brought in does it mean that automatically the woman is not entitled to any of the maternity leave, or is it cut down, or what happens? Where there seems to be no discretion in whether she is notifying in four weeks time or not we should at least make sure that she is made as aware as possible of her duties under the Act.
In relation to the point raised by Senator Hussey, an employee who found herself claiming under this Act shortly after 6 April could qualify for a reduced benefit. The purpose of section 9 is to make the employee's entitlement conditional on her having given her employer prior written notification of her intention to take maternity leave and having supplied the employer at the same time with particulars concerning the pregnancy, that is a certificate confirming that she is pregnant and indicating the week in which it is expected that the baby will be born. This was a provision the importance of which was stressed by the FUE during the discussions. It was felt by them that the employer should be kept fully informed by the employee at all appropriate stages of the exercises of her statutory entitlement so as to enable the employer to plan ahead in connection with absences from work arising out of pregnancy.
I agree with Senators that there is a need for employees to be informed adequately about the various entitlements. Having been in a number of factories and having looked for notices and seen them all over the place, even in areas where they could not be read properly, I feel it would be much more appropriate if we ensured that the women are advised of their rights under this Bill by making available suitable explanatory material at clinics all around the country, to doctors, community centres and at the various offices of the National Social Services Council. I assure the Seanad that in addition the FUE and the Irish Congress of Trade Unions will be giving publicity to the Bill. This was mentioned in the debate in the Dáil. The ITGWU journal, Liberty has an article about the Bill in its current issue.
The position in regard to the posting of an abstract is not quite the same where this Bill is concerned. Workers in factories are interested in the provisions of the Factories Act, to see whether it is being complied with by their employers: otherwise the workers' health and safety could be put in danger. In the case of this Bill, and I accept the importance of what Senators have said, it is a question of imparting information to employees about their right to maternity leave. I honestly feel that the channels that we propose to use for this purpose will be the most appropriate ones.
I accept the Minister's point.
The Minister said that failure to comply with section 9 as regards notice and the submission of medical certificates would render the person entitled to lesser rights than if she had complied. The Minister said such is provided in the Bill. Is it provided in this Bill or is it in the Social Welfare Bill, 1981 that that lesser entitlement is provided for owing to failure to comply?
What does the Senator mean by the lesser entitlement?
The Minister said that if a person does not apply with the proper period of notice or the submission of certificates, such a person would not receive the full entitlement.
No, I said that in relation to a question by Senator Hussey at the beginning. I understood the Senator to say that at the beginning hundreds of people would be applying for benefit under the Bill. I said that at that stage quite a number would qualify for reduced benefits.
I do not understand this. I am talking about when this Bill becomes law and, say, a woman is going to have a baby about a fortnight after the Bill becomes law. She will not have had time to notify her employer of her intention to take maternity leave or give a doctor's certificate four weeks before. She is required to take maternity leave for four full weeks before the expected date of confinement. When this Bill comes into force, say on 6 April, what will be the position of women who are going to have babies well before 6 May? I am not a bit clear about that. That is my problem.
Employers must have four weeks notice in order to engage a substitute to replace the employee who is taking the maternity leave. If the employee, due to the date of her confinement, is unable to give four weeks notice before her baby is born, then she may start her post-birth leave four weeks after she eventually gives notice to the employer, that is, by going on annual or sick leave. This is about the only time this will come into effect, just when the Act is coming into force. She can qualify for a part payment or she can start her post-birth leave four weeks after she has eventually given notice to the employer.
Could I just take the Minister up on this one again? Say the Bill has been in operation six months and a woman expecting a baby gives three-and-a-half weeks notice. Do I take it that she forfeits her employment rights as a result of not giving four weeks notice?
This is a rather excessive penalty. One has to take account——
She does not have to give the notice herself. It can be given to her employer by someone on her behalf.
But there is no special time. If it is given three weeks and six days before her confinement period, she forfeits her employment rights and all the other privileges.
