Thursday, 25 June 1998
Select Committee on Justice, Equality and Women's Rights DebatePage of 4
This amendment speaks for itself. There has been a delay in this Bill coming to the House and there should be no further delay, so I ask the Minister to delete this subsection to ensure the Bill comes into operation immediately.
Ms O’Sullivan: I agree with Deputy McManus. According to the directive the legislation should have been introduced by 3 June this year and while there was provision for a year’s delay that was only in cases of serious difficulties. There were no difficulties which could not have been overcome in introducing this legislation within the timeframe envisaged in the directive.
Minister for Justice, Equality and Law Reform (Mr. O’Donoghue): I cannot accept this amendment. As I outlined on Second Stage, the date of 3 December 1998 has been chosen for a range of what I consider to be practical reasons. The directive is flexible in nature, which means employers cannot draw on its basic framework to prepare for parental leave, so until the Bill is enacted the details are not certain. The directive allows member states the possibility of using discretion on a range of issues. The deferral of implementation of the scheme until December will allow employer organisations to provide information to their members and to put in place systems for the operation of the scheme. It will enable the making of any regulations which are required, allow for the reconciliation of the parental leave and force majeure schemes with existing non-statutory schemes of special leave, and generally permit the smooth introduction of the scheme. It would be impractical to have a new initiative in Irish working life such as this brought into effect immediately, as is proposed by the Deputies.
The operative date of 3 December 1998 is in full compliance with the terms of the directive. The European Commission has confirmed that the deferment sought by Ireland fully accords with the relevant clause of the directive which permits additional time for a member state to implement the directive in case of special difficulties. Again, I will remind Deputies that IBEC sought a postponement of the operation of this legislation until June 1999. On a number of occasions I have pointed out that we have at all times tried to strike a balance in this legislation between requirements of employers and employees. In those circumstances 3 December 1998 is a happy compromise.
In page 4, subsection (1), lines 12 to 15, to delete all words from and including “the” in line 12, down to and including “employed” in line 15 and substitute “the State or government, as appropriate”.
Essentially, the reason I have tabled this amendment is that, unlike other legislation, civil servants, as officeholders, are deemed to be employees of the head of the Department or office but they are not. Instead, they are employees of the State or Government as appropriate. There are no proposals to alter this situation and that is why this section should be amended accordingly.
Mr. O’Donoghue: The definition in the Bill indicates in the case of a member of the Garda Síochána, the Defence Forces or a civil servant, that the head of a Department is deemed to be that person’s employer. The definition “head of the Department” as supplied in the Freedom of Information Act, 1997, is availed of for this purpose. This means that where a member of the Garda Síochána, the Defence Forces or a civil servant applies for parental leave or force majeure leave he or she applies to the relevant Minister as employer. The use of the definition “head of the public body” does not effect any change in the employment status of the persons mentioned above.
Mr. O’Donoghue: The parliamentary draftsman does not consider the inclusion of this subsection to be strictly necessary as this type of provision is normally included only where a directive is transposed under the European Communities Act, 1972. However, its inclusion in the present measure will not cause any difficulty that I am aware of; therefore, we accept the amendment.
“(4) Where it is proposed to make regulations under this Act, a draft of each such regulation shall be laid before each of the Houses of the Oireachtas and shall not come into effect until a motion approving of the draft has been passed by each such House.”.
The Minister will agree that this is a standard practice and provision in any Bill to which this is relevant but I have difficulties with this procedure. Regulations under any Bill are often substantial, and significant provisions need to be assessed and reviewed by Members before they are brought in. At present we do not have a proper system of monitoring or overseeing these regulations. I know from my experience in this House that there have been times when regulations were accepted which added significantly to the Bill’s provisions in an unexpected manner. The other problem is that people do not know what is in the regulations because they have not gone through any formal procedure in the House. While I accept that this procedure has been used in the past, it is not tight enough to ensure that there is accountability. I propose that, rather than having lengthy debates about every line in regulations - which is usually not necessary - a draft of each regulation is laid before each House and that it should not come into effect until the motion approving the draft has been passed. This would ensure there are checks and balances in place and that that would be normal procedure. The vast majority of regulations would not cause any alarm or concern. However, there are some that people have been unaware of because they follow on from the Bill and do not come under the same scrutiny as a Bill.
It is important that we improve our methods of introducing and implementing legislation. From time to time court cases arise as a result of regulations. The Government of the day might be in a better position to avoid cases going to court if this procedure was adopted. I urge the Minister to look at this amendment because it is important we have a system that is as accountable as possible as well as being efficient. This is a very modest proposal that I ask the Minister to concede.
Mr. O’Donoghue: The Deputy will be aware that section 3(4) provides that the regulations made under the Act must be laid before the Houses of the Oireachtas. A power is reserved to the Oireachtas to annul any regulation which is passed by either House within the following 21 days on which the House has sat after the regulation is laid before it. At that point the regulation would be annulled without prejudice to anything previously done under the regulation.
There are several examples of the kind of regulations which may be made by the Minister pursuant to this legislation: under section 18 regulations stating particulars to be contained in notice to a rights commissioner may be made; under section 21 regulations relating to the calculation by rights commissioner of the amount of compensation to an employer that may be awarded by reference to employees’ remuneration may be made and under section 27, regulations setting out the standard format of records to be kept by employers may be made. Again, all these matters are largely procedural and are akin to the items which are subject of statutory instruments which are variously made by Ministers on a routine basis without any recourse to the type of motion which Deputy McManus proposes.
In the circumstances I do not see any need for matters such as those I have outlined which do not encompass any substantial policy angle to be submitted for the prior approval of both Houses of the Oireachtas. If some unusual circumstance did arise - and I can envisage something unusual happening because something always turns up - then either House could conclude that a ministerial regulation was ultra vires the Act. Then it would be open to Members to invoke section 3(4) and ensure that the regulation concerned was annulled. I believe that is a sufficient safeguard under the circumstances.
Ms McManus: There is a substantial difference between section 3(4) and my amendment in that the regulation is passed and it would have to be annulled subsequently if there is a problem. The Minister would accept, particularly through his openness in accepting today’s amendments from the Opposition and proposals from his officials and his positive attitude to this Bill, shows the strength of having my proposal accepted. It means that difficulties and concerns can be dealt with before the regulations are passed. What is proposed in the Bill - which I accept is standard procedure - means the regulation is laid before the House and can then be overturned, which is a most unusual way to annul regulations.
I am talking about getting engaged in the process before the final regulation is passed in the House, which would allow for the teasing out of matters which might not be of huge significance but could make a difference to whether an individual might challenge the regulations in court - and we have seen regulations being challenged in the courts - or could improve the regulations. For example, I was impressed that the heads of the Freedom of Information Bill - a major Bill - was put before the Select Committee for debate. I am seeking that kind of early warning system in regard to regulations.
Mr. O’Donoghue: All presumptions are dangerous. Prior to drafting and laying before the House any regulations we will consult with employee organisations, which might go some way to meeting Deputy McManus’ concerns. Section 3(2) states:
Before making a regulation under this Act, the Minister shall consult with persons whom he or she considers to be representative of employers generally and persons whom he or she considers to be representative of employees generally in relation to the regulation.
Since the regulation will affect employers and employees, the Deputy might agree they are the most appropriate people to consult prior to laying a regulation before the Houses of the Oireachtas. However, the ultimate safeguard and sanction is with the Oireachtas itself; as I said, if the Oireachtas feels in its wisdom that a regulation is ultra vires it has the power to annul it.
I wish to make it clear that in moving this amendment I am not imposing any obligation on employers to provide paid leave. I draw attention to section 14(1) which provides that an employee’s employment rights, other than his or her right to remuneration or superannuation benefits or any obligation to pay contributions in or in respect of the employment, are protected during parental leave. I also wish to add, lest there be any doubt about the matter, that I am not making any commitment to or signal about any form of State benefit for persons on parental leave.
The reason I am making this change - that is, to delete the words “without pay” - is that some concerns have been voiced in the House and elsewhere about whether the Bill might prevent an employer from paying for parental leave if he or she so wishes. I certainly to do not wish to preclude this possibility or to pre-empt any negotiations on this issue.
I am also conscious of the need to avoid compromising any future negotiations under Partnership 2000 and of the concerns in this regard which the Irish Congress of Trade Unions voiced at a meeting I had with it. I certainly would not wish that the outcome of such negotiations would be frustrated in any way by any provision in this Bill.
As I said in the House last night, it is not possible for me to say at this juncture how this pioneering legislation will develop in the future. I do not want to insert anything into the legislation which would frustrate its growth or its blossoming.
