I move amendment No. 1:
In page 17, subsection 2 (b), line 29, to delete "substantially".
Is it essential to include the word "substantially" in this section? Would it make any great difference if it was deleted?
Maternity Protection Bill, 1994: Committee and Remaining Stages.
Sections 1 to 26, inclusive, agreed to.
SECTION 27.
Having carefully examined the matter, the word "substantially" is necessary. The word "substantially" has already been in use in the Maternity Protection of Employees Act, 1981. It has not given rise to any problems to date and neither of the social partners identified it as a difficulty during the consultations which took place on the preparation of the Bill. The same text has already been accepted by this House in its recent consideration of the Adoptive Leave Bill. The text as set out in the Bill achieves a useful balance in protecting the interests of the pregnant worker and in accommodating the exceptional circumstances in which the employer may find herself or himself.
Under section 27 (1) before an employer may consider providing suitable alternative work it must not be reasonably practicable to permit the employee to return to work on the basis of reinstatement. If this issue is disputed the employer would have to satisfy a rights commissioner or the Employment Appeals Tribunal that it was not reasonably practicable to do so. Reinstatement is the first option.
The purpose of section 27 (2) is to preclude the employer from making an unacceptable dilution of an employee's right to return to work should the employer attempt to use the alternative given to him or her by the provision for re-engagement. Towards that end section 27 (2) lays down certain conditions as regards the suitable alternative employment to be offered to the employee by her employer, the successor where there has been a change in ownership during her absence or an associated employer under her new contract of employment. It stipulates that the work to be done must be of a kind which is both suitable for the employee concerned and appropriate for her to do in the circumstances.
Furthermore, the terms and conditions concerning the place where the work is to be done and the capacity in which the employee is to be employed must not be substantially less favourable to her than those in the contract of employment she held before taking the leave concerned. The retention of the word "substantially" allows existing practice to continue, allows some flexibility for the employer in accommodating the return to work of the employee and enables the employee to dispute the terms of the new contract where she considers that they are substantially less favourable to her.
Acceptance of the Senator's proposed amendment would not only delay passage of the Bill, it would cause problems for small employers in particular. If there are difficulties for such an employer in reinstating an employee after leave under this Bill, there may also be difficulties for the employer in not bringing in a new contract for suitable alternative work which is precisely the same or as favourable to her as the previous one. It would be unfair and unreasonable to expect it to be precisely the same. Protection against substantially less favourable terms is, on balance, a reasonable provision and one with which employers and workers have been able to live comfortably since 1981.
I can see the problem the Minister has. The word "substantially" appears in other legislation. What is intended here is not markedly different. As the Minister pointed out a review process is inherent in all of this. I accept there is anecdotal evidence of occasional abuse. The use of the word "substantially" means the burden of proof lies with the aggrieved woman returning to the workplace. Clearly that is not something the Minister or the House would intend. This could be examined if we had a monitoring process. I am sure women in the trade union movement are conscious of this issue.
The case to which Senator Henry referred triggered a memory of a woman who was given a parallel position but it was one which was going nowhere. She was moved from a position where she had career prospects to one where she had none; in fact, her only option was to seek alternative employment, and that posed other problems for her.
The Minister's intention here is not to create a loophole and certainly not to assist the unscrupulous employer but there is the opportunity to abuse the word. Perhaps before the review we could look at it and take everybody's concerns on board.
We will certainly do that.
I thank the Minister for his explanation. As Senator Roche said people may be in a position where they cannot complain because the word "substantially" is already in the legislation. My constituent — and probably Senator Roche's constituent — tried to make her complaint through the various employment agencies but because there is no substantial difference in the position offered — she is in a totally different position but her prospects are nil — she got no satisfaction.
When monitoring the legislation I ask the Minister to find out if this word is causing trouble for some people because they do not have grounds to complain as the word "substantially" is in the legislation.
I will be happy to keep it under review. To date the unions have not raised that point. It is a question of balance. It is a little unreasonable to expect a small employer to provide the precise employment the employee had before she left. I will keep the matter under review.
Amendment, by leave, withdrawn.
Section 27 agreed to.
Sections 28 to 37, inclusive, agreed.
SECTION 38.
I move amendment No. 2:
In page 23, lines 43 to 47, to delete subsection (1) and substitute the following:
"(1) Where a pregnant woman within the meaning of section 1 of the Act of 1977 (as amended by section 22), is dismissed from her employment, and such dismissal results wholly or mainly from the exercise or contemplated exercise by her of any of her rights under this Act, she shall, notwithstanding section 2 (1) (a) of the Act of 1977, be deemed to have been unfairly dismissed unless there are substantial grounds justifying the dismissal within the meaning of the Act of 1977 and shall be entitled to claim redress under that Act, notwithstanding the fact that she may have less than one year's continuous service with the employer who dismissed her".
Not being a lawyer I have examined the two parts of this section together and wonder whether section 38 (1), which removes the words "and whose" from section 2 (1) (a) of the 1977 Act, means that the woman has to be in employment for one year. I will be guided by the Minister who is a lawyer.
I can understand Senator Henry's comment about the complexity of this section. I have a detailed legalistic complex reply which I will be happy to read into the record if required. However, I doubt if, without a concentrated study, it would add much to the debate. Suffice it to say that I am satisfied that the intent of Senator Henry's amendment is well stitched into section 38. Ironically, the effect of taking her amendment on board would make the position worse in some circumstances. The 12 month period does not apply and the position is covered in section 38 (5) where the appropriate sections of the Unfair Dismissals Act, 1977, are dealt with. The matter is in order and taken care of; what the Senator wants to achieve is provided for. If she wants the full legalistic basis of it I will be happy to give it but I think it is not necessary.
The subsection reminded me a little of Sir Humphry in "Yes Minister" when I was going from paragraph (f) to (g) and so on. I will be guided by the Minister and do not need the long legalistic reply which would detain us even longer this evening.
I will be happy to give the Senator a copy of the reply which she can study at her leisure.
Amendment, by leave, withdrawn.
Section 38 agreed.
Sections 39 to 41, inclusive, agreed.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Senators who made such valuable contributions to this important Bill. It will be monitored in accordance with the directive within the appropriate period. I assure Senators that whatever amendment may be necessary following on that review, will be undertaken at the appropriate time.
I thank you, Sir, and the staff of the Department who worked so diligently in the preparation of the detail of this Bill. They still have some work to do in regard to the finalisation of the regulations in connection with the social welfare and the health and safety aspects. It is my intention to have those completed so that the Bill can be brought into operation as quickly as possible.
An Leas-Chathaoirleach
I join with other speakers in congratulating the Minister on his re-appointment.
Question put and agreed to.
An Leas-Chathaoirleach
When is it proposed to sit again?
I propose that we adjourn sine die.