The period is four weeks. There are certain exceptions, which arise later in the Bill.
This is precisely why I was suggesting the possibility of some sort of discretionary clause as one would have in normal legal agreements, that this notice shall apply except by agreement between the parties. Though I very much appreciate the point that the Minister said was being made by the FUE, if you are running a large factory full of female employees, you would obviously need notice, so that you know what is happening. Quite a number of women, and particularly married women, are in employments where there are very few people employed and very often the man or woman who is employing knows that they are pregnant. If they just slipped up by a day or two in the notice, their employer would be quite agreeable to say, "We will take it that you have applied four weeks in advance". I suggest there should be some element of discretion in this, not necessarily that the employer would be forced to accept this but that if the employer was agreeable, if he knew the situation that obtained, that she should not be cut off from her entire entitlement just because of a slip up like this.
I accept everything the Senator has said, but there has to be some provision whereby some onus must be also put on the employee. I will go back to Senator Hussey. The explanation is quite long. If an employee's baby is born on 6 April 1981 — this is the worst example you can take — she would be able to comply with section 9 (1) (b) which is most important, given that her expected week of confinement could be medically certified as commencing on 6 April 1981. She would comply with section 9 (1) (a) by ensuring that the written notification was sent, not necessarily by herself, to the employer on 6 April 1981. Her maternity leave in accordance with the Act would commence four weeks after receipt of the written notification by the employer, that is on 4 May 1981. This would also be the commencement date for her in so far as the new maternity allowance is concerned.
During the four weeks prior to 4 May 1981, the employee could take sick leave or annual leave to which she was entitled, since the birth of her baby on 6 April would obviously preclude her from coming into work before then. Since her baby was born on 6 April, she would not be able to take four weeks leave before the birth as provided for under section 10, and so she would lose that period of her maternity leave. She would then be left with the maximum possible period of post-birth leave which is ten weeks. However, she would have taken four weeks annual or sick leave after the birth and these would have been subtracted from the ten weeks. This would mean that the employee would be entitled to take six weeks maternity leave under the Act during which she would also qualify for a new maternity allowance.
I thank the Minister for that explanation. I gather, therefore, that it is just hard luck if the baby comes at the wrong time. With this Act coming into operation some are going to be less well off than people who have the good fortune to have their babies more than four weeks after it comes into operation.
No matter which date you fix, the same thing would happen to different employees.
If Senator Hussey would allow this Bill to go through and not delay it another week, maybe some of the mothers about whom she is concerned will come in under this Bill, if we get through more quickly here this afternoon. We have had a week's delay already.
Question put and agreed to.
Question proposed: "That section 10 stand part of the Bill".
The section states that the minimum period of maternity leave shall commence not later than four weeks before the end of the second week of confinement, and that there is no choice. That seems to be very arbitrary. I know numerous people, indeed myself included, who were perfectly fit and able and wished to work up to the day of confinement. There are many occupations where women who are doing valuable jobs, who enjoy their work and are well able to do it, would want to work for longer than up to four weeks before the date of confinement. Is there any way, for example, that a doctor could certify that this woman was perfectly well able to do the kind of work she was doing if she wished to do it for longer than that? It is very arbitrary to have a cut-off point of that kind. There are many jobs where perhaps there might be an important project to finish, where the woman might want to train in the person who would replace her while she was out and where she was particularly fit and able to work, and where in fact it would not do her a bit of good to be sitting at home worrying about the confinement. Many women would prefer to be active. Can any way be found around that very arbitrary arrangement?
