This Bill amends the Maternity Protection Act 1994 by making a number of improvements to its provisions which protect employees who are pregnant, or who have recently given birth. The Bill implements the recommendations made by the working group on the review and improvement of the maternity protection legislation. The working group, which reported in January 2001, was set up in accordance with commitments in the Government action programme for the millennium and the Programme for Prosperity and Fairness. It was chaired by my Department and included representatives from all pillars of social partnership, relevant Departments and the Equality Authority, etc.
The previous Government had no hesitation in accepting the recommendations of the working group in full and the principal recommendations to extend the duration of maternity and additional maternity leave were immediately implemented in 2001. The remaining recommendations which require primary legislation to amend the Maternity Protection Act 1994 will be implemented by the enactment of this Bill.
The latest social partnership agreement contains a package of legislation, codes and programmes in relation to workplace relations and environment. This package of measures aims to protect employee rights, ensure greater equality, promote health and safety and bring about a better work-life balance. The improvements to the maternity protection legislation now proposed are clearly consistent with each of these aims and provide clear evidence of the Government's commitment to fully implement the new partnership agreement.
Work-life balance initiatives are important, not only in the context of assisting employees in combining employment and personal responsibilities, but also in underpinning social and equality objectives. It is imperative, therefore, that we meet the challenge of developing innovative measures which reflect the reality of today's workplace and the personal and social responsibilities which employees encounter.
The increased number of women in the labour force has been one of the main contributory factors in our economic growth which allowed the economy to expand without being stifled by major skill shortages. In 1994, the female labour force participation rate was 39%. According to the latest CSO figures, it is now almost 49%. Furthermore, the EU Presidency conclusions on equal opportunities and social inclusion in Lisbon and Nice in 2000 set a target of 60% employment for women by 2010, and an interim target of 57% by 2005. Complying with these targets will mean a further increase in the number of women of childbearing years in the labour force.
Our economic climate is, in itself, a driving force in addressing obstacles to women's participation in the labour force, particularly in skilled employment. Employers do not want to lose trained and skilled women and are looking at ways of retaining them in employment. The need to ensure continued economic growth is putting the employment and the retention of women in the workforce at centre stage. This is not only an equality issue but also an economic one.
Recent statistics show that of the number of women currently in Irish employment, over 62% are aged between 15 and 45 – the ages roughly corresponding to childbearing age. There were 29,042 maternity benefit payments awarded to employed or self-employed women in 2002. In all, 60,521 children were born in 2002. It is imperative that our legislation recognises the valuable contribution made by working mothers and provides support for them in the workplace.
Maternity protection is a fundamental right of any pregnant employee and one which has been enshrined in our legislation since 1981. It is somewhat disappointing therefore that over 20 years later, pregnancy discrimination, and in particular pregnancy related dismissals, remain a significant issue in the workplace. In the Labour Court last year, there were five determinations issued in 2002 where pregnancy was cited and the court found that discrimination had occurred in all five cases. Employers were ordered to pay substantial financial compensation and this should act as a deterrent to pregnancy related discrimination, particularly in its more subtle forms. This sends an unequivocal message to employers that such discrimination will not be tolerated.
This Bill provides that an employee who is absent from work on additional maternity leave shall benefit from all employment rights associated with the employment – except remuneration and superannuation benefits – such as seniority and annual leave entitlements. In addition, all employment rights shall be unaffected during an employee's paid absence from work to avail of new entitlements under this Bill to paid time off from work to attend ante-natal classes and to breastfeed. I shall detail these new entitlements later, which incidentally will require regulations to be put in place after the enactment of the Bill.
The Bill contains new entitlements for breastfeeding mothers, who often experience particular difficulty in returning to work after the birth of a child. It is internationally recognised that breastfeeding is the most beneficial method of infant feeding. In their global strategy on infant and young child feeding, the World Health Organisation states, "Breastfeeding is an unequalled way of providing ideal food for the healthy growth and development of infants." The strategy cites paid maternity leave, part-time work arrangements, on-site crèches, facilities for expressing and storing breast milk, and breastfeeding breaks as enabling conditions for women in paid employment to continue breastfeeding.
