Carer's Leave Bill, 2000: Report Stage (Resumed).

Wednesday, 30 May 2001

Dáil Eireann Debate
Vol. 537 No. 3

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Debate resumed on amendment No. 3:

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt): Information on Tom Kitt  Zoom on Tom Kitt  I share the Ceann Comhairle's words of welcome to our distinguished guests.

[557] I understand from where Deputy Broughan is coming. I am sure he will appreciate however that I do not have the power to deal with the situation. He is seeking to cover situations whereby employees with the agreement of their employers will have taken leave to care for a person requiring full-time care and attention prior to the passing of the Bill and in this regard provide that such leave will be carer's leave for the purposes of the Bill. While it may be desirable that employees in such circumstances would have the protection afforded by the Bill applied to them in respect of leave taken prior to the passing of the Bill I am advised that it would be in breach of natural justice to impose retrospective obligations on employers who would, in fairness, have acted in good faith by allowing their employees to take leave to which there was not a statutory entitlement at the time. If the employee was to be penalised by the employer, for example, by dismissal, he or she would always have access to redress in respect of their contract of employment under the Unfair Dismissals Act, 1977.

I gave the Deputy the figures that have emerged with regard to people availing of this scheme earlier and I stress that what is happening now is by agreement. My difficulty here is that I cannot force or oblige employers to act in a certain way. Clearly, the sooner we get this legislation in place the better and I appreciate the Deputy's co-operation. If there is a particular problem with regard to dismissal there is, as I mentioned, the Unfair Dismissals Act. I understand the Deputy's difficulty but my hands are tied on this and I hope the agreements in place will hold and we get our legislation in place as soon as possible. From here on there will be a compulsion on all concerned to abide by the law.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I have received correspondence from people in this precise situation all round the country and most other Deputies have been inundated with similar requests. This area is of growing concern and it is a unique situation. Again, I go back to the Minister's programme for Government where he made commitments to carers arising out of the relationship that some had with the carers' association and other national bodies that advocate the rights of carers, going back to the late 1980s and early 1990s. My understanding is that there was a commitment to have brought in the legislation required. To qualify for carer's benefit one must meet certain requirements and the necessary legislation for that went through the social welfare system – the Social Welfare Bill, 2000 – and then there was the protection of leave from work legislation which went through the Department of Enterprise, Trade and Employment.

I do not issue caveats in relation to the officials here today because I know how hard they have worked and they have briefed myself and our [558] Fine Gael colleagues very well on this particular legislation. Nonetheless, it is a fact that the Carer's Benefit Bill has been sitting there for almost 18 months but the protective legislation is not there. The job of Government is to make sure things happen. What we need is joined up Government where Departments work closely together. In that ideal world the social welfare part of this legislation, the Social Welfare Bill, 2000, would have cleared the decks for the Carer's Leave Bill to have been brought through the House as quickly as possible this time last year at the latest. Within weeks of the Social Welfare Bill, 2000, going through, this legislation could have been passed. We have had all sorts of legislation moved forward but most people would agree that carers have probably received the least recognition. They are a most heroic group of citizens.

I would still like to put this amendment.

Mr. Perry: Information on John Perry  Zoom on John Perry  I agree on that point. It is relevant that people would be in care without the cover of legislation. It is important that there would be a working relationship with employers but it is a fact that this legislation is very much needed. There are many carers in the country who never get a break and a study published recently showed there is a lack of awareness among carers regarding support services and entitlements. It is important that all the benefits and the entitlements that will follow should be built into this Bill.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I appreciate the opportunity to finally clarify this. I understand the position with regard to people availing of carer's benefit – the total number is over 200 in the country with 51 in Dublin. It is by agreement. I accept that it would be ideal if we could have brought in the Carer's Benefit and the Carer's Leave Bills together. Unfortunately the system does not work as quickly as we would like. There are various reasons for this. Perhaps the Deputies will understand that when they get their opportunity as Ministers, if the occasion arises. We have to deal with the procedures we are given. Workers and employers are agreed and I would be confident that in the majority of cases these agreements would be honoured. I appeal to all concerned to honour them. What we are doing is putting legal strength behind those agreements. My hands are tied with regard to retrospection. I would like to help out but I just cannot introduce retrospective legislation. I do, however, make an appeal to those concerned that the agreements made would be honoured. The numbers are quite small as I mentioned already, 200 for the country and 51 for Dublin.

Amendment put.