Ms McManus: I am very pleased the Minister and I are on the same side for once. I warmly welcome the amendment. The Minister’s decision to delete the words “without pay” strengthens the Bill’s possibilities enormously.
I was very critical of the fact that parental leave is without pay, which discriminates enormously against people on lower incomes. I accept the Minister is not changing his position in relation to providing for paid leave or expecting employers to provide for paid leave. However, he is opening up a possibility that that objective can be reached.
It is extremely important that this issue is addressed in negotiations between ICTU and the social partners, particularly in view of the Government commitment to protect families on lower incomes and those living in poverty. We must remember there are parents working today who are, in effect, below the poverty line because their incomes are so low.
I cannot imagine that many employers will insist on paying their employees on parental leave but it may be a factor, which alone would justify the deletion of the words. However, it is far more significant that the possibility is being laid out that we can achieve paid parental leave which meets the needs of all parents rather than just some parents. As such, I warmly welcome it.
Ms O’Sullivan: I also congratulate the Minister on deleting the words “without pay”. This was a major point for all. While, as Deputy McManus said, it is not an indication there will be paid leave, it at least leaves the possibility open.
I suggested on Second Stage that, if we are not at the point of providing a social welfare or PRSI payment for people who take parental leave, the Minister for Justice, Equality and Law Reform might, in conjunction with the Minister for Social, Community and Family Affairs, at least open the possibility of developing the family income supplement payment to ensure that low paid workers wishing to take parental leave are not reduced to an extremely low income. That might safeguard workers who currently qualify for family income supplement.
Mr. Higgins: (Mayo) I join with Deputies McManus and O’Sullivan in commending the Minister on this concession. As the Deputies said, it enhances the potential of the Bill. There may be a mutual acceptance in due course on the part of employers and employees that payment is warranted in certain instances, provided it is affordable. The Minister and his Department have obviously had long and protracted discussions with congress and the employer organisations, and I note that IBEC has been mentioned in this context. Have there been negotiations with ISME? How far apart are the employers and ICTU in their views? Is the Minister even cautiously optimistic that it might be possible to breach the distance? Is the main opposition coming from ISME rather than IBEC or is there common resistance to any pay element being introduced?
Mrs. Barnes: I hope this practice of commending the Minister on his legislation will continue. There are models that can be negotiated to ensure the employer does not feel threatened. I know the Minister is not here to debate this matter, but some Deputies have received submissions from ICTU regarding section 6(1).
Mrs. Barnes: I thought it was part of the same section. I know it is not down for discussion, but this extends the definition of “natural parent” to include an employee in loco parentis. I am sorry if this is giving problems, but it should be considered for Report Stage. It is an extension of the parenting role.
Regarding Deputy Higgins’s points, we did not have discussions with ISME. We made it clear throughout the drafting of the Bill that we would open to the views of any interested parties. I met the Irish Congress of Trade Unions and IBEC on a number of occasions, including last week, to discuss this legislation, Needless to mention, the views of ICTU and IBEC are quite divergent as one would expect. The objective is to strike a happy compromise and to allow the legislation to flourish in the fullness of time, which is a matter for future Governments as well as the employer and employee organisations.
Regarding Deputy Barnes’s suggestion that we include those acting in loco parentis, she wishes to ensure the provisions of the Bill are extended. Unfortunately this gives rise to tremendous difficulties as it could lead to a multiplicity of claims for parental leave for the same child. Someone in loco parentis could make a claim and the natural parent could also make a claim. The question of who would be entitled to leave would then arise. Obviously one could not give double leave. If there was a way to resolve this pragmatically, I would be open to discussion. I will have it considered before Report Stage and I am open to suggestions from Deputy Barnes or others on the matter, but it may prove impossible. If it is possible to use some ingenious amendment to allow us to do this, I would be open to any such suggestion.
Mr. O’Donoghue: The parental leave directive stipulates a minimum entitlement of three months parental leave. Bearing in mind the novelty of parental leave in Ireland, the duration of leave is set at 14 weeks. There is a statutory entitlement to 14 weeks maternity leave and four weeks additional maternity leave. Parental leave would be added to the existing entitlement. As the Bill stands, with both parents eligible for parental leave, between them they could have 28 weeks with each child. I have received many submissions from individuals and organisations on this Bill, and I recently met ICTU and IBEC again. I have striven to achieve a balance in the legislation between the needs of employers to manage their businesses and the aim of putting a satisfactory scheme of parental leave in place. In the circumstances, taking what predated this legislation into account, I believe the decision to provide 14 weeks parental leave is balanced and fair and takes the needs of everybody into account. In these circumstances I regret I cannot accept the amendment.
Mr. Higgins: (Mayo) I know the Minister has had negotiations in the context of the 14 weeks. However, has the argument been made to employers that we are not placing them in an uncompetitive situation by extending parental leave, certainly in the context of unpaid parental leave? We presume they will employ a substitute for the period in question. If the person discharges the job in a responsible manner there should be no disruption.
The argument that we are putting ourselves out of kilter with the rest of Europe does not seem to stand up by virtue of the fact that almost every other country seems to have a more liberal régime. For example, Danish parents can take one year’s parental leave; in Finland either parent is entitled to 158 days parental leave in addition to maternity benefit and Belgium has a range of career breaks ranging from six months to five years during which workers receive an allowance corresponding to unemployment benefit.
Some of our most keen competitors in terms of economic performance are the countries with the most generous concessions in relation to parental leave. Yet, we are pitching the period at 14 weeks. Surely an additional four weeks of unpaid parental leave does not impose an undue imposition on employers. In view of there being no provision for paid parental leave, I do not see why we cannot be more flexible in relation to the time frame and the potential allowed by the directive.
Mrs. Barnes: The point is well made, particularly in relation to fears of companies being uncompetitive. We rejoice at being placed eleventh in a survey on competitiveness. Some Scandinavian countries mentioned by Deputy Higgins were higher placed in the same survey which shows their competitiveness was not affected - perhaps it was enhanced - by good work practice. Many of the fears being expressed need not be realised. To extend leave to at least 18 weeks would give some sense of the time needed in the context of babies’ needs.
Mr. O’Donoghue: IBEC was of the view that there should be no paid force majeure leave, something we have acknowledged in the legislation. There are other examples of flexibility in the legislation. For example, it provides for parents of children up to five years of age while most European countries have set the age at three years. In terms of duration of leave most other countries allow a longer period. However, in the case of a mother, provision is made for 14 weeks paid maternity leave, four weeks unpaid maternity leave and 14 weeks parental leave under this Bill. This gives a total of 32 weeks. Adding the 14 weeks leave available to a father under this legislation brings the total to 48 weeks. I know one should not count annual leave for the purposes of the legislation, nonetheless, doing so brings the total leave to over one year.
I accept other member states have longer periods of parental leave. As the legislation develops it may be proved beneficial to further extend leave. In principle I do not oppose this happening in future. However, such legislation is new to the Irish workplace and in such circumstances I did not want to be too radical. At the same time I wish to recognise the need to be innovative, have imaginative legislation and be liberal as far as possible.
Ms McManus: I am disappointed by the Minister’s response. I do not think he is in danger of being radical by accepting the amendment. I am concerned by his almost begrudging approach to the provision. Taking up the option of parental leave must be seen as positive for families, the economy and the workplace. Leave is not mandatory and there should be maximum flexibility. The Bill provides certain flexibility which is to be welcomed. We are suggesting that the time should not be the minimum required under the directive. We can afford to be a little more generous, progressive and forward looking. Our country is not on its knees in terms of economic development. We have the possibility for flexibility and we are not making undue demands on employers as they are not expected to pay for the provision.
Extending the period would confirm that we are a modern State with a good, sound economy and that we recognise the needs of families are central and important to the good of society. Provision should be seen as positive and not be based on providing the absolute minimum. We should go a little further than the directive. The suggested four extra weeks unpaid leave is very modest. Most women my age stayed at home for 20 years minding their children and it was very hard work. To add annual leave is grossly unfair in the context of recognising the difficulties of raising children - I am sure the Minister does not intend being unfair.
We are talking about a substantial activity, namely, caring for the future generation, and not about people lying in bed eating chocolates and enjoying themselves. As a confident society and given the money in the economy we can afford to be a little less grudging and a little more generous.
Ms O’Sullivan: I ask the Minister to take a final look at this matter before Report Stage as I do not see how it would be a huge imposition on employers. In fact, it might suit some employers as it may be easier to get temporary employees if the period was longer. In teaching, for example, a longer period would suit as a term or a school year would be more appropriate. I am not sure what employers’ representatives said in negotiations regarding the length of time, but an extension of time is not necessarily a negative from their point of view.