Though there probably are exceptions, as the Senator has said it is generally accepted — and I emphasise "generally accepted"— that in the interests of protecting the health of the unborn baby and of the mother at least four weeks of maternity leave should be taken both before and after the birth. The other six weeks of the leave can be apportioned before or after, as the employee wishes. There are, however, certain exceptions. It is recognised that circumstances may prevent an employee from complying with the normal apportionment of maternity leave. The provision in the section need not apply to a situation where for medical reasons it is certified that an employee's maternity leave should begin on a specific date. That is covered by section 11. Late births are covered by section 12 and premature births are covered by section 13. Generally speaking it is a fair assessment. As Senator Hussey said, there will be people who could go right up to the date of confinement, but a Bill has to take account of the normal position and generally speaking it is accepted that at least four weeks are needed before the birth and four weeks after the birth. That is how the four weeks period was set and arrived at.
It has not got anything to do with bureaucracy, it is medical.
Question put and agreed to.
Question proposed: "That section 11 stand part of the Bill."
If a woman who wanted to go on with her work later than four weeks before the expected birth went to her doctor and got a letter from him saying, "It would be bad for you to stop working, it would upset you; you are doing a good job and you should stay at work," would she be able to go on working up to, say, one week before confinement? I feel strongly about this. The Minister has said that generally speaking we are protecting the health of babies and the health of women. Of course that is what we are doing. That is what this Bill is about and that is why we are all so glad that this Bill has been introduced, late and all as it is, and why we are giving it the care it is being given here. That is also the reason why it is absolutely essential to go through this Bill little by little and not rush it through so that there will not be any misunderstanding about what people's rights are.
I accept what the Minister said, that generally speaking women will be feeling tired and for their sake and the sake of the babies they will need more rest. For some women in some employment, and poorer women in the kind of employment that many women do in this country, it would be more restful for them to be out at work than to be at home with a lot of other children where they would not get any rest. I should like to repeat the point I made on section 10, which is that I see a situation where people doing sedentary work, people working in various professions, people working in offices and so on, where they are quite well and fit and able to go on working and where the view of their doctors would be that they should go on working until they themselves feel they should take a few days off before the birth. Does section 11 mean, therefore, that a doctor can sign a certificate saying she can work much longer than the four weeks before the confinement?
This section introduces an element of flexibility into the stipulation by recognising that medical reasons, that is the state of her health, could prevent an employee from complying with the terms of the section. The flexibility should enable the employee to be guided by the advice of the medical staff caring for her during pregnancy as to when it would be advisable for her on medical grounds to stop work. Subsection (1) permits an employee to begin her maternity leave on whatever date is specified in a certificate issued by a registered medical practitioner or other appropriate source. The certificate must indicate to the satisfaction of the Ministers for Labour and Social Welfare that on account of the medical reasons mentioned in that certificate the employee concerned should go on maternity leave on a specific date. The Minister for Labour is empowered to make regulations concerning the period within which a certificate is to be produced for the employer's inspection.
The more I look into this the more I am convinced that this statutory provision about four weeks notice before the period of confinement is wrong. The period of maternity leave should have been given and should have been allowed to be taken at the discretion of the person, even one continuous period if necessary. The period of four weeks prior notice is purely a bureaucratic measure, perhaps complying with other regulations in the social welfare code. Section 11 is the first breach of this bureaucratic thing as far as I can see. It provides for what I think will happen in very many instances where women will work up to as late a date as possible on the submission of a medical certificate and then continue by perhaps taking extra weeks additional maternity leave subsequent to the confinement.
As the Senator has said, this section provides for the presentation by the employee of a certificate. If a woman worked up to the date of birth she would have ten weeks afterwards; if a woman worked up to a week before the birth she could have 11 weeks. While the Bill takes into account everything Senator Hussey has said, particularly in relation to her own experience and the experience of many of her friends, the situation is that this Bill has to cope with various situations. I honestly feel that the four weeks is a reasonable time before a birth and afterwards. At least she should have that period before and afterwards, and the rest would be at the discretion of the employee.
Have we seen a chink of light? I understand that a doctor may decide that the woman can work up to near the birth of her child, but that she will not then get the full 14 weeks. If my understanding on that is at fault I would be happy to have it clarified. If a doctor decides that a woman would be better off working nearer the birth of her child for a variety of reasons which we have gone into, then she starts her maternity leave two weeks before the birth of the child and she is entitled to 14 weeks maternity leave. Therefore she can have 12 weeks after the birth of the child, I presume.