[559]

Allen, Bernard.
Barnes, Monica.
Barrett, Seán.
Bell, Michael.
Belton, Louis J.
Boylan, Andrew.
Bradford, Paul.
Broughan, Thomas P.
Browne, John (Carlow-Kilkenny).
Bruton, John.
Bruton, Richard.
Burke, Ulick.
Carey, Donal.
Clune, Deirdre.
Connaughton, Paul.
Cosgrave, Michael.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
Deasy, Austin.
Deenihan, Jimmy.
Dukes, Alan.
Durkan, Bernard.
Enright, Thomas.
Farrelly, John.
Gilmore, Éamon.
Higgins, Michael.
Hogan, Philip.
Howlin, Brendan.
[560] Kenny, Enda.
McCormack, Pádraic.
McDowell, Derek.
McGahon, Brendan.
McGinley, Dinny.
McManus, Liz.
Mitchell, Gay.
Mitchell, Jim.
Mitchell, Olivia.
Moynihan-Cronin, Breeda.
Naughten, Denis.
Neville, Dan.
Noonan, Michael.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Owen, Nora.
Penrose, William.
Perry, John.
Quinn, Ruairí.
Rabbitte, Pat.
Reynolds, Gerard.
Ryan, Seán.
Sargent, Trevor.
Sheehan, Patrick.
Shortall, Róisín.
Stagg, Emmet.
Stanton, David.
Timmins, Billy.
Upton, Mary.
Wall, Jack.


Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ardagh, Seán.
Brady, Johnny.
Brady, Martin.
Brennan, Séamus.
Briscoe, Ben.
Browne, John (Wexford).
Byrne, Hugh.
Callely, Ivor.
Carey, Pat.
Collins, Michael.
Cooper-Flynn, Beverley.
Coughlan, Mary.
Cowen, Brian.
Cullen, Martin.
Daly, Brendan.
Davern, Noel.
de Valera, Síle.
Dempsey, Noel.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Flood, Chris.
Foley, Denis.
Fox, Mildred.
Gildea, Thomas.
Harney, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
Kelleher, Billy.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Michael P.
Kitt, Tom.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
McGuinness, John J.
Martin, Micheál.
Moffatt, Thomas.
Molloy, Robert.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donnell, Liz.
O'Flynn, Noel.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Kennedy, Michael.
O'Malley, Desmond.
Power, Seán.
Roche, Dick.
Ryan, Eoin.
Smith, Brendan.
Smith, Michael.
Treacy, Noel.
Wade, Eddie.
Wallace, Dan.
Walsh, Joe.
Woods, Michael.
Wright, G. V.

[561] Amendment declared lost.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I move amendment No. 4:

In page 8, between lines 27 and 28, to insert the following:

“(2) Notwithstanding subsection (1), the Minister may by regulation allow two employees to share the caring role between them while remaining in the workforce on a part-time basis.”.

This amendment relates to the fact that conditions relating to entitlement to carer's leave do not cover the possibility of more than one person carrying out the caring function. It is common in communities for a number of people to care for an aged or disabled relative. However, it also frequently happens that one member of a family, for historic reasons, because they are the oldest, the youngest or the person who has remained longest at home, is left to carry the whole burden of care, often on a seven days a week, 24 hours a day basis.

One of the key ambitions of the carer's movement is legislation that would encourage all members of an extended family to participate in the care of elderly relatives. I ask the Minister, therefore, to consider accepting this amendment, which would provide for the possibility of two employees sharing the caring role and, if they are employed by different employers, of reaching an agreement on part-time working. In this way, the caring function could be recognised in legislation and carer's benefit could be paid for the period during which the carers were not working.

I saw an interesting report on the 35-hour week in France, which seems to be very successful. It recognises today's much more complex society by allowing people proper respite and time for recreation and family. In that context we need to anticipate future multifaceted ways of working, by sharing jobs and introducing shorter working weeks to facilitate families. The Minister for Social, Community and Family Affairs launched an interesting report on the development of the family section of his Department, which is now recognised as crucial, as a full Department in its own right. I commend the Government for that. It is an achievement for which it deserves recognition. In terms of emphasising the family, it would be a simple step forward in the context of this legislation to allow for the possibility of more than one member of a family sharing the caring function and, if it is approved, to recognise it in allocating carer's benefit and in the protection of carer's leave legislation. In that context I ask the Minister to accept the amendment.

Mr. Perry: Information on John Perry  Zoom on John Perry  That it is a very good point. Patterns of working have changed. Two members of a family may wish to share the responsibility of caring and two different companies may be involved. The entitlement to leave is low. This amendment would allow those people to maintain a job with [562] an income and get an allowance to cover the time spent caring for a family member. The benefit to the State is great if somebody can remain at home and be cared for by family members rather than have to go into a nursing home.

We are extraordinarily lucky that families and relations are prepared to help and to take time off from their paid employment to do so. It should be remembered that the minimum wage will increase to £176 per week so the entitlement on carer's leave will be small. Even if people wish to take carer's leave, it might not be financially viable for them to do so. They might have no choice, however, and this could put them under financial strain so there is huge merit in the suggestion that two members of the family might share the responsibility.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  The issue of sharing the caring was raised by a number of Deputies on Second Stage. Deputy Broughan put down an amendment in this regard on Committee Stage and I said I would consider the issue in detail. I appreciate the reason for the proposal, namely, to take pressure off carers who give up their jobs to look after loved ones in often trying and difficult circumstances.