Ms Fitzgerald: I support the points made by my colleagues. For parents availing of parental leave an extra month can make an enormous difference, particularly in the context of younger children, in terms of a child’s developmental needs. I ask the Minister to be flexible. He has changed the section dealing with unpaid leave which opens the matter in terms of employers’ response to parental leave and leaves scope for employers in a position to pay parental leave to do so if they wish. Increasingly it will be found that employers in a position to do so and who wish to retain staff will pay parental leave.
An additional four weeks could make quite a difference and be significant, particularly in the context of younger children. It would be greatly appreciated by parents and would be good for children. I ask the Minister to consider it.
Ms Hanafin: The more time one has with children the better. In the case of a five year career break, a person is not allowed to take five separate years. The same should apply to the 14 or 18 weeks provision. A person should not be allowed to take 18 separate weeks spread over a number of years because it would cause terrible problems for employers. Perhaps guidelines could be given on the length or number of blocks which a person could take. In the case of a career break, a person can take two only - a three year break and a two year break.
Mr. O’Donoghue: To take Deputy Hanafin’s point; unless there is an agreement to the contrary, the time is taken in block. I anticipate agreement at local level as to when the time would be taken. Obviously, that is what the legislation anticipates. It is important to realise there is little room for discretion in this matter at present. It must be remembered that some employers are totally resistant to the idea of parental leave. We are introducing this concept into Irish working life and people will have to be given the opportunity to get used to it. If we introduce 18 weeks leave at this point, I envisage an upset in the balance of the legislation. Employer organisations would be extremely unhappy about such a last minute about-turn on my part.
It is a question of striking the right balance at the outset and then allowing the legislation to develop in accordance with the mores of society. I am not for one moment suggesting that the time stipulated in the legislation will be there for all time. I cannot make any predictions in that respect. However, the 14 weeks provided for in the legislation was given careful consideration over a protracted period. I am satisfied as the legislation sets sail that this is the appropriate amount of time.
Ms Fitzgerald: Last night the Minister spoke about meeting the employers and the trade unions and the balances which had to be struck in the Bill. If the Minister had met parent groups, representatives of nursery associations or organisations representing children, what would they have said? They are a constituency to which we and the Minister must be sensitive. If they had the same opportunities to lobby on this matter as the employer and trade union organisations, they would have welcomed another four weeks, especially since it is unpaid, as it would be in the interests of children and parenting. I ask the Minister to take that one board. I assume he has not met those groups because they are not organised in the same way as the social partners. We have a responsibility to that constituency as much to employers and trade unions. I wonder if representations were received from those groups.
Mr. Higgins: (Mayo)In drafting the Bill, was consideration given to disabled children as against what one might term “normal” children? In a case of a child who is, unfortunately, disabled or handicapped there is a need to look objectively and compassionately at the needs of such a child over and above those of an ordinary child who, thankfully, has full faculties, etc.
Mr. O’Donoghue: As Deputy Higgins pointed out, no distinction is made in the legislation between children with disabilities and able bodied children and there is a good reason for that. It was a matter about which we thought but, in practice, it was found to be extremely difficult to frame and define. As regards the position of parents, which Deputy Fitzgerald raised, and whether we met such groups, we met employer and employee organisations. It was open to any other organisation which wished to meet with me or my officials to do so. I would have been happy to oblige any organisation which wished to express a view on this legislation.
We received correspondence from parents and it is significant that their letters did not dwell on the duration of parental leave. The directive provided for three months so everybody took it that that was being implemented. The three months became fixed in people’s minds as being the duration of the leave. As it turns out, we provided for 14 weeks. The majority of those from whom we received correspondence were concerned about the age limit and the issue of retrospection. We provided for a reasonable degree of retrospection - 3 June 1996 - having regard to the needs of employers and employees. So far as the age limit is concerned, most European states have set the age limit at three. Two countries have a higher age limit than ours but our age limit of five is generous, again having regard to the balance which must be struck.
This amendment proposes to delete subsection (2). The legislation applies to a child born after the date in question - 3 June 1996. If I had a child on 3 June 1995 that child would be three and a half on the date of implementation of the legislation on 3 December 1998. As I read the legislation, I would not be entitled to take parental leave, although the child would not have reached the age of five. In other words, people who should be included are excluded in the legislation. I do not suggest a back dating of rights but a child born before the date in question and who has not reached the age of five should be included. From 3 December of this year until a child reaches the age of five, a parent should be able to take parental leave. I do not understand the reason for this provision and I propose the subsection be deleted.
Mr. Higgins: (Mayo)My amendment seeks to do exactly the same. The directive as it applies to this Bill will come into force on 3 December which means children of two and a half years only qualify. I am at a loss to know why we cannot be more generous and allow the full scope and flexibility afford by the directive. That is what I am seeking to do by the inclusion of “or a child who has not attained the age of five years on that date” in my amendment. I believe that would meet Deputy O’Sullivan’s objectives also.
Mrs. Barnes: As Deputy O’Sullivan pointed out, there is a certain discrimination built into the Bill in regard to the cut off date. In real terms, not that many people will seek unpaid leave for that particular age group so I do not think the provision will have a huge impact. However, it will have an impact in regard to the spirit of the Bill.
Mr. O’Donoghue: The directive on parental leave does not specify any form of retrospection. The amendments, if accepted, would mean that, on the passing of the Act, all those parents with children up to the age of five years would become entitled to parental leave. Parents of children who are currently aged three or four years would obviously seek to take their parental leave before the children reached five years of age and this would result in a large demand for parental leave in the initial years of the scheme’s operation.
Employer organisations are, of course, opposed to any form of retrospection while employee organisations feel full retrospection should be provided. Some committee Members obviously feel the retrospection does not go far enough and that it should be backdated to 1994. It was necessary to balance employer concerns about the backlog which would be created if full retrospection were granted and the expectations of parents with young children. In those circumstances, we decided that parental leave should be granted to parents of children born on or after 3 June 1996 which happens to be the date of the adoption of the directive. This is a workable compromise.
Very real difficulties would be created if we went any further with retrospection. There would unquestionably be a large backlog and a major amount of disruption would be caused for employers who are, incidentally, opposed to any form of retrospection. The objective of the exercise was to try to reach a happy compromise. While it is true that the Bill does not totally satisfy anybody, it has achieved the necessary balance.
Ms McManus: It is difficult to accept the anomaly created between children who are, for example, two years of age and those of four years of age in that the former’s parents would have the benefit of parental leave while those of the older children would not. Retrospection is provided for in this Bill and it seems anomalous not to allow children born prior to 1996 - an arbitrary date - to be included in the Bill. I suggest the Minister is afraid the floodgates will open on this issue. He seems to be painting a rather dramatic picture; I cannot envisage the floodgates opening given the restrictions in the Bill.
I expect employers to object to parental leave; they must fight their corner but there is an onus on public representatives to educate them as to the benefits of this kind of social measure. It would be amazing if employers did not have objections to everything in this Bill and did not make their case against it trenchantly. However, that does not mean one must cravenly concede to them on any issue.
If the Minister is afraid there would be a concentration at the point where children would soon reach five years of age and no longer be eligible for the benefit, he should accept the amendment that five years be substituted for eight as that would surmount the problem. The Minister could relax as parents would not have to take parental leave immediately. Retrospection would still only apply for a five year period but the age limit could be increased from five to eight years.
Ms Fitzgerald: What assumptions was the Minister making on the numbers who might take up parental leave and the costs which would be incurred as a result? I agree with Deputy McManus that many people will not be in a position to take unpaid parental leave. People may not avail of parental leave for a variety of reasons, career and otherwise. Some may not want a break in their employment pattern. This provision introduces a level of inequity between children and parents’ opportunities to avail of parental leave which is unnecessarily restrictive. One could find that some people will be eligible for parental leave while others will not, in spite of the fact that a very small difference may exist in their children’s ages.
Ms O’Sullivan: I do not accept this is retrospection at all as, in effect, it does not seek that anyone be accorded parental leave on a date prior to the implementation of the legislation. Neither does it seek that parental leave be granted to anyone whose child is older than the limits stipulated in the legislation. I do not understand what difficulties exist in this regard or why the provisions are being described as retrospection.
Chairman: I agree with the principle of this legislation but, as someone who has employed people in the past, I agree with the Minister that these provisions must be eased in very slowly. Many problems could be caused for employers if the provisions in the legislation are backdated. The Minister is achieving a balance here. The matter will be re-examined in two years to see how it is working and certain changes may be introduced at that stage. I am aware the floodgates have not opened in other countries in this regard but they may here. We must proceed slowly with this measure as many problems could be caused to companies and employers if a number of people were to suddenly seek leave.