I would also like to know if a doctor's certificate must be accepted by the Ministers or will the Ministers sit down and look at a doctor's certificate and decide whether the doctor is right or wrong in saying, for example, that this woman's psychological welfare would be much better served by working nearer to the time of her confinement and that if she had to leave, for example, some special project she was doing it would upset her greatly and might upset her coming up to the birth? There are two questions there: one, I want to know if she works nearer to the date of birth does she have the full 14 weeks if the doctor signs a certificate saying that she should take leave nearer to the birth and, two, do the Ministers have to accept that certificate or can they decide they do not want to accept it?
The Minister said that if the woman works right up to the date of confinement she would have ten weeks afterwards. Is that correct?
Without the medical certificate. With a certificate setting out the medical reasons for her stopping work on a certain date she would have 14 weeks from that date.
Ten weeks if she had worked right up to the birth without the medical certificate?
Are we correct in that interpretation? Section 10 sets out that there have to be four weeks before and four weeks after. The Minister is saying that if she submits a medical certificate she is still entitled to 14 weeks no matter when it begins, if it only begins one week before confinement.
I am saying section 11 entitles her to do that if a medical practitioner issues a certificate stating on medical grounds that she should stop work on a specific date, for some of the reasons that Senator Hussey mentioned. The Minister can accept that certificate and the Minister for Labour is empowered to make regulations concerning the period within which a certificate is to be produced for the employer's inspection. If a doctor issues a certificate that on medical grounds he recommends that the employee should stop work on a certain date then the employee is entitled to 14 weeks from that date.
On reading the Bill I saw section 11 as allowing a sort of discretion about this four weeks before and after. It read to me as though it was generally meant to apply to somebody who perhaps wanted to take more leave before the birth rather than less leave before the birth. My personal experience is the same as Senator Hussey's, and I would have thought that in a relatively healthy pregnancy it is quite easy to work up to near the birth. The time you really need the holiday is when the baby is very small, after the birth, and the longer holiday you can get, particularly if you have other children, the more desirable it is. I was very glad to hear the Minister say that a doctor could give a certificate to this effect and perhaps the Minister's regulation can make it clear that as well as allowing more before the birth it can allow less before the birth as well.
Question put and agreed to.
Sections 12 and 13 agreed to.
Question proposed: "That section 14 stand part of the Bill."
This is the section which deals with the additional maternity leave for a maximum period of four consecutive weeks commencing immediately after the end of the maternity leave. Given the fact that in this country we have no crêche facilities to speak of, four additional weeks is too short a time, and also considering that in this Bill there is no reference at all to parental leave in the wider sense, including fathers, and that there is no reference either to the provision of crêches in the work place.
One reason alone would make it far too short, that is, that the medical opinion is that the best way to look after a baby is, if possible, that a mother should breast feed her own child and should do so for as long as is comfortable and going well and no problems. That can be for quite a long period. If we are to talk about cutting off additional maternity leave we may be talking about forcing mothers to change the system of feeding the child because they have to go back to work and because, you can be quite sure, as we heard in regard to RTE recently, there are no facilities for breast feeding unless you go to the ladies' loo, which very often may not be at all a suitable place for looking after a child.
I feel that it was a pity that the four weeks' period was agreed to in order to have this Bill in operation by 6 April. It is far too short. I would like to see it extended to a period of at least two months and, of course, it goes without saying that I would hope very much that we will have additional legislation bringing fathers into this whole question of parental involvement with small children. I do not mind whether we are on a par with, behind or in front of Europe, but if we are talking about Irish solutions for Irish problems, and we seem to be very keen on that, for Irish mothers who have decided to take the benefit of maternity leave, to give them only four weeks is very ungenerous and mean. I particularly think that in the whole area of breast feeding their children it puts a lot of pressure on the mothers.