However, the proposal in section 6(1)(d) mirrors the parallel Department of Social, Community and Family Affairs carer's benefit scheme. Any change permitting two persons to provide the care would cause administrative difficulties for the Department in monitoring possible abuses and for employers generally. Section 6(1)(d) provides that an employee who avails of carer's leave can engage in employment or self-employment in accordance with the regulations made by the Minister for Social, Community and Family Affairs under section 82(b)(iii) of Chapter 11A of Part II of the Social Welfare (Consolidation) Act, 1993. These regulations allow such employees to work for up to ten hours per week.

I cannot go further than this in the Bill. In earlier discussions with the IBEC on the Bill, it asked that this provision be spelt out clearly in the various information leaflets to be issued following enactment of the Bill. My officials have also informed the ICTU of this commitment. We will fulfil that commitment and provide this information. This arrangement provides a suitable compromise for both employees on carer's leave and for their employers who may wish to avail of a valued employee's service on a part-time basis while the employee is on carer's leave.

The advice of the Department of Social, Community and Family Affairs is that the amendment would be difficult to administer. This provision, however, recognises the need for the employee to do some part-time work while on carer's leave. They are allowed to do ten hours such work under the social welfare legislation. It is recognition of the need of the employee to do some work and of the needs of employers who may wish to avail of the employee's services. I presume the employee would make arrangements for the rela[563] tive to be looked after for that period. That is as far as I can go on the amendment.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I welcome the Minister's comments on the possibility of part-time work but I still think a society must respond to the circumstances in which families find themselves. This proposal is an attempt to do that in a family friendly manner and to recognise the reality that many families have experienced. Members participating in this debate have probably experienced circumstances where one sibling might care for an ill parent for a certain length of time, another sibling takes over for a further period and another does the caring at the weekend to give the others a respite. That is the reality of the caring function and the Department of Enterprise, Trade and Employment does not give sufficient recognition to the nature of caring.

I welcome the fact that the Minister has gone so far but I am unhappy that he has not gone the full distance and accepted the amendment.

Amendment put and declared lost.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I move amendment No. 5:

In page 8, between lines 27 and 28, to insert the following:

“(2) Notwithstanding subsection (1), where an employee will not have completed one year's continuous employment with his or her employer on the date of commencement of a period of carer's leave, but has completed 3 months of such employment on the date of commencement of a period of such leave provided for by this subsection, the person shall, subject to this Act, be entitled to carer's leave for a period of 5 weeks for each month of continuous employment that he or she has completed with the employer at the time of the commencement of the leave.”.

We had a lengthy debate on this amendment on Committee Stage. It is one of the key amendments before the House. It seeks to provide a pro rata allocation of carer's leave to a carer where the carer has not served a full 12 months in his or her employment. I based the amendment on the relevant provision in the Parental Leave Act, 1998, which provides that where an employee has not completed one year's continuous employment with his or her employer but has completed three months of such employment, the employee is entitled to parental leave for a period of one week for each month of continuous employment completed with the employer concerned.

The amendment provides for five weeks carer's leave for each month of continuous employment he or she has completed with the employer at the time of the commencement of the leave. The Labour Party believes the provision in the Bill is unduly restrictive. An example of a relevant situation is where a worker has had a lengthy [564] relationship with a company or with a part of the public service and has a good PRSI record. The person might have worked in that body for 15 or 20 years and easily qualifies for carer's benefit in terms of the insurance conditions. However, he or she might have changed jobs, has less than 12 months' service with the new employer and finds that despite his or her excellent insurance record he or she is not eligible for carer's leave. A person might have between nine and 11 months' service but is still not eligible for a portion of the leave.

The legislation is still unduly restrictive in that regard. We should be prepared to allow workers after a three month period to be eligible for a pro rata period of carer's leave. This matter was discussed on Committee Stage but that Stage was somewhat rushed so it is good we will have a little longer today to tease out the remaining points. In the current employment market people are likely to change jobs more often so a situation can arise in a family where somebody suddenly becomes ill and requires full-time care but the prospective carer, despite having an outstanding work and insurance record, could be unable to avail of carer's leave and the protection provided by the Bill.

There is a model available in the Parental Leave Act and in some of the equality legislation. It would be fitting, therefore, to accept this key amendment and provide for a similar pro rata system.

Mr. Perry: Information on John Perry  Zoom on John Perry  There is merit in this amendment. I am an employer. It is essential that there is good co-operation between the employer and the employee. In a case where it is clearly established by medical opinion that care is necessary, the employer should have discretion to permit pro rata leave. It would allow some compassion. I know the Bill is compassionate in many areas. Consideration should be made for the fact that the person would have PRSI contributions from other employment and a satisfactory record of employment prior to commencing his or her current employment. It would be important that there would be provision for discretion regarding the entitlement.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I have looked again at this since Committee Stage. It would not be reasonable to allow employees with less than 12 months' service a pro rata entitlement to carer's leave as provided for under the Parental Leave Act, 1998. The period of parental leave entitlement is a much shorter period. In that case, it is 14 weeks as opposed to 65 weeks for carer's leave. It is not unreasonable, therefore, that an employee should have shown some commitment to an employer in terms of length of service before he or she can claim carer's leave. In that context it is reasonable that the current provision in the Bill involves a 12 month continuous employment requirement, which I stress is similar to the qualifying period contained in much of our other employment rights legislation. When I compare it to other [565] legislation, I am talking about legislation like the Unfair Dismissals Act and other similar legislation.