Mrs. Barnes: I want to allay the Chairman’s fears. I attended a conference in 1980 where the issue of parental leave was top of the agenda. This is not a new issue. We garnered a wealth of experience in regard to the Equal Pay Act, Employment Equality Act and Maternity Act which were all introduced slowly and painfully. However, no floodgates opened in those instances. Parental leave is not a holiday. I would like to think that fathers, in particular, would line up to take parental leave although, unfortunately, I know I will be disappointed.
Ms Fitzgerald: There have been 17 years of discussion on this issue at EU level and 17 years during which employers, trade unions and parents had time to prepare for the impact of this legislation. I was on the Commission on the Status of Women with employers and they had concerns about payment then. I understand those concerns. I am not suggesting we should introduce legislation without examining the costs but employers have had time to adapt to the implications of this amendment.
Parents and women have been waiting for this for a long time. Those constituencies deserve as much hearing as employers. For years women have been working to achieve more flexibility to combine work and family life. We know how difficult this has been and the stress on many women and men trying to combine the two. There should be more consideration of this before the final discussion on this Bill.
Chairman: It may have been discussed in Europe and in Ireland for 17 years but we have been around long enough to know that if you asked most employers about this they would say they never have heard of it. It will be a huge shock. I am not against it but it will be an eye-opener to many people when this legislation is in place.
Mr. O’Donoghue: The question of retrospection has to be dealt with in the legislation now. I have sought to reach a compromise where I would facilitate as many new parents as possible while recognising that we could not have a great degree of disruption in the workplace as that would be hard for employers. There is no doubt that if the retrospection now being suggested was to be implemented in the legislation, it would lead to a backlog of claims for parental leave and this would cause difficulties.
I have recognised nonetheless that there is a desire for some form of retrospection. There is no requirement in the directive to oblige me to have any form of retrospection but I decided there should be a reasonable degree of retrospection and I deemed 3 June 1996 - the day of theadoption of the directive - to be the appropriate date.
No matter how the legislation is amended there will be discrimination because when there is a cut off point that is clearly a discriminatory decision. Unfortunately, as in all such decisions, some people will benefit and others will not. I do not accept Deputy Fitzgerald’s point that employers have had plenty of time to consider this legislation. That is not true. The directive allowed for a considerable degree of flexibility by member states in transposing the directive into legislation. Therefore, employers could not have been aware of the contents of Irish legislation as they could not second guess what the Government would accept in terms of the discretion it was allowed to exercise.
There will criticisms from every side on this matter. I am as concerned about ensuring that a large enough number of employees benefit as I am concerned about ensuring that employers are not disrupted to an excessive degree. In those circumstances the balance had to be struck and that balance was 3 June 1996. I cannot reopen that debate now for the reason that each side has had the opportunity to study our proposals and each side had the opportunity to make its own proposals and each knows what to expect. I do not intend to move the goalposts now. I accept that the legislation is not perfect for either side. It never will be but where retrospection is concerned I have been as reasonable as possible within the parameters in which I found myself.
Mr. Higgins: (Mayo)I appreciate the point suggested by the Minister and the Chairman that employers will be caught unaware. I recall an article in The Irish Times of 10 February which stated that the Heads of a Bill on parental leave for children under eight years of age was being prepared and would be introduced in due course.
Mr. Higgins: (Mayo) From the point of view of the imminence of the Bill, it does not come into force for six months. The Minister mentioned in his Second Stage speech that the take up rate of parental leave among German males was only 1 per cent. I do not think there will be a deluge of claims. As Deputy Barnes said, this is hard work; it is no holiday. The male species in this State is no different to his German counterpart in his anxieties to take up the options afforded in the Bill. I am disappointed the Minister will not relent on this issue.
Ms Fitzgerald: The Minister commented that employers could not see round the corners on this issue. I disagree. This has been on the agenda and employers knew legislation was to be introduced. The Minister said we had gone so slowly introducing this that employers were well versed in what is happening in Europe. Employers in other member states have been dealing with parental leave for some time. Employers in this State are far-sighted people who have succeeded in creating employment in a competitive environment. I do not accept that this is a new concept to them.
When maternity leave was introduced employers were nervous initially. It was the same with sick leave. In two years time this discussion will seem as ridiculous as some of the discussions were on maternity leave. It will not create any level of problem; it has not done so in similar economies. There is no evidence from Sweden or Denmark that parental leave has created huge economic problems for employers; it goes in the opposite direction. If employees have good quality services there is increased productivity and profits rise. That is the more likely trend than the doomsday scenario being painted about hundreds of employees walking out on employers. The assumptions underlying some of the debate are incorrect.
Ms McManus: I find it bizarre that IBEC would not be aware of or informed about parental leave. IBEC is made up of some of the most influential and powerful people in this State. As an organisation it is extremely well informed about changes occurring at European level that will have an impact here. If employers are ill-informed about this legislation they should question what IBEC is doing for them. These are representational organisations with tremendous clout and influence when it comes to determining legislation. They are consulted on all aspects of legislation that affect business. That employers are ignorant about the changes occurring as a result of a European-wide directive says a lot about the function of IBEC.
Will the Minister accept that practically every form of progressive legislation and change that occurred in the last 25 years, since the women’s movement began, met with almost identical arguments from whoever was in power on issues such as equal pay, contraception and so on that sooner or later the floodgates would open? It is important that we move on from that type of presumption and automatic knee-jerk response. We are talking about a very modest proposal that will cost parents money at a time in their lives when they cannot afford it. These are not middle-aged people whose children have grown up. They are young families who are trying to meet mortgage repayments, educational requirements and the other needs of young families. The majority of young families will not be able to afford parental leave. It is difficult to imagine the floodgates opening. If the Minister is worried that even a small concentration of people will apply for parental leave, he should accept the amendment which allows for eight rather than five years. The Minister will probably say employers will not like this, but I do not get the feeling employers are too concerned about this Bill. I understand they must fight their corner, but there is no big lobby against parental leave. The reason is that employers know this will be of limited advantage to young families.
Ms O’Sullivan: The directive has been on the table for implementation since June 1996. We are asking that all children under the age of five or eight - whichever is accepted at the end of this debate - be included in the legislation.
Mr. O’Donoghue: I find this debate almost amusing. This directive was adopted on 3 June 1996 when the parties, of which Deputies McManus, O’Sullivan and Higgins are members, were in Government. All that was needed was to bring forward the legislation and implement the directive. When I came into office the directive was not implemented. I am bringing forward legislation that will allow parents - male and female - in the workplace to take parental leave and I am being verbally assaulted by people who did nothing to introduce the legislation. I can take a joke, but when it goes beyond a joke I must bite back.
Parental leave is a new concept. It is provided for in the directive, but there is a considerable amount of discretion allowed to member states in transposing the directive into native legislation. Employers and the Irish Congress of Trades Unions could not have second-guessed what the Government would do. Deputy McManus seems to be suggesting that IBEC was consulted and that there was a craven giving in to its demands. This is absolute nonsense. The truth is that in true social partnership, pursuant to the directive, the Government was obliged to consult the employer organisation in as much as it was obliged to consult ICTU. I met both organisations on a number of occasions and my officials also met them on several occasions to discuss the legislation. In so far as was practicable their views were taken on board. There is no question of one being favoured above the other because that would not work in true social partnership.
Only three countries in the European Union, Ireland, Luxembourg and the United Kingdom, did not have parental leave legislation prior to the adoption of the directive by member states on 3 June 1996. It was much easier for the other member states, therefore, to adopt the directive and transpose it into native legislation. All they needed to do was make some amendments to their existing parental leave legislation. It was different for us because this is pioneering legislation and is different from anything which has gone before. It is a major departure in Irish labour law and in society generally.
I reject in the strongest possible terms that anyone was painting a doomsday scenario in relation to the legislation. To suggest this when the Government is bringing forward legislation to allow for parental leave for the first time is not just laughable but also nonsensical. When asked to consider the matter, the Department of Social, Community and Family Affairs estimated that up to 95 per cent of women would take parental leave and that if this were to occur, and if the retrospection were too lengthy, there would be a backlog which would create difficulties for employers. The estimate for men was 10 per cent at most. I cannot say whether the figures will be 10 per cent or 95 per cent because I simply do not know. Neither did I say it will damage the economy. We are allowing for parental leave for the first time in Irish law because it is the right thing to do pursuant to the directive. However, we must be pragmatic about applying the directive to the Irish situation and anyone who suggests otherwise is living in cloud-cuckoo-land. I could accept some of the criticisms as being generous were it not for the fact that the rainbow coalition Government sat on the directive from 3 June 1996 to the day of the general election in May 1997.
|Barnes, Monica,||Fitzgerald, Frances,|
|Bradford, Paul,||Higgins, Jim,|
|McManus, Liz,||O’Sullivan, Jan.|
|O’Donoghue, John,||Ardagh, Seán,|
|Power, Seán,||Hanafin, Mary,|
|McGuinness, John,||O’Flynn, Noel,|
|Ryan, Eoin,||Wright, G.V.|
Will the Minister to consider a child’s needs. There is a tendency to think that once a child goes to school he is able to look after himself. However, we all know that children of six or seven years of age are extremely vulnerable and that going to school is a major event in their lives. To presume that a child of that age would not need specific care, which can be provided for under this Bill, is a mistake. The Minister will probably argue that he has gone over the base line of the directive. However, I ask him to remember that we can afford to provide for children. This is not about parents but about children and ensuring they are nurtured and cared for in a way that is appropriate to their needs and at a time when they need it most. I ask the Minister to consider increasing the age to eight, which is the norm in a number of European countries, particularly the Scandinavian countries.