The Bill brings Ireland closer to international provisions for breastfeeding mothers. Section 8 provides that an employee who is breastfeeding, and who has informed her employer that she is doing so, shall be entitled until the child is four months old either to breastfeeding breaks, where facilities for breastfeeding are provided in the workplace, or a reduction of working hours, without loss of pay in either case. This important and new statutory entitlement will facilitate breastfeeding mothers on their return to employment.
The important health advantages of breastfeeding more than justify the introduction of these provisions. These advantages are maximised when breastfeeding is sustained for longer periods. Research commissioned by a number of health boards shows that returning to work can influence the decision of Irish women to cease breastfeeding. For example, in a study commissioned by the Midland Health Board in 2000, 30% of respondents gave "returning to work" as the reason for ceasing breastfeeding.
Although the research evidence on the value of breastfeeding, for both mothers and babies, is compelling, the incidence of breastfeeding in Ireland continues to be among the lowest in Europe. The Government recognises that breastfeeding of infants and young children provides one of the best opportunities to give children a good start in life. The national health strategy aims to strengthen measures to promote and support breastfeeding and identifies key areas for action in order to re-establish a breastfeeding culture in Ireland. One key action is to promote, support and protect breastfeeding in homes, schools, workplaces and in society generally.
Research from other EU countries which provide similar facilities is encouraging. In Sweden, rates of exclusive breastfeeding at four months have climbed from a low of less than 20% in the mid 1970s to almost 70% in 1997. An additional 15% are partially breastfed at this stage. These figures are high by international standards, despite significant female participation in the workforce. This has been attributed to, among other family friendly initiatives, the provision of paid breastfeeding breaks during a working day for all breastfeeding mothers.
During the course of the review, the working group examined work-related barriers to breastfeeding. It concluded that the length of leave available at that time to mothers who wished to breastfeed was restrictive and there was a very short time period in which to establish an effective breastfeeding pattern. Shortly after the conclusion of the working group's deliberations, the recommendation to increase both the period of maternity leave and additional maternity leave was implemented by means of secondary legislation. Both the entitlement to maternity leave attracting a payment, and the optional unpaid additional maternity leave, increased by four weeks, bringing the overall entitlement to 18 weeks maternity leave and eight weeks additional maternity leave. This Bill incorporates the increased leave entitlements which offer mothers the option of up to 22 weeks post-confinement maternity leave and the chance to establish an effective breastfeeding pattern.
Provision of paid time off for attendance at ante-natal classes was also considered by the working group. The Institute of Obstetrics, which was consulted on the matter, was of the opinion that a pregnant woman needs to attend one complete set of ante-natal classes in the interest of her health and safety during the course of pregnancy. Ante-natal classes form an intrinsic part of the ante-natal care package, particularly in a woman's first pregnancy. The 1994 Act provides, in accordance with regulations, for time off without loss of pay for ante-natal and post-natal care. The current definition of ante-natal care does not include ante-natal classes. In line with one of the recommendations of the working group, section 7 of this Bill provides accordingly.
During the pre-confinement stage, fathers can offer invaluable support to expectant mothers. Therefore, we are introducing a section which gives expectant fathers a once off entitlement to time off work, without loss of pay, to attend the last two ante-natal classes in a set of such classes.
While the overriding purpose of the review was to enhance the protections available to employees who are pregnant or who have recently given birth, the working group took account of the costs to employers of its recommendations. The recommendation to increase the maternity leave periods, which was implemented in March 2001, would have incurred the most cost for employers and the Exchequer. Some of the other provisions of the Bill will have minor cost implications for employers. Employer costs will be incurred in the provision of paid time off to attend ante-natal classes, the provision of either breastfeeding breaks where breastfeeding facilities are provided or a reduction of working hours and the preservation of certain employment rights while on additional maternity leave. The benefits of the recommendations, not only to employers but to the economy in general, were also considered. As I mentioned earlier, incentives which can assist in keeping women in the labour force are beneficial to employers and the economy generally.