We discussed this at some length on Committee Stage. I have tried my best to provide for balance in the legislation. It is balanced, if one looks at it in its totality, in favour of the employee. In this case there clearly must be some balance between the rights of the employee and the employer. Therefore we are saying that it is reasonable that there be that commitment of 12 months by the employee to an employer before he or she avails of this. Clearly there is always provision for agreement between an employer and employee in all circumstances.

Mr. Perry: Information on John Perry  Zoom on John Perry  Is there discretion?

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  As regards discretion, when it comes to the law one must have clarity. Therefore there is no grey area with regard to that particular point but there is always provision for agreement. In the cases of people who have availed of this excellent scheme I instanced earlier, as we have seen, people have reached agreements. To be fair to all concerned here, I must stick to my position. Unfortunately, I cannot accept this amendment.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  It is disappointing the Minister did not address one of the kernel points I made, which is that the Department tries to encourage mobility in the workforce. For example, important skilled workers in the IT sector in particular and in areas like chemical engineering tend to change jobs regularly. It is one of those areas where we need to clearly indicate, probably in the Constitution, the absolute rights of carers. It is one area where less important rights are being placed in front of their right in this regard. [566] Clearly we are talking about an emergency arising with a child, an elderly parent or a sibling where the employee, who would have an outstanding insurance record, is immediately plunged into a full-time caring role every minute he or she is not working. In such circumstances this amendment would provide a respite. How often would such a situation arise? It would not be something on which a person would embark without serious cause.

My party leader, Deputy Quinn, introduced a Bill on socio-economic rights. We wanted to provide full protection for the fundamental rights which families and members of society such as carers should enjoy. Indeed, every time I talk to carers, their main request is for full recognition. Sadly in this area the Minister is not prepared to give them full recognition. If he was prepared to do so, he would be prepared to look at the totality of somebody's contribution to the workforce and not let the request for carer's leave hinge on the person's current period of employment.

I hope we will make fundamental efforts over the coming years, perhaps in the next Dáil, to ensure that the role of carers is placed at the heart of the Constitution and not just set out in legislation. The amendment addresses a key point. Perhaps it is one of the two or three most important remaining amendments. For that reason I press the Minister on the issue. I do not think he is recognising two aspects of the matter. First he is not recognising the nature of the busy modern economy, where the workforce is highly mobile and, second, he is not recognising the nature of caring, the fact that emergencies arise and people suddenly find themselves in a different world, providing constant care to a dear relative. I ask the Minister again to accept this amendment.

Amendment put.

Allen, Bernard.
Barnes, Monica.
Barrett, Seán.
Bell, Michael.
Boylan, Andrew.
Bradford, Paul.
Broughan, Thomas P.
Browne, John (Carlow-Kilkenny).
Bruton, John.
Bruton, Richard.
Burke, Ulick.
Clune, Deirdre.
Connaughton, Paul.
Cosgrave, Michael.
Coveney, Simon.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
Deenihan, Jimmy.
Dukes, Alan.
Durkan, Bernard.
Enright, Thomas.
Farrelly, John.
Gilmore, Éamon.
Gregory, Tony.
Hayes, Brian.
Higgins, Michael.
Hogan, Philip.
Howlin, Brendan.
Kenny, Enda.
McCormack, Pádraic.
McDowell, Derek.
McGahon, Brendan.
McGinley, Dinny.
McManus, Liz.
Mitchell, Gay.
Mitchell, Jim.
Mitchell, Olivia.
Moynihan-Cronin, Breeda.
Naughten, Denis.
Neville, Dan.
Noonan, Michael.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Owen, Nora.
Penrose, William.
Perry, John.
Quinn, Ruairí.
Rabbitte, Pat.
Ring, Michael.
Ryan, Seán. [567] Tá–continued
Sheehan, Patrick.
Shortall, Róisín.
Stagg, Emmet.
[568] Stanton, David.
Timmins, Billy.
Upton, Mary.
Wall, Jack.