Mr. Higgins: (Mayo)I support everything Deputy McManus said. Given that we were not generous about retrospective aspects of the Bill, I do not understand why we cannot concede on this point. We must put the child centre stage. We are talking about the most formative years when a child’s values, attitudes and temperament are formed. I support this amendment because it is crucial that we avail of the maximum provision. According to a newspaper article on 10 February, the Minister said in Dublin Castle that parental leave should be given up to eight years of age. Another newspaper article on 30 May frightened people when it reported that it would only be given for up to two years of age. Everyone breathed a sigh of relief when five years was included in the Bill. The Department was obviously considering on 10 February giving parental leave up to eight years of age. I do not understand why that cannot be conceded.
Ms O’Sullivan: Few parents will take this leave for children between the ages of five and eight. However, we should be as generous as possible for those who want to do so. There may be cases where a child has a particular difficulty, is insecure or, as in the case referred to earlier by Deputy Jim Higgins, has a physical or mental handicap. This amendment would give parents extra leeway if they wanted to stay at home with a child up to the age of eight and it would not cause particular difficulties. By interpreting the directive in a generous manner, we will provide for as many families and children as possible.
Mrs. Barnes: I support this amendment. Few families will take this leave for children between the ages of five and eight because they will be at school so there will not be a huge demand for attention. It would be generous to include children between those ages, particularly if they have special needs.
Mr. O’Donoghue: Under the terms of the directive, it was possible to set the upper age limit at two or eight or anywhere between those two ages. If the Government was set on delivering only the minimum required by the directive, it could have fixed a lower age limit such as two, three or four. However, the age was set by the Government at five I considered that to be fair. I do not know what was in The Irish Times on 10 February. It is a fine newspaper but I do not write for it. Perhaps if I did, it might be better. Only two member states, Sweden and Denmark, have an upper age limit of eight. In the vast majority of EU member states the age limit is set at three. I decided to set the age limit at five which in general terms is the age by which almost all children have started school. I would have thought that struck a fair balance. It exceeds the EU norm and it gives parents the opportunity to take parental leave up to the time that the child begins school and a little beyond it. We have been more than reasonable in setting the age limit at five years of age. In those circumstances, I cannot accept the amendment.
This amendment seeks to delete subsection (4) which provides that an employee must complete one year’s continuous employment with the employer before taking parental leave. The requirement to serve a full year’s employment shows a lack of generosity. I ask the Minister to consider the amendment.
Mr. O’Donoghue: I do not propose to accept the amendment. I consider it reasonable that before someone takes parental leave with all the service entitlements preserved, he or she should have been with the employer for a reasonable period of time. Without that requirement, a person could apply for parental leave within a few weeks or days of starting his or her employment. The directive suggests the minimum service requirements in subsection (4) can be built into national schemes of parental leave. I am conscious, however, that the requirement for a year’s continuous service might leave some employees at a disadvantage. For this reason, I have included section 6(8). This allows an employee whose child is approaching the upper age limit but who has not got the full year’s service to take parental leave on a pro rata basis. That is a reasonable approach to take.
This amendment would allow for the transfer of parental leave. If a child’s father was not able to or did not want to avail of his leave because of employment conditions, this amendment would make it possible, in the interests of the child, to transfer the leave entitlement from one parent to the other. There would be no compulsion attached to this. It would be with the consent of the employer.
Ms Hanafin: I strenuously oppose this amendment because it will end up being a cop-out for men in that the father will want to transfer the leave to the mother. It has been found in many other countries that men do not avail of parental leave because of the culture of the workplace. It has nothing to do with finance but because they do not want to give domestic reasons as an excuse for leaving the workplace. The only country where men have availed of the leave is Sweden where it is not permitted to transfer a part of it and where that part must be availed of by them. It is important the onus be put on both parents to share the responsibility and not to allow anyone to opt out.
Mr. O’Donoghue: Deputy Hanafin is correct in what she said. Deputy Higgins is beginning to resemble the grand old Duke of York. I emphasised on Second Stage that, as parental leave is available to both men and women, one of purposes of the directive was to encourage the sharing of family responsibilities between men and women. International experience has shown that, where transfer of leave is allowed, the traffic is invariably in one direction, from fathers to mothers. If transferring were allowed, it would almost certainly result in the woman taking the parental leave and few transfers would go in the opposite direction. Were I to accept Deputy Higgins’s amendment, I would dilute the Bill to the extent where I would almost negate its efficacy. In those circumstances, I do not propose to accept the amendment. If Deputy Higgins presses it, he may have difficulty in obtaining the support of certain luminaries in his party.
Mr. Higgins: (Mayo) There is no onus on anyone to take parental leave; there is the option of availing of the entitlement. It is to be hoped that it would be availed of by both parents but there is no obligation, onus or compulsion on them to avail of it. Where it is not practical for both parents to take leave, rather than deprive the child of the additional 14 weeks, there should be the possibility of transferring the leave. Parental leave is not availed of by males in many cases whereas it is by females. The amendment would allow a situation where leave not availed of by men could be transferred which would give the child the additional weeks of parenting. It would not be used as a cop-out and it is something which should be inserted in the Bill to allow one parent additional time with the child in circumstances where it was neither practical or possible for the other parent to avail of his or her parental leave entitlement or where he or she was not willing to avail of it.
Amendments Nos. 13 to 16, inclusive, not moved.
Mr. Higgins: (Mayo) I move amendmentNo. 17:
In page 7, after line 48, to insert the following subsection:
“(4) Where an employee is entitled to parental leave in respect of more than one child and the children concerned are children of a multiple birth, the period of parental leave taken by him or her in any period of 12 months may amount to 20 working weeks.”.
Can the Minister explain the existing provision? I understand there has been a change in the concession in the wake of what Senator O’Meara raised in the Seanad.
Mr. O’Donoghue: I am not sure what is intended by Deputy Higgins’s amendment. The Bill fully recognises the position of parents of twins, triplets or a higher number of multiple births. Section 7(3), as amended by the Seanad, provides that, except in the case of a multiple birth, a parent may not take more than 14 weeks in 12 months without the employer’s consent. In other words, the parent of a twin or triplet can take 28 weeks or 42 weeks as the case may be in a 12 month period. The amendment proposed would have the effect of restricting the leave which could be taken by parents of twins or triplets in a 12 month period and this would not be welcomed by such people. Given the small incidence of multiple births, I am not disposed to restricting the entitlement in the manner proposed. I cannot accept the amendment but I appreciate it may have been drafted prior to the situation which arose in the Seanad.
Amendment, by leave, withdrawn.
Section 7 agreed to.
Ms McManus: I move amendment No. 18:
In page 8, subsection (1), line 16, to delete “6 weeks” and substitute “4 weeks”.
Perhaps the Minister would adopt a reasonable approach and accept this amendment. It does not have huge implications for employers, if it has any. However, it recognises the reality of family life in that, if someone plans to take parental leave, six weeks’ notice is unreasonable. If a child requires the presence of a parent for whatever reason, and there are many reasons a parent might choose to give up work for a while to be with a child, the requirement of six weeks’ notice is too long. Four weeks would be sufficient for an employer to find a substitute and it would also give flexibility in the tending of family needs. I am dealing with the practicalities of why a parent would take parental leave where it was not a case of them wanting to be with their children but where a child needed his or her parents and this was not covered by force majeure. Six weeks is a long time to wait before the needs of a child can be attended to and four weeks is adequate and reasonable for any employer to make arrangements.
Mr. O’Donoghue: As soon as an employee has given notice to his or her employer under section 8(1) of his or her proposal to take parental leave, the employer must consider how the employee’s job is to be performed during his or her absence on parental leave. The employer may need to engage a replacement employee or to rearrange the duties of other employees. There is a short timeframe for this to be done since the confirmation document agreeing the leave must be signed in accordance with section 9 not later than four weeks before the parental leave commences. The scheme of parental leave must address the realities of the timescale which an employer might require to recruit a replacement employee. If the timescale is unduly compressed, employers would have far greater recourse to the postponement provisions of section 10.