I agree that family responsibilities are onerous and perhaps the most onerous thing of the lot is child care. Some other day we might be talking about proper child care facilities to supplement the Bill, but at this time what concerns me most of all is that the extra four weeks is unpaid leave. That is the real problem. I will admit the period is short if something goes wrong. The very onerous responsibility of the woman in regard to child care cannot be eased in this short period. I would like to see the Bill go through as quickly as possible, but I hope we can do something in the future to have an extended period of maternity leave that would be paid for.
Senator Hussey said that she does not mind where we are in relation to the other EEC countries, but it is no harm to say where we are. There is no extra leave in Denmark or Belgium and there is none in Greece as far as we can ascertain. In the United Kingdom four weeks leave is given on medical grounds or at the employer's request. In Luxembourg, four weeks is granted in the case of multiple or premature births.
It is not a bad start to the Bill. The Minister has the power under subsection (6) to amend subsection (1) to extend the period of the four consecutive weeks referred to. That can be done by an affirmative order which can be laid before both Houses of the Oireachtas and be discussed. Of course, we can all argue for a lot of extra facilities, conditions and payments but, as the Senator has said, the important thing is that the Bill will at least become law and a start will be made. Many of the Bill's provisions can be extended by affirmative orders.
I want to clarify one or two points. As far as I can see there is nothing in the Bill that will prevent employees negotiating that extra leave directly with the employer.
As long as it is an improvement rather than a retrograde step.
Question put and agreed to.
Question proposed: "That section 15 stand part of the Bill."
This section provides for the suspension of employment rights. Employment rights can take many forms. It can mean tenure of employment, a guaranteed term of employment or a five year contract of employment and so on. If a woman seeks the traditional maternity leave period would she forfeit all rights to, for example, a five year contract term of employment which she had held up to the period of taking maternity leave?
What does she forfeit in regard to suspension of employment rights?
There is no change at all. She forfeits nothing. Everything is just frozen until she goes back to work.
I am not sure of that situation. The explanatory memorandum states that:
In this connection, a distinction is drawn, in certain respects, between an absence on maternity leave and an absence on additional maternity leave. While she is on maternity leave, the employee's existing employment rights will be preserved. Where she opts to take additional maternity leave, the employee's existing employment rights — whether arising under statute, contract or otherwise — will be frozen until she returns to work.
It will not have any effect in regard to her future employment. The contract terms state that.
It will not have any detrimental effect on her at all. The position is actually frozen.
I want to raise the question of annual leave or sick leave. The employee will not be insurable for the purpose of the social welfare code during maternity leave unless she receives payment from her employer. Does that imply if she takes any leave beyond 18 weeks that she would not be insurable under the social welfare code?
That is correct. She will not be insurable for four of the 18 weeks.
Question put and agreed to.
Question proposed: "That section 16 stand part of the Bill."
I asked the Minister of State, Deputy Daly, to clarify this section for me the last day. I was not too sure whether one could get someone to come in and work for one or two hours to suit the mother before or after the birth.
The section says:
For the purpose of receiving antenatal or post-natal care... an employee to whom this Part applies shall be entitled to time off from her work in accordance with regulations made under this section by the Minister.
I am sorry to bring up the question of breast feeding. Does the Bill allow any time off for an employee who is breast feeding her child? If she is going to get time off for post-natal care a very important part of post-natal activity for any mother is breast feeding the child. What happens if she cannot do it at the factory bench, sitting at a typewriter, running a company, or sitting in the boardroom with her fellow directors, or whatever she happens to be doing? I would like to bring that question up again. Does antenatal or post-natal care of the baby come into this Bill at all?
Who is to feed the child if the mother is not getting any time off to breast feed the child? It is an interesting thing when one thinks of the kind of occupations in which women are in large numbers, such as in primary teaching, where they do such a marvellous job, and where it is child-centred and where the hours fit in extremely well with family responsibilities. I am sure a lot of sympathy will be given to the question of breast feeding. Am I right in assuming that this Bill does not care about the post-natal care of a child who is being breast fed?