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ardagh, Seán.
Brady, Johnny.
Brady, Martin.
Brennan, Séamus.
Briscoe, Ben.
Browne, John (Wexford).
Byrne, Hugh.
Callely, Ivor.
Carey, Pat.
Collins, Michael.
Cooper-Flynn, Beverley.
Coughlan, Mary.
Cowen, Brian.
Cullen, Martin.
Daly, Brendan.
Davern, Noel.
de Valera, Síle.
Dempsey, Noel.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Flood, Chris.
Foley, Denis.
Fox, Mildred.
Gildea, Thomas.
Harney, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
Kelleher, Billy.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Michael P.
Kitt, Tom.
Lenihan, Conor.
McCreevy, Charlie.
McGuinness, John J.
Martin, Micheál.
Moffatt, Thomas.
Molloy, Robert.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donnell, Liz.
O'Flynn, Noel.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Kennedy, Michael.
O'Malley, Desmond.
Power, Seán.
Roche, Dick.
Ryan, Eoin.
Smith, Brendan.
Smith, Michael.
Treacy, Noel.
Wallace, Dan.
Walsh, Joe.
Woods, Michael.
Wright, G. V.

Amendment declared lost.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I move amendment No. 6:

In page 9, line 9, to delete “(5) and (6)”and substitute “(4) and (5)”.

This is merely a drafting amendment.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I would like some clarification on this substitution which Deputies may find confusing. Section 7(2) provides that an employee may, while on carer's leave in respect of a relevant person, apply for carer's leave for another person if that person resides with the relevant person. However section 7(5) provides that an employee who is on carer's leave in respect of a relevant person and who is entitled to carer's leave in respect of a second relevant person shall not make another application for carer's leave in the circumstances referred to in subsection (2). These provisions appear to be contradictory. Is the Minister of State clearly indicating that if an employee in receipt of carer's leave applies for carer's leave for a second person who resides with the relevant person he or she will be covered by the provision in regard to the entitlement to carer's leave?

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  The point the Deputy raises relates to the next group of amendments. Amendment No. 6 is a drafting amendment.

Amendment agreed to.

Acting Chairman (Mrs. B. Moynihan-Cronin): Information on Breeda Moynihan-Cronin  Zoom on Breeda Moynihan-Cronin  Amendments Nos. 7, 8 and 9 are related and may be discussed together by agreement. Is that agreed? Agreed.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I move amendment No. 7:

In page 9, line 17, to delete “is entitled to” and substitute “takes”.

Amendments Nos. 7 and 9 are Government amendments of a purely technical nature which are aimed at improving the effectiveness of the Bill. While section 7 was not specifically raised on Committee Stage it was felt, following discussions with the Office of the Parliamentary Counsel, that some redrafting of the text at subsections (4) and (5) was required for the purpose of clarity. Amendment No. 9 will improve the effectiveness of section 7(5) and go some way towards addressing Deputy Broughan's concern on that subsec[569] tion. Accordingly I do not propose to accept his proposed amendment to section 7(5).

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I welcome amendment No. 7 which proposes the substitution of the word “takes” for the words “is entitled to”. This will strengthen the position of workers who take carer's leave. I am not sure the Minister of State has addressed the problem I was attempting to identify in the previous amendment in regard to the need to clearly indicate that carers who apply for carer's leave for a second person will be covered by the provision in section 6 in regard to the entitlement to carer's leave. I am not sure this has been spelt out although I acknowledge that the Department has gone some way towards it. The issue around subsection (2) appears to remain. The relevant person may apply for carer's leave for another person if that person resides with the relevant person. I am not clear whether that person is covered by section 6. Perhaps the Minister will clarify the final position in regard to such a person.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  We have substituted the word “takes” in two areas, in lines 17 and 27. Our position is that this would definitely help the worker's position. It improves the section and provides greater clarity. Our advice from the Parliamentary Counsel to the Government is that this is necessary.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I accept what the Minister has said.

Amendment agreed to.

Amendment No. 8 not moved.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I move amendment No. 9:

In page 9, line 28, to delete “is entitled to” and substitute “takes”.

Amendment agreed to.

Acting Chairman:  Amendment No. 10 arises out of Committee proceedings. Amendments Nos. 11, 17 and 25 are related. Amendment No. 24 is cognate. Amendments Nos. 10, 11, 17, 24 and 25 may be discussed together by agreement. Is that agreed? Agreed.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I move amendment No. 10:

In page 10, line 1, to delete “reasonable” and substitute “objective”.

A brief debate took place on the issue of reasonable grounds on Committee Stage. It is considered in legal terminology that the word “reasonable” has too broad a connotation and that a more specific connotation on the grounds on which carer's leave would be taken would be covered by the word “objective”. A person in a family who urgently needs full-time care would create a situation where the granting of carer's [570] leave would be clear cut. What we sought to do in the amendments was to look for more specific grounds. The term “objective grounds” in a good deal of employee protection legislation has been clearly defined by the European Court of Justice. From that point of view it is probably a broader ground and more protective of employees' rights than simply the use of the word “reasonable”. I am advised that “objective” would be a better connotation in section 8 and also in the other relevant section later in the Bill. It refers specifically to the whole issue of taking leave of less than 13 weeks duration, a matter which was discussed in some detail on Committee Stage.

I refer the Minister to the situation in which families often find themselves. On the last amendment I referred to how an emergency can arise in the case of an elderly parent or a disabled child or sibling where somebody would have to move fast to try to discharge the caring function and to look after the relative. It is important in law that that be indicated in as broad terms as possible. It is relevant to the previous amendment also in that it is an attempt to give further recognition to carers in that it specifies that caring is an unique and fundamental role in society and, indeed, it is the whole background to the Bill.