The working group also considered the concerns, as expressed by female employees themselves, in relation to combining pregnancy and caring for new-born babies with work commitments. In particular, they consulted a report, New Mothers at Work, commissioned by the Employment Equality Agency and published in 1999, which documents the difficulties experienced by 30 women in combining motherhood and the demands of the workplace. A strong theme which emerged from this research was that women interviewed wanted to stay in the labour force, but felt inadequately supported by legislative and other measures in exercising their preferred choice. It is hoped that the provisions of this Bill can help alleviate this problem by providing the necessary support to mothers returning to work after childbirth.
I will now outline the main provisions of the Bill. Section 1 is a standard provision dealing with interpretation. Sections 2 and 4 incorporate Statutory Instrument No. 29 of 2001 which gave effect to the working group's recommendation to increase the periods of maternity leave and additional maternity leave. The implementation of the recommendation to increase both the period of maternity leave and additional maternity leave, as mentioned earlier, has been in effect since March 2001. The implementation of this recommendation was fast-tracked ahead of the implementation of the other recommendations to ensure that the benefits of the increased leave entitlement would be realised as soon as possible. It is a widely held view, supported by leave arrangements in several other countries, that the best interests of infants under 12 months old are served where they remain in the direct care of their parents. The provision of 18 weeks paid leave entitlement with the option of four weeks additional unpaid leave means that Ireland is now in a favourable position when compared with many other EU member states. Sections 2 and 4 of the Bill provide that the Minister may by order extend the periods of maternity and/or additional maternity leave.
Section 3 safeguards an employee's entitlement to the extended minimum period of 18 weeks maternity leave where premature births are concerned. Section 5 provides that in the event of the sickness of the employee, an employer may agree to the employee's request to terminate her period of additional maternity leave. Once terminated, the employee shall not be entitled to take the remainder of the additional maternity leave at a later date. Any absence from work due to sickness following the termination of the period of additional maternity leave shall be treated in the same manner as any absence from work of the employee due to sickness.
Section 6 provides that in the event of the hospitalisation of the child, an employer may agree to an employee's request to postpone her maternity leave and/or additional maternity leave and allow her to return to work on an agreed date. It will only be possible to postpone maternity leave where the employee has taken at least 14 weeks maternity leave, four of which are after the end of the week of the birth. This may appear to be overly restrictive, but we are constrained by the Pregnant Workers Directive which provides for a continuous period of 14 weeks maternity leave. Where the employer agrees to a postponement of maternity leave and/or additional maternity leave and where the employee has adhered to certain notification requirements, the employee shall be entitled to take her postponed leave in one continuous block, which will be known as resumed leave. The resumed leave must commence not later than seven days after the discharge of the child from hospital. In the case of the employee's absence from work due to sickness during the period of the postponement, the employee is deemed to have commenced their resumed leave unless they opt to forfeit the right to resumed leave. The absence from work due to sickness shall be treated in the same manner as any absence from work due to sickness.
Section 11 of the Bill applies similar provisions to fathers in certain circumstances. It should be noted that a father's right to leave under our maternity protection legislation is not constrained by the directive, which did not refer to fathers. Therefore, in the event of the hospitalisation of his child, a father may apply to his employer to postpone the commencement of his leave or where he has already commenced such leave, he may apply at any time to postpone such leave and temporarily return to work. Upon enactment of the Bill, regulations will be put in place to govern the detailed operation of the postponement provisions with respect to the maximum period of postponement of leave and the evidence to be furnished to the employer of the hospitalisation and the discharge from hospital of the child.
I have already given a broad outline of the provisions included in section 7, which deals with the issue of attendance at ante-natal classes, and section 8, which provides for entitlements for breastfeeding mothers. Entitlement to paid time off from work to attend one complete set of ante-natal classes does not include the last three classes in such a set as ordinarily these are attended during the employee's pre-confinement maternity leave.
It can sometimes be the case that a pregnancy does not go to full term because of premature birth. In such cases, the mother may not have availed of her entitlement to attend a complete set of classes and hence section 7 provides that the set of classes may be attended during one or more pregnancies. In other words, she can carry them forward to future pregnancies.