Section 8(4) provides that there can be agreement between the employer and the employee where subsection (1) is concerned and that, notwithstanding subsection (1), agreement can be reached and the employer can, at his or her discretion, treat the leave as parental leave. The Act would apply accordingly. Some states have notice periods of up 13 weeks. On balance, six weeks is a measured period from the perspective of both the employer and the employee. If the timescale were compressed, unnecessary difficulties and tensions might be created.
Amendment, by leave, withdrawn.
Chairman: Amendment No. 20 is an alternative to amendment No. 19. Amendments Nos. 19 and 20 can be discussed together. Is that agreed? Agreed.
Ms McManus: I move amendment No. 19:
In page 8, subsection (6), lines 44 and 45, to delete paragraph (b), and substitute the following:
“(b) in the case of any other child, the date of birth of the child and confirmation that the employee proposing to take leave is a parent of the child.”.
I put down this amendment not because I believed the wording was the best alternative to what is in the Bill but because I wished to raise the issue. The Minister’s amendment addresses it adequately so I will accept it instead of amendment No. 19.
Amendment, by leave, withdrawn.
Mr. O’Donoghue: I move amendment No. 20:
In page 8, subsection (6)(b), line 44, to delete “parentage” and substitute “employee being a parent of the child”.
This amendment will address the Deputy’s concerns. It clarifies the provision in subsection (6) which relates to furnishing the employer with necessary information which will show that the employee is the parent of the child for whom parental leave is sought. The use of the word “parentage” might have implied that the employer was entitled to seek information regarding both parents of the child. The amendment confines the information that may be sought by the employer to such information which shows that the employee is the parent of the child in respect of whom parental leave is sought.
Amendment agreed to.
Question proposed: “That section 8, as amended, stand part of the Bill.”
Ms McManus: Something should be done to encourage mothers, particularly single mothers, to name the father of the child on the birth certificate. Many fathers might wish to take parental leave but they do not have written proof of being parents because their names are not on the birth certificates.
Mr. O’Donoghue: That is a matter for mutual agreement between the parents.
Question put and agreed to.
Sections 9 and 10 agreed to.
Ms McManus: I move amendment No. 21:
In page 9, subsection (1), line 38, to delete “for such” and substitute “until a time acceptable to the employee, for a”.
This is an important amendment given that this section makes provision for employers who find it difficult or impossible to provide for parental leave as requested by the employee. While it should be recognised that employers might have difficulties and that these matters are not always streamlined, it is unacceptable to provide that the employer can determine, without having the agreement of the employee, when the parental leave should be taken. The employer must ensure that it is with the agreement of the employee.
Under this section, if parental leave is not taken at a particular time the employer must provide time for such leave within a period not exceeding six months. However, that should done at a time when the employee wishes to take parental leave. I can give a rather ridiculous example. An employer might insist that an employee takes parental leave at a certain time, but the employee’s child might not be at home. The child could be visiting its grandparents for a month. However, the employee has no choice but to take the parental leave even though it does not suit. The amendment is a reasonable proposal in that context.
Mr. O’Donoghue: The EU parental leave directive includes provision for postponement of parental leave by the employer in circumstances of difficulty caused by lack of replacement employees, seasonability, other employees on parental leave and so forth. Section 11 gives effect to that provision. Before postponing the leave, the employer is obliged to consult the employee. If both parties were obliged to agree the postponement arrangements, it would swing matters to an excessive degree in favour of employees. In recognition of the situation in which employers might find themselves, I do not propose to accept the amendment.
Ms McManus: That is extraordinary. This section will give the employer the right to determine the time when an employee can take his or her parental leave. The grounds for doing so will be that the employer cannot provide alternative staffing. That is ridiculous. Already the employee is put out by the fact that the employer cannot make the necessary arrangements to satisfy the employee’s request for parental leave. The employer is already being given a concession under this section which recognises that the employer can have difficulties in this area.
However, unless the employee is allowed to have an input into the arrangement rather than simply acquiesce to it, the legislation is nonsense. What happens if the time does not suit the employee and does not have a value for the employee or the child? It might not suit because of school holidays and so forth. Everybody is concerned about latch key children. What about a child who is on holiday from school and the parent has presumed he could take over responsibility for the child during the holiday period? It does not make sense to provide parental leave on the basis that the employee has no say about whether the time suits him or her.
The Minister has given a concession to the employer. He talks about balance and consulting with the social partners but the amendments we have received have not been suggested by IBEC but by ICTU. Employers have nothing to complain about and they have not been lobbying for changes in the Bill. ICTU has proposed amendments to deal with concerns it has about the Bill. I am also concerned about this provision. The amendment will not cost anything and will ensure there is a reasonable relationship between the employer and the employee. The employee will already feel aggrieved because the employer did not concede the request for leave. To add the further grievance that the employer will not even ensure that the time suggested is agreed is highly unsatisfactory.
I intend to return to this matter on Report Stage. It is unfair to employees.
Mrs. Barnes: Deputy McManus has raised a serious matter. The provision could be used obstructively and negatively by an employer to dissuade employees from seeking parental leave. If a climate is created in which one never gets one’s leave when one needs it and in which this provision can be used as an obstruction, is there machinery under other legislation to which the employee could make his or her case? Can it be brought, for example, to the Equality Authority? What recourse has an employee if this provision is used obstructively against him or her?
Mr. O’Donoghue: It is not as bland or as simple as that. First, notice must be given to the employee not later than four weeks before the intended commencement of the leave. Second, the question of postponement of the leave is addressed by the legislation specifying that the postponement cannot exceed six months. There is also the provision in section 11(2) for consultation between the employer and employee. There is possibly a case for some adjustment, as has been suggested by the Deputies. An employer could continue to refuse leave and, in that way, determine when the leave would be taken. That was not my intention. Nor do I wish to leave employers in difficulty caused by the lack of a replacement and I am mindful of the provision of force majeur leave which can be availed of in the case of a family crisis. Nonetheless, it appears prima facie that there may be dangers here and in those circumstances I will look at what Deputy McManus, in particular, had to say and I will revisit this matter on Report Stage.
Amendment, by leave, withdrawn.
Section 11 agreed to.
Chairman: The Minister for Justice, Equality and Law Reform is obliged to leave. I welcome Minister of State at the Department of Justice, Equality and Law Reform, Deputy Wallace.
Chairman: Amendment No. 22 is out of order.
Amendment No. 22 not moved.
Chairman: Amendments Nos. 23 and 26 are related and may be discussed together.
Ms McManus: I move amendment No. 23:
In page 10, subsection (2), line 12, to delete “reasonable” and substitute “specific”.
Mr. Higgins: (Mayo) The practicality of this section will be determined by people’s economic circumstances. The vast majority of young couples find it difficult to survive economically, make mortgage repayments and meet day to day running costs. If one parent gives up a wage of between £150 and £200 per week over a period of 14 weeks, the cost to the family will be £2,500. The vast majority of young parents will not be able to avail of parental leave because the legislation has no built in financial provision. The take-up figures will show this. This is a worthy measure but it will not work in the absence of financial support.
Ms McManus: I am concerned about this whole section and the Minister must look at it again. Amendment No. 26 attempts to deal with the matter but it does not go far enough. Having looked again at my own amendment I realise it does not go far enough either.
Late last night the ICTU asked that this section be deleted because it breaches natural justice in that it affords an employer a right, unilaterally, to terminate parental leave and will bring the legislation into disrepute as it will be impossible to police. It should be done by way of a code of practice.
I am concerned that a general right is being given to an employer to decide that the terms of parental leave had been breached or abused. The term “reasonable grounds” is not sufficient to protect workers’ rights. The Bill deals with the possibility of an employee taking advantage of parental leave legislation and abusing it. I accept there may be people who would do that. There are also employers who abuse their positions, who use the system in an unethical way and take advantage of their employees. It is possible that an employer would make life very difficult for an employee for reasons other than the employee’s abuse of parental leave. This section does not adequately deal with this possibility.
There is no appeals system. Is it right that an employer can determine that abuse has taken place and act accordingly? Notwithstanding the various statements which must be provided under the Minister’s amendment, any appeal by the employee is made to the employer. The vast majority of employers are good and fair but there are some who abuse their authority and power and would use an opportunity provided by legislation to do an injustice to an employee. The section allows no room for appeal by an employee and appears to me to go against natural justice. It will frighten parents from taking up the option of parental leave.