In regard to some of the amendments, including this one, people are thinking about how the economy and businesses would perform when workers take carer's leave. Organisations such as the Carer's Association, the Limerick Carers and Care Alliance Ireland estimate that possibly £2.5 billion to £3 billion worth of work is done by carers which is unrecognised. Last year the carer's allowance amounted to £50,000 or a little more. I am not sure what it is running at this year. For a tiny proportion of expenditure the State is obtaining ten or 15 times the amount of work from the carers of Ireland.

Although “objective” is only a single word, it has a more precise connotation because it would enable us to look at the broader issues about caring and the kind of issues I have mentioned, including the vital nature of caring to a family, the community and society generally. That would have to be borne in mind in section 8(2) where a person may have to take carer's leave urgently. In that case that would have to be considered. Our legal adviser in the Labour Party, people in business and our trade union colleagues have given me different viewpoints on the word “reasonable” which is a good word but on balance it was considered that “objective” would be a better word in terms of protecting workers' rights. It may sound arcane but it is a precise legal point and it was considered on balance that “objective” might be a better word.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I propose to take amendments Nos. 10, 11, 17, 24 and 25 together as they are all closely related. Deputies will be aware that sections 8(2) and 9(8) were the subject of Government amendments on Committee Stage which involved the insertion of “reasonable [571] grounds” in the text. These were included following representations from ICTU after Second Stage. There was a general consensus that these were welcome amendments as they gave a comfort factor to employees whose employer, before the amendments, could have refused without reason to grant carer's leave of less than 13 weeks duration or to treat the leave as carer's leave.

Since Committee Stage ICTU has requested that “reasonable grounds” be changed to “objective grounds” which has been defined by the European Court of Justice. I have consulted with the Parliamentary Counsel to the Government who has advised that “reasonable grounds” gives greater flexibility to employees. That is our advice. I consider that the word “reasonable” is more appropriate in the context of the employee. Therefore, I do not propose to accept amendments Nos. 10 and 24 and ask Deputy Broughan to accept my reassurance based on my advice.

Amendment No. 11 would not effect any substantive change to the Bill. It is unnecessary as its potential effect has already been achieved by the current text. I do not propose to accept that amendment.

In regard to amendments Nos. 17 and 25, Deputies will recall that section 8(7) and the latter part of section 9(8) were new provisions inserted on Committee Stage by way of Government amendments. However, following further consultation with the Office of the Parliamentary Counsel to the Government since Committee Stage on 11 April 2001 it was felt that the inclusion of these provisions was unnecessary. Referring to disputes in some sections of the Bill and not in others would cause unnecessary confusion. Any dispute arising as a result of section 8(2) or 9(4) respectively will constitute a dispute under section 17 and as such be referable to a rights commissioner. I hope I have clarified those points, the most important of which is whether to use the word “reasonable” or “objective”. My advice is that the word “reasonable” gives greater flexibility and that would be very much in the employee's interest.

Mr. Perry: Information on John Perry  Zoom on John Perry  I agree with the Minister. Reasonable is a good word and leaves scope for considerable discretion. I prefer the word “reasonable” to “objective”.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  Can I hear again the Minister's reasoning for rejecting amendment No. 25?

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  The latter part of section 9(8) contained new provisions inserted on Committee Stage by way of Government amendments. We had further consultation with the Office of the Parliamentary Counsel to the Government and it was felt the inclusion of these provisions was unnecessary. Referring to disputes in some sections of the Bill and not in others would cause unnecessary confusion.

[572]Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I agree with Deputy Perry that “reasonable” is a reasonable word. Arising from this legislation, if court proceedings arose, I fear the conditions under which a carer worked may not be sufficiently taken into account. We felt the word “objective” would narrow this down to specific items, which the carers and their representatives could analyse in greater depth. Because of the nature of caring, it is a word that might be preferable.

Why is the Minister not prepared to allow amendment No. 11? This is a simple amendment, which allows for the case where an employee, having been refused a period of carer's leave, which is less than 13 weeks duration, may refer the matter to a rights commissioner under section 19. On the last day, I welcomed some of the improvements the Minister made in this regard. I also take on board the fundamental point he makes that mentioning the right to appeal to a rights commissioner in every section of the Bill might not be necessary. However, this is an important issue. Somebody faced with an emergency may within hours want to consider the possibility of taking carer's leave. Where such leave is less than 13 weeks duration and is refused, there is no direct indication here that there is any possibility of serious review. I intend to press amendments Nos. 10 and 11.

Question, “That the words proposed to be deleted stand”, put and declared carried.

Amendment declared lost.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I move amendment No. 11:

In page 10, between lines 4 and 5, to insert the following:

“(3) In a case where an employer refuses to permit an employee to take a period of carer's leave which is less than 13 weeks duration, the employee may refer the matter to a rights commissioner under section 19 of this Act.”.