The position is that this section deals solely with the post and ante-natal care of the mothers. In relation to the regulations, discussions will take place with the FUE and the trade unions on the amount of time off that should be given and the number of visits before and after the birth. Senator Hussey is coming up again, as Senator Harte said earlier, with the whole question of child care which will have to be considered at another time and in another Bill. This Bill deals with maternity and maternity leave. All this section does is allow the mother to have time off for post and ante-natal care.
I appreciate that, but it seems to me that in a Bill which has to do with making it possible for women to have babies and to continue working that we simply cannot escape the bond between mother and child, the bond of breast feeding, which is now the more common way of feeding a child. I do not see what sense it makes to bring in a Bill which completely ignores that matter. I do not think the FUE are the best people to answer that either. It is the responsibility of legislators to answer that question.
Question put and agreed to.
Sections 17 to 19, inclusive, agreed to.
Question proposed: "That section 20 stand part of the Bill."
In subsection (2) we talk about coming back to work and where the mother may have to come back to something which was not her normal or usual job. She shall be entitled to return to work either in her normal or usual job or in that job as soon as it is practicable. Does that mean if she has taken additional maternity leave and has given due notice in writing of the additional maternity leave without pay which she is taking, that she may be left hanging on without pay while people figure out how soon is "practicable" for her to come back? I am a little worried about that phrase "as soon as is practicable" because she may be without pay. Who is going to decide what is practicable? It is very important that we are quite clear about who is the decision-making body in this area and also that we remind ourselves that because we are giving that little bit of extra leave without pay she may be hanging on without pay until an opening is found for her.
I would like explained more clearly the meaning behind the words "nature of the work" as it refers to the job and "the capacity and place" as they also refer to the job. Subsection (3) says:
In this section "job", in relation to an employee, means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed.
There are quite a number of positions in this country, for example, the position in banking, where a girl is employed under a contract and the nature of her work is clerical work but the contract can cover a multitude of places in this country. It can also cover, perhaps, a number of different capacities within the banking world. I would like to think that she is entitled to return to the place in which she left off doing the work, for that is adequately covered in this because subsection (3) means the nature of the work which she is empowered to do in accordance with her contract of employment. A girl working in the banking world could be doing the same kind of work in a bank in Cahirciveen as she had been doing in Dublin prior to her confinement. I would like the Minister to clarify that what is intended in this Bill is that she will return to the same place, to the same job and in the same capacity as when she left.
There could be some problems in relation to the same job. Could I first of all put the Senator's mind at rest? There is no way, to take his own example, that a lady bank clerk can find herself going from Dublin to Cahirciveen. That is not the same situation, that is not the same place unless she had been transferred to a different area before she took her maternity leave. This Bill protects her from being deliberately transferred afterwards.
Perhaps the example of Dublin and Cahirciveen was a bit extreme. If her employment was in the bank on the north side of Dublin could she be offered an alternative post in a bank on the south side of Dublin?
Again if it arose out of her taking maternity leave, the bank or any other organisation cannot do that. However, there might be other circumstances. If she was on notice to go before she took the leave well then that would be all right.
The term reinstatement as against re-engagement has a different connotation. The fact is that if you are reinstated it is implied that all your rights are there, you are reinstated from day one, as it were, and it seems to me that there could be a problem in regard to being re-engaged in the sense that it is hinging on a new contract of employment. Could the Minister give me some indication of whether in fact there is any dilution in this particular area?
I hope the Minister has not forgotten my question.