I am sure this situation has parallels in other areas of labour law. I question the wisdom of the Department of Justice dealing with this legislation. I feel sure it would be more effectively handled by the Department of Enterprise, Trade and Employment. I do not wish to criticise the Department of Justice officials, but the Department may not have a sufficient bank of experience to deal with legislation of this sort.
This section presents an employer with the opportunity to take advantage of an employee in a way that is unacceptable. The whole section should be looked at again. My amendment is not adequate but neither is the Minister’s.
Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): The ministerial amendment addresses the concern about whether the section as drafted is consistent with the requirement of natural justice and fair procedures. The employer who proposes to terminate parental leave is now required to give prior notice of such an intention to the employee and to receive and consider whatever submission, if any, that employee may put forward. That can be appealed on to the rights commissioner who will adjudicate on it.
It is important to note that the phrase “reasonable grounds” is used frequently in legislation. The new subsection which embodies a requirement to send a notice to the employee containing a summary of the grounds for terminating or refusing to grant parental leave encompasses what Deputy McManus attempted to do in her amendment. An employer will be required to send notice giving reasons for his or her decision and the employee will have the right of reply. If there is a problem it can be appealed to the rights commissioner. The section will have to remain. If we removed the section we would remove recognition of the possibility of abuse of parental leave. We hope the changes we have made will deal with the concern expressed by the Deputy.
Ms McManus: I was not arguing for a removal of the section. It needs to be re-examined. I welcome the Minister of State’s response. Is the employer legally bound to accept the decision of the rights commissioner?
Miss M. Wallace: If the decision is not accepted it can be appealed to the Labour Court in the normal way, but the final decision has to be accepted. One party or the other may accept the decision at that stage or appeal it.
Ms McManus: There are difficulties with that process.
Miss M. Wallace: We can look at it for the Report Stage.
Ms McManus: The Minister of State will be aware that Dublin Airport was closed because a certain employer did not accept the Labour Court’s recommendations.
Miss M. Wallace: We can look at it for the Report Stage next week.
Mrs. Barnes: The ICTU has suggested that the section could be seen as affording an employer the right to unilaterally terminate the parental leave and it considers that this matter should be governed by a code of practice. Could that approach be considered when the Minister of State is reconsidering this matter? It might provide for greater justice and fairness for the employee.
Miss M. Wallace: Perhaps the Deputy will provide us with more details on the code of practice she envisages before the Report Stage and we will examine the matter.
Mrs. Barnes: I will.
Amendment, by leave, withdrawn.
Amendments No. 24 and 25 not moved.
Miss M. Wallace: I move amendment No. 26:
In page 10, between lines 35 and 36, to insert the following subsection:
“(6) Where an employer proposes to give a notice under subsection (2) or (4) to an employee of his or hers, the employer shall, before giving the notice, give notice in writing of the proposal to the employee and the notice shall contain a statement in summary form of the grounds for terminating, or, as the case may be, refusing to grant, the parental leave concerned and a statement that the employee may within 7 days of the receipt of the notice make representation to the employer in relation to the proposal; and any such representations made by an employee to an employer within the period aforesaid shall be considered by the employer before he or she decides whether to give a notice under subsection (2), or as the case may be, subsection (4) to the employee.”.
Amendment agreed to.
Section 12, as amended, agreed to.
Chairman: Amendments Nos. 28 and 31 are related to amendment No. 27 and they may be taken together. Is that agreed? Agreed.
Miss M. Wallace: I move amendment No. 27:
In page 11, subsection (3), line 9, to delete “writing” and substitute “the prescribed form”.
The arrangements governing the taking of force majeure leave were further considered when I met recently with IBEC and ICTU. An employee who takes force majeure leave will in each case submit a standard form which will indicate to the employer that the circumstances of the force majeure leave fall within the requirements of section 13(1) of injury to or illness of a family member where the immediate presence of the employee was indispensibly required at the place where that person is. There will be consultations with the employer and employee interests about the precise information on the form and I will prescribe it by statutory instrument in due course. This requirement will represent a strong deterrent against abuse of force majeure leave.
On foot of further consideration we have deleted the requirement to submit a medical certificate. This matter was raised by Senators. The provision of a medical certificate in the context of force majeure leave raises significant ethical and practical difficulties. As Deputies will be aware, concerns were voiced by Senator Henry and others about the wisdom of requiring such certification.
We have contacted the medical profession about the ethical issue of providing a medical certificate to the employer about the illness of a third party who is not in their employment. There may be practical difficulties obtaining a medical certificate in some circumstances and there is a question of cost. An additional consideration is that in some circumstances, for example, in the case of a young child, the illness which necessitates the force majeure leave may not require a doctor’s intervention.
Having consulted widely on the matter we are convinced the requirement for a medical certificate is unworkable and that the strengthened procedure under section 13(3) offers a sensible approach to the issue.
Amendment agreed to.
Miss M. Wallace: I move amendment No. 28:
In page 11, subsection (3), lines 12 and 13, to delete “a statement in summary form of the reasons for the leave” and substitute “a statement of the facts entitling the employee to force majeure leave”.
Amendment agreed to.
Chairman: Amendments Nos. 29 and 30 are related and may be taken together. Is that agreed? Agreed.
Ms McManus: I move amendment No. 29:
In page 11, subsection (4), line 16, to delete “3 days” and substitute “6 days”.
I welcome the deletion of subsection (6) as an important improvement to the Bill. In proposing these amendments I ask the Minister of State to be less miserable about the amount of time being given under this section. A period of five days in any period of 36 consecutive months is very short. The circumstances in which the leave could be required could involve a child in very bad health and there may be great trauma involved. Families can be affected by circumstances we only imagine in our worst nightmares. The limits proposed are very severe.
I do not doubt that employers made cogent arguments to the Minister of State on why leave should be pared down to three days in any period of 12 consecutive months or five days in 36 consecutive months. However, I bet that if something serious happened to a child of any of the employers they would want the flexibility to do what is needed. They would expect to be able to organise their lives to ensure their priorities were being met.
This provision imposes narrow limits. The force majeure leave is a good provision. However, I suspect when the relevant circumstances arise, as women have done for years, people will make all sorts of arrangements to ensure they meet their children’s urgent needs. We should be more generous and understanding in considering the traumas that families can experience.
Miss M. Wallace: We have received strong representations on the Bill. Employers were very concerned that the force majeure leave will be paid leave although we were not directed to legislate for paid leave. There was a strong debate on this matter in the Seanad and Senator Quinn and others expressed concerns from the employers’ point of view that because it will be paid leave, it will become for some employees an automatic addition to their annual leave. However, the leave is designed to be taken only for a crisis.
The Deputy seeks to double the amount of the leave entitlement in the Bill. It should be borne in mind that both parents are entitled to take force majeure leave. We are trying to encourage fathers to participate. If a mother takes three days force majeure leave and must return to work the father can take three days also, making a total of six. The scenario raised in the Seanad was where both parents work in the same company and when a child is sick both apply for their three days thus obliging the company to pay for six days leave. Although the directive does not require that this be paid leave the Government decided that it should be recognised that there can be a crisis in a family. It must be accepted that the leave is for a crisis. A family may need a couple of days to deal with a crisis and make alternative arrangements.
Ms McManus: It would be nice if life was so arranged that we could manage our crises on the basis that they fit in with our work patterns but that is not the way life is.
Miss M. Wallace: Many crisis can be dealt with in an hour not to speak of three days.
Ms McManus: We are talking about three days. Subsection (4) states: “Force majeure leave shall consist of one or more days on which, but for the leave the employee would be working . . . but shall not exceed 3 days in any period of 12 consecutive months”. So we are talking about three days in total.
Miss M. Wallace: For each parent.
Ms McManus: I accept that but in a major crisis usually parents would be with the child and do not necessarily want to be there on a shift basis. Realistically, this is five days in any period of three years.
Miss M. Wallace: How long does a crisis last? That is the issue we have to address. A crisis cannot go on for seven days. A crisis must be dealt with immediately. It cannot be prolonged.
Ms McManus: Clearly, that is what the Minister is saying. The crisis has to be tailored to suit the employer.
Miss M. Wallace: When a crisis occurs one can take force majeure leave. Along with that in most jobs a person is at home for two days in the week, perhaps Saturday and Sunday. The crisis cannot go on forever and this provision is directed to a crisis.