Amendment put and declared lost.

Mr. Perry: Information on John Perry  Zoom on John Perry  I move amendment No. 12:

In page 10, line 8, to delete “6” and substitute “8”.

This was raised before and refers to the provision whereby a person shall not be entitled to commence a further period of carer's leave in respect of the same relevant person until a period of six weeks has elapsed. Even though the whole nature of the Bill is very much user friendly, we are asking that this be increased to eight weeks.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  The purpose of the six weeks gap between periods of carer's leave for the same relevant person is to give employers time to recruit and train replacement staff. An amendment passed on Committee Stage in relation to section 9(2) page 10 line 36 recognises emergency situa[573] tions in relation to giving notice of application for carer's leave. Given the differences of approach between the ICTU and IBEC on the issue, I am satisfied the six weeks requirement strikes the right balance all round for both employers and employees.

The Bill as drafted requires employees to go through the procedures as set down in section 6(5) before obtaining a second period of carer's leave for the same relevant person. The inclusion of the amendment is therefore unnecessary and such a requirement would be likely to be interpreted by employees as being excessively bureaucratic. If employers have concerns regarding whether the relevant person is still in need of full time care and attention, they are of course free to use the provision of section 18. Accordingly, I do not propose to accept amendment No. 12.

Mr. Perry: Information on John Perry  Zoom on John Perry  I will not press the amendment. Given the difficulty of getting and training staff, the difference between six weeks and eight weeks is not huge. The Bill has been drafted with the agreement of employers and employees, so I accept what the Minister says.

Amendment, by leave, withdrawn.

Mr. Perry: Information on John Perry  Zoom on John Perry  I move amendment No. 13:

In page 10, between lines 9 and 10, to insert the following:

“(4) 6 weeks before commencing a second period of the carer's leave the employee shall provide their employer with a signed declaration from the Department of Social, Community and Family Affairs stating that, following investigation, the care recipient is still considered to be a ‘relevant person' under the terms of the Act and thus the employee is eligible to take the next period of leave.”.

It is important that there be a medical certificate on this also.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  The effect of amendment No. 13 would be to require an employee, who has availed of a period of carer's leave for a relevant person to obtain from the Department of Social, Community and Family Affairs a signed declaration stating that the care recipient is still considered to be a relevant person under the terms of the Act and thus the employee is eligible to take the necessary period of leave. The Bill as drafted requires employees to go through the procedure set down in section 6(5) of the Bill before obtaining a second period of carer's leave for the same relevant person. The inclusion of the amendment proposed is therefore unnecessary. Such a requirement would, in any event, be likely to be interpreted by employees as unnecessarily bureaucratic and would lead to suspicion and mistrust between employees and employers. If employers have concerns regarding whether the relevant person is still in need of full-time care [574] and attention, they are free to use section 18 of the Act.

Mr. Perry: Information on John Perry  Zoom on John Perry  I know that the spirit of the Bill is to ensure that carers get their entitlements. Where the system may be open to abuse, it is important to have arrangements in place to prevent that, including provision for medical certification. On the basis of the assurance by the Minister of State that appropriate protection is contained in other sections of the Bill to eliminate the possibility of abuse, I withdraw the amendment.

Amendment, by leave, withdrawn.

Acting Chairman:  Amendment No. 14 is in the name of Deputy Broughan. Amendment No. 15 is an alternative. Nos. 14 and 15 may be discussed together, by agreement.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  I move amendment No. 14:

In page 10, to delete lines 10 to 14 and substitute the following:

“(4) Where an employee has taken carer's leave in respect of a relevant person and that period of carer's leave has terminated–

(a) the employee shall not commence carer's leave in respect of another relevant person until six months has elapsed since the termination of the previous period of carer's leave; or

(b) in exceptional circumstances when another relevant person requires full-time care and atttention prior to the lapse of 6 months, the employee shall be permitted to commence carer's leave in respect of another relevant person when 4 weeks has elapsed since the termination of the previous period of carer's leave.”.

This amendment seeks to delete subsection (4) which states that where the employee has taken carer's leave in respect of the relevant person and the period of carer's leave has terminated, the employee shall not commence carer's leave in respect of another relevant person until a period of six months has elapsed. The amendment retains the essential point but adds paragraph (b) that, in exceptional circumstances when another relevant person requires full-time care and atttention prior to the lapse of six months, the employee shall be permitted to commence carer's leave in respect of another relevant person when four weeks has elapsed since the termination of the previous period of carer's leave.

The key element is the provision for exceptional circumstances. In cases where carers are looking after two elderly parents, one of them may be ill and the other may also become ill. Many of our recognised 17,000 to 18,000 carers could find themselves in those circumstances. This touches on the fundamental caveat of the Labour Party that this Bill does not go far enough [575] to totally embrace the nature of caring in the work system. I spoke earlier of the need to allow for two siblings share the carer's benefit, to share carer's leave and be able to work on a part-time basis, having regard to the nature of caring and the unexpected emergencies that can arise. In a case in my constituency, a person's spouse had a very serious long-term disability, her son had developed a similar disability and now a granddaughter has developed the same disability. Fortunately in this case the Northern Area Health Board of the Eastern Regional Health Authority has provided care and respite for the three relevant persons. However, enormous demands are made in terms of caring in those circumstances and that is why I urge the Minister of State to be more flexible in this regard.