I have not. The only thing that is introduced here is a small element of flexibility. That is introduced into the interpretation of the word "job". By referring to the nature of the work which the employee was employed to do in accordance with the contract of employment and the capacity and place in which she was so employed, the reference means that the employer is not obliged to give the employee precisely the same job on her return to work. To provide otherwise, that is if the job was to be rigidly defined, could cause practical difficulties for the employer and could moreover, adversely affect the employees' chances of reinstatement under the section. While the definition of "job" is a flexible one, it is considered sufficient to protect the employee's interests. For example, she cannot be given work of a different nature from that which she did before she went on leave. She cannot be employed, for instance, as a junior typist if before her absence on leave she was a personal assistant to a managing director. In regard to the case that Senator Markey gave, she cannot be employed in a Cork branch or in a country branch of a firm if before her absence she was employed in Dublin.
Senator Hussey was talking specifically about subsection (2). The aim of this subsection is to ensure that it is to her normal work that the employee returns. If she was doing work different from it before she went on maternity leave and, where appropriate, on additional maternity leave as well, in cases where return to her normal work would be precluded by existing protective legislation the employee must be allowed to resume that work as soon as the legislation in question permits.
My problem was the phrase "as soon as practicable". I was worrying about those women who would have taken additional maternity leave and would therefore be on additional maternity leave without pay and would be very anxious to get back to work and might be told that it was not practicable just then and they would have to go on without pay. Who is the arbiter of "practicable"?
When the employee reports for work she has to be paid. If the employer has not the particular job he just has to fit her in somewhere. However, there are some examples. For instance, the Factories Act prohibits a female employee who is employed in any process which is wholly or principally comprised in the manual transport, including the lifting and putting down of loads, from being employed at that work during pregnancy and during ten weeks following confinement where in the opinion of a registered medical practitioner such employment would be likely to impair the employee's health. There are certain exemptions when the employee would now be precluded by law. Until such time as the time spans under the various Acts have passed the employer could not put the employee back into the same job. It is only in that case that the Senator's question may arise. However, once the employee reports back for work she has to be paid.
I am happy about the reality of this. It is quite possible that it could happen that the same job would not be available for the person. I am not absolutely clear — I think I have it right but I want to be clear in my own mind — that the ultimate re-engagement does not in fact mean any dilution of the terms of employment or the conditions of employment.
The Senator is right. She cannot have any conditions that are less favourable than what she had before she went on leave.
Question put and agreed to.
Question proposed: "That section 21 stand part of the Bill."
I want to refer to paragraph (b) of subsection (2). I am very glad to hear that we are ensuring that the person can return to work and she will be able to take up her employment and will not be disadvantaged or treated badly because of maternity leave. There is an ominous phrase, it seems to me, in subsection (2) (b). It is "the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not substantially less favourable to her than those of her contract of employment immediately before the start of her period of absence ...". "Substantially", in that context, is rather an ominous word I feel. That would convey that they can be quite considerably worse before they can get substantially worse. It is a word that could be interpreted to the grave disadvantage of workers. In my interpretation "substantially" means considerably, importantly or something of great moment. I wonder why that slightly ominous phrase is used there.
This thing about "substantially less favourable" ties in with subsection (1) where the phrase "suitable alternative employment" is used. I assume that "suitable" is meant to be suitable to the employee as well as suitable to the employer. I would like to know from the Minister how this will be monitored. When a woman is offered what is supposed to be suitable alternative employment, if she does not think it suitable, is it the Rights Commissioner to whom she will go? This is one of the areas where I would like to see the Employment Equality Agency involved. I am sorry that the Minister says that the Employment Equality Agency did not want to act in it. Phrases like "suitable alternative employment", "not substantially less favourable" and so on allow for a good deal of laxity of interpretation. One certainly does not want to have to go to the courts to get them interpreted on behalf of an employee. I would like to know just who decides that the employment is suitable or not suitable.