Ms McManus: I will certainly not argue that it go on forever, but situations occur in every family that can be extremely serious and traumatic and to stipulate that one can only have five days in any period of 36 consecutive months is too severe. It is not tailoring the workplace to meet the needs of the family, it is tailoring the needs of the family to match the needs of the workplace. This stipulation is severe and this is being done at the behest of the employers who are well able to argue their case. We have to take into account the totality of needs, not just the needs of Senator Feargal Quinn, who no doubt is a very good and decent employer. Probably the reality is that Senator Feargal Quinn would be more generous than this Bill in circumstances where an employee was in desperate straits. What we have to ensure is that there is a base line to allow for the employers who are not as compassionate, understanding or as close to the needs of family.
Miss M. Wallace: Force majeure leave is not just for parents of small children. For instance if a mother takes ill, her six children may take force majeure leave. Her husband may also avail of this. This leave applies to everybody regardless of whether one is a parent as opposed to parental leave which applies to parents of young children under the age of five years. It is to be used in a crisis.
Ms McManus: I will give an example of a case with which I am dealing where there is a father whose son has committed suicide. His daughter is away on holiday but cannot terminate her holiday because of the small print of the insurance policy which states that if there is a case of suicide she is not covered to come home early. This girl is aged 20 years and her brother was younger. That father has been running around for the past three days like a lunatic trying to get his daughter back. He has a job. He has to make the funeral arrangements and he must deal with his grief. I am not being dramatic about this but this happens to be a case I am dealing with at present.
Miss M. Wallace: That is a case relating to bereavement leave.
Ms McManus: No. It is in relation to trying to get his daughter home. These are the kind of circumstances where the father would normally be able to go through bereavement——
Miss M. Wallace: This daughter is 20 years of age and needs to fly home early.
Ms McManus: I am not citing it as a case that applies here. What I am citing it as, is the kind of circumstances that occur where there is a crisis in a family. Crises in families are usually messy when they are serious. In this instance a standard case of bereavement has been considerably extended in time because of an insurance policy on a holiday.
Miss M. Wallace: It does not relate to the situation we are talking about here.
Ms McManus: I am not saying it does.
Miss M. Wallace: It is not relevant because this section deals with leave for a crisis owing to injury or illness. The Deputy is talking about a different type of crisis involving travelling and bereavement. These categories of crisis have to be kept separate. There are various categories for instance special leave without pay, annual leave and sick leave. This specifically relates to force majeure leave.
Ms McManus: I accept that. I was citing that example not because it is covered by this Bill but to illustrate that crises in families do not fit in very neatly to work patterns. It is an example related to other issues. I apologise for raising it but I wanted to make the point clear.
Chairman: Is the amendment being pressed?
Ms McManus: No.
Amendment, by leave, withdrawn.
Amendment No. 30 not moved.
Miss M. Wallace: I move amendment No. 31:
In page 11, lines 24 to 30, to delete subsection (6).
Amendment agreed to.
Question proposed: “That section 13, as amended, stand part of the Bill.”
Mrs. Barnes: Section 13(2)(6) states “the spouse of the employee with whom the employee is living as husband or wife”. The words “as husband or wife” is a very narrow interpretation of family. It does not include people cohabiting and I would ask the Minister to look at it.
Ms O’Sullivan: There was a problem with subsection (5). It basically states that if an employee is off for any part of the working day, it is considered to be a full day in relation to force majeure leave. Could that subsection be removed or modified in some way. For example if a crisis arose at 4.30 and the employee was due to finish work at 5 o’clock, it should be the next day that is considered for force majeure leave. In other words if it only takes a half an hour or an hour out of the working day it should not be considered a full day. I would ask the Minister to look at this before Report Stage.
Miss M. Wallace: That situation would have to be sorted out between the employer and employee on the spot. Legislation cannot cover individual time constraints. Not everybody works from 9 a.m. to 5 p.m. Some people commence their shift at 8.30 in the evening or perhaps 3 a.m.
Ms O’Sullivan: It is not in the section.
Chairman: There is no amendment relating to it.
Mrs. Barnes: We need to take on board that we finished Second Stage at 10.30 p.m. last night and we are now into Committee Stage and in light of that certain flexibility has to be given.
Chairman: I have given great flexibility.
Question put and agreed to.
Amendment No. 32 not moved.
Sections 14 to 17, inclusive, agreed to.
Chairman: Amendments Nos. 33 and 34 may be discussed together.
Miss M. Wallace: I move amendment No. 33:
In page 14, subsection (5), line 7, to delete “3 months” and substitute “6 months”.
So that the Bill will be consistent with the requirements of other employment equality legislation it is proposed that six months be substituted for three months as the time within which the appeal must be brought.
Ms McManus: I am delighted the Minister of State and I are of the one mind on this. The amendment is welcome.
Amendment agreed to.
Amendment No. 34 not moved.
Section 18, as amended, agreed to.
Miss M. Wallace: I move amendment No. 35:
In page 14, subsection (5), line 43, to delete “’twenty pounds’” and substitute “’£150’” .
Amendment agreed to.
Miss M. Wallace: I move amendment No. 36:
In page 14, subsection (7), line 48, after “Tribunal” to insert “in proceedings under this section.
Amendment agreed to.
Ms O’Sullivan: I move amendment No. 37:
In page 14, subsection (7), line 51, to delete “that offence” and substitute “an offence and shall be liable on conviction on indictment thereof to the penalties applying to perjury”.
This is a technical amendment.
Miss M. Wallace: I accept this amendment .
Ms O’Sullivan: I thank the Minister of State.
Amendment agreed to.
Section 19, as amended, agreed to.
Section 20 agreed to.
Ms O’Sullivan: I move amendment No. 38:
In page 15, subsection (3), lines 28 to 30, to delete “but shall not exceed 20 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed”.
The amendment seeks not to limit the amount of compensation that is available. It is limited in the section to 20 weeks’ remuneration.
Miss M. Wallace: We cannot accept this amendment because the limit which is set here is that contained in the Maternity Protection Act, 1994, and the Adoptive Leave Act, 1995. We are following the other legislation.
Amendment, by leave, withdrawn.
Chairman: Amendments Nos. 39, 40, 41 and 42 form a composite proposal and may be discussed together.
Miss M. Wallace: I move amendment No. 39:
In page 15, subsection (6), line 41, to delete “, a rights commissioner” and substitute “or an appeal under section 19(1), a rights commissioner or the Tribunal”.
Amendment agreed to.
Miss M. Wallace: I move amendment No. 40:
In page 15, subsection (6), line 45, to delete “may, if he or she” and substitute “or the Tribunal, as the case may be, may, if the commissioner or the Tribunal”.
Amendment agreed to.
Miss M. Wallace: I move amendment No. 41:
In page 16, subsection (7), line 2, to delete “, a rights commissioner” and substitute “or an appeal under section 19(1), a rights commissioner or the Tribunal”.
Amendment agreed to.
Miss M. Wallace: I move amendment No. 42:
In page 16, subsection (7), line 5, after “commissioner” to insert “or the Tribunal”.
Amendment agreed to.
Section 21, as amended, agreed to.
Ms O’Sullivan: I move amendment No. 43:
In page 16, subsection (4), line 49, to delete “relevant employer” and substitute “respondent to the application”.
The term “respondent to the application” is the normal terminology that would be used.
Miss M. Wallace: The wording of this section is based on the equivalent provisions applicable to the previous Acts mentioned: the Maternity Protection Act, 1994, and the Adoptive Leave Act, 1995. The term “relevant employer” is clear and unambiguous. I cannot see what purpose is served in making the change proposed.
Proceedings in the Circuit Court on the section may be brought in the county where the employer ordinarily resides, or carries on any profession, business or occupation. The wording we have is the same as in the other two Acts; the Maternity Protection Act, 1994, and the Adoptive Leave Act, 1995.
Ms O’Sullivan: It is not a hugely important issue to me, so I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 22 agreed to.
Sections 23 and 24 agreed to.
Chairman: Amendments Nos. 44 and 45 may be discussed together.
Miss M. Wallace: I move amendment No. 44:
In page 18, after line 47, to insert the following subsection:
“(5) The Employment Equality Act, 1998, is hereby amended by the insertion in section 39, after paragraph (b), of the following paragraph:
’(bb) to provide information to the public on the working of the Parental Leave Act, 1998,’.”
Amendment agreed to.
Section 25, as amended, agreed to.
Sections 26 to 28, inclusive, agreed to.
Ms O’Sullivan: I move amendment No. 45:
In page 20, after line 8, to insert the following new section:
“29.-The Employment Equality Act, 1998, is hereby amended in section 39(c) by the deletion of ’and the Adoptive Leave Act, 1995’ and the substitution therefor of ’the Adoptive Leave Act, 1995, and the Parental Leave Act, 1998,’.”.
Chairman: Is the amendment being pressed?
Ms O’Sullivan: No. I think the Minister of State’s amendment takes in my point.
Amendment, by leave, withdrawn.
Title agreed to.
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