The entitlement provided in section 8 of the Bill to facilitate breastfeeding mothers in the workplace is in line with the recommendation of the working group. The Bill provides that employees are entitled until the child is four months old either to breastfeeding breaks in the workplace or a reduction of working hours, without loss of pay. Employers shall not be required to provide facilities for breastfeeding breaks in the workplace where the provision of such facilities would give rise to more than a nominal cost. Where breastfeeding breaks are not provided, the employer shall be required to agree a reduction of working hours with the employee without reducing pay. As with the entitlement to attend ante-natal classes, it is necessary to balance the rights and obligations of both employees and employers. In this case, a workable statutory entitlement for breastfeeding mothers in employment has been framed. The detailed arrangements will be introduced shortly by way of regulation.
Section 9 incorporates the father's existing statutory entitlement to leave where the mother dies during the period of her maternity leave. Consequential amendments are provided to deal with a situation where the father's leave under section 16 of the 1994 Act is postponed or terminated or where the mother's leave was postponed or terminated prior to her death.
I have already referred to sections 10 and 11 which apply corresponding provisions to fathers as provided to mothers under sections 5 and 6, which deal with the termination and postponement provisions, respectively. Section 12 amends the definition of protective leave in the 1994 Act and provides that the period of leave taken prior to postponement and the period of resumed leave after postponement shall be treated as separate periods of protective leave. Protective leave encompasses maternity leave, additional maternity leave, leave to which a father is entitled under section 16 of the principal Act, whether or not any of such leave types are postponed under this Bill, and leave granted in respect of health and safety considerations and night work.
Section 13 is primarily concerned with employment rights and provides an amendment to the 1994 Act to provide that employees absent from work on additional maternity leave will be treated for the purposes of all employment rights, other than remuneration and superannuation benefits, as if they remained at work. This provision also applies to employees absent from work for the purposes of attending ante-natal classes or breastfeeding in accordance with this Bill. In effect, this means that time spent on such leave will be counted as service for the purposes of calculating increments, annual leave and seniority.
Employees who avail of the new entitlements in relation to ante-natal classes and breastfeeding are afforded protection under sections 14 and 15 with respect to the termination or suspension of their employment. Section 16 is a technical amendment to clarify that the provisions of the 1994 Act regarding periods of probation, training and apprenticeship apply to both female and male employees who are absent from work on protective leave. Section 17 strengthens the provisions relating to the return to work of an employee who was on protective leave to give effect to the 2002 Gender Equal Treatment Directive. An employee returning to work from protective leave will have a statutory entitlement to any improvement in the terms or conditions of the employment to which she or he would have been entitled if she or he had not been absent on protective leave.
Section 18 applies to employees who return to work on the expiry of protective leave and are offered suitable alternative work, as the resumption of the work which they carried out before their protective leave is not practicable. In such a case, the terms or conditions of the alternative work shall not be less favourable to the employee than those of her contract of employment immediately before protective leave. Employees in this position are also entitled to any improvement in the terms or conditions of the employment to which she or he would have been entitled if she or he had not been absent on protective leave. This section gives effect to the 2002 Gender Equal Treatment Directive. The remaining sections in the Bill deal with technical amendments to the 1994 Act.
This Bill is part of a wider package of statutory worklife balance measures to which my Department is committed under the Sustaining Progress partnership agreement. Yesterday, the Government approved the drafting of amendments to the Adoptive Leave Act which will apply the appropriate outstanding recommendations of the maternity protection review group to the adoptive leave legislation. It is the Government's intention to incorporate the necessary amendments to the adoptive leave legislation into the Bill once it passes to Committee Stage. Furthermore, the parental leave legislation is also due to be amended in line with the agreed recommendations of the working group on the review of that Act.
The Government has also provided a financial commitment of more than €436 million funding for my Department's Equal Opportunities Child Care Programme 2000-2006 to facilitate the development of a well structured and high quality child care service to help parents to meet their child care needs and to enable them to remain in or return to employment, training and education. The increased maternity leave entitlement applied in 2001 alleviates, to a degree, the demand for high quality affordable child care for babies under the age of 12 months. This complemented the equal opportunities child care programme which aims to increase the supply of child care places by 50% over the seven years of the programme and early indications show that these targets will be met.
I look forward to the contributions of the Senators on this legislation which will improve the rights of expectant parents, employees who have recently given birth and breastfeeding employees. I commend the Bill to the House.