I would like to go back to the point I made about a different location that the woman returns to. Can I again put it to the Minister that if she returns to her banking place in Finglas and is told there is no longer a position there for her for a number of reasons — there could have been redundancies in the meantime — but is offered a place in a bank in Tallaght. would that be grounds for her to plead that she is being given terms and conditions substantially less favourable than she had hitherto? Take the case of a girl who returns to her place of employment in which she had an office on the first floor. a nice comfortable office, in which she did her work and she is told the office is no longer available. Somebody else who had been recruited in the meantime has been installed in that office and she has instead been given a top floor or a basement office which she finds is not suitable perhaps for her own psychological reasons. atmosphere or whatever it might be, would that be grounds for her to put the case to the commissioner that she was being treated in a manner that was substantially less favourable to her?
Section 20 generally deals with an employee's return to work. It is only where the employer decides that he cannot reinstate the employee that section 21 comes in. Senator McGuinness mentioned the Employment Appeals Tribunal and the Rights Commissioner. Certainly the employee has the right to go to the Employment Appeals Tribunal or a Rights Commissioner if she feels that her employer is being unreasonable. The same thing would apply to Senator Markey's question. I could not honestly say at this stage — these will all be matters for the employee as to whether she felt that she was being treated unjustly in the context of where she was being asked to go to, what she was being asked to do. She certainly has the right to go to the Rights Commissioner or to the Employment Appeals Tribunal.
Question put and agreed to.
Question proposed: "That section 22 stand part of the Bill."
This section continues the trend I mentioned earlier. A mother at this stage has far more important things to worry about than being very precise about submitting notification of her return to work no later than four weeks before. That notification has to be subsequently confirmed in writing under subsection (2). This is being a bit too niggardly and detailed in the circumstances and I believe that there is not a great need for such strict provisions. Any woman who is going to return to work will naturally give notice as soon as possible. She should be given that discretion rather than given a specific period within which she must give notice.
A little too much is being made out of this. The employer also has rights and has to have these rights safeguarded: this is one of the things that the FUE were very firm about in the negotiations. An employer must get reasonable notice of absence so that he can make alternative provision. He must know when the employee is returning to work. There is somebody else there for the time and that person will have to be let go and it is only fair that that person also should get reasonable notice.
If a mother fails to comply with this provision, does that prejudice her eventual return to the position, capacity and place that she held previous to her confinement?
Question put and agreed to.
Sections 23 to 28, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.
Agreed to take remaining Stages today.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."
I am very glad that we had this clarification discussion this afternoon, which was extremely important. When it was suggested to the Minister last week that we should not pass all Stages it caused a great deal of upset, apparently. The discussion has been very valuable and has clarified many questions, perhaps not all in a most favourable manner. At least we know where we stand on some issues where perhaps we did not know before.
I hope this legislation, which is a fundamental, significant part of any country's modern legislation concerning equality between the sexes, will be kept under constant review as to how it is working, whether it is doing the best job possible for mothers for babies and for families. If a country is about anything it is about its families. This Bill is not a women's rights Bill, as it has been described on other occasions. This Bill is a human rights Bill and a family rights Bill. It is in that spirit that I have approached this. Bill from the beginning in the context of making it possible for families to be protected in this age when there is so much emphasis on materialism.
I hope that the constant review of the legislation will concentrate on lengthening the period of paid maternity leave and lengthening considerably the period of additional leave. I am too much of an economic realist to believe that this country will be able to afford long periods of paid parental leave. Certainly, mothers should have the option of a much longer period of unpaid leave very soon.
On Committee Stage I discussed a problem which the Bill has totally ignored, that is, the problem where a mother, who is successfully and happily breast feeding her child who is thriving, is forced to attend at work because of the limited additional maternity leave allowed to her. That is a question which must be examined quickly and people should be discussing that whole problem with doctors. I should like to see also the involvement of fathers in leave from employment concerning their children.
I am sure the Senator realises that at this stage she can speak only on what is in the Bill.
For what is in the Bill I am very grateful. It is a start on a long road. There are many problems and omissions on which I could speak at length. I will end by saying I hope the legislation will be constantly reviewed and that we will iron out some of the serious omissions and problems.
Question put and agreed to.