It is the Labour Party's intention that if we are in a position in the next Dáil to influence Government policy, the rights of carers will be one of our six or seven major priorities, including the delivery of necessary constitutional change. We tried to do this earlier through Deputy Quinn's amendment on social and economic rights. It is necessary to set a headline for society in terms of the support which health boards and the health system generally give to carers. In the overall economic context, the State should regard it as a priority to provide the resources to ensure that carers are themselves taken care of. This amendment reflects the Labour Party's objectives in that regard.

Provision should be made for the exceptional circumstances to which I have referred, where another relevant person needs full-time care. The issue calls for a spirit of generosity, while recognising that the business and public sectors have to work efficiently. I can understand why the Minister of State is adhering to his position with regard to the timeframes provided for in the Bill, including the 12 months and six months periods. However, I suggest that we also recognise the rights of workers who want to partake of carer's benefit as full-time carers for an extra short period. I urge the Minister of State to accept this amendment.

Mr. Perry: Information on John Perry  Zoom on John Perry  I wish to refer briefly to amendment No. 15 which is intended to provide that the total number of periods of carer's leave taken by any person shall not exceed 130 weeks. The provisions of this Bill in relation to carers are very much needed. However, from the point of view of a company employing staff, the practicalities must be taken into account. Where a staff member might be on leave for 130 weeks, or over two years, the permanency of entitlement to re-employment needs to be reassessed. The interests of both the carer and the patient who is being cared for have to be considered. We should avoid a situation where an employee would see himself or herself as a permanent carer for the sake of having the security of a job and availing of the caring facility. We must be sure. If it is not prop[576] erly controlled some may look for people for whom to care. They could be permanently in the caring role because they receive the funds. They may prefer this way of life.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  Amendment No. 14 in the name of Deputy Broughan reflects the wish of the ICTU to have the period reduced to four weeks in line with the carer's benefit scheme while amendment No. 12 reflects IBEC's view that it be extended to eight weeks for continuity. I am coming up the middle in proposing six weeks. Section 8(4) of the Bill provides that where an employee took and terminated a period of carer's leave in respect of a relevant person he or she may not commence a period of leave in respect of another relevant person until six months has elapsed since the termination of the leave in respect of the former relevant person. I am not accepting amendment No. 14.

On amendment No. 15, I do not propose to restrict the number of times carer's leave can be taken by individual employees. That would be unreasonable and against the Bill's spirit and intent. It is accepted by all interested parties, including the Deputies present, as being innovative social legislation which allows employees time off work to look after a sick or elderly person at a trying and difficult time. It would not be right to restrict the number of times a worker can take carer's leave. Decisions to take leave will not be taken lightly as the relevant person requiring full-time care and attention will already have been medically assessed by the Department of Social, Community and Family Affairs. Placing restrictions would not facilitate urgent and emergency situations. Accordingly I do not propose to accept the amendment.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  When carer's benefit was first advocated we urged that the figure of 12 months be extended to three years. The Minister, Deputy Dermot Ahern, did not travel far along the road with us but he did come to 65 weeks, the 15 months period. This raises the point of a discussion in which I was involved last night. Like other colleagues, I attended the celebration for the departing director of the Combat Poverty Agency, Mr. Hugh Frazer, to whom I pay tribute. He directed the Combat Poverty Agency for 14 years, from its initial period through three chairpersons and many boards. He developed the NAP strategy and put Ireland at the forefront of EU countries battling poverty. He is taking on a European role. This Friday is the day when the 15 countries must submit their poverty plans to the European Union and it will be Hugh's role to assess them. I pay tribute to his achievement in the public service. The Labour Party was associated with the agency and its developments. Our discussion was about the significant surplus in the social insurance fund in recent years.

Mr. Perry: Information on John Perry  Zoom on John Perry  I accept what the Minister of State says. From the point of view of an employer and [577] employee, it is important to limit the number of times an employee may take carer's leave. I accept however what the Minister of State says about the spirit of the Bill. Operational and business concerns are important also. Parental leave worked out well. The period of six weeks is short but it is the interpretation of the Bill in its spirit which will make the difference. I respect what the Minister of State says.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  The Deputy will appreciate that I brought the figure of six down from 12. The Committee Stage discussions improved the Bill.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  The discussion was about the social insurance fund from which the complementary carer's benefit that runs with this legislation arises. There were significant surpluses of perhaps £600 million or £700 million. Those who work in the third sector of the economy, the social area, believe that the benefits a person receives from the insurance contributions he or she pays are limited. There are three or four basic benefits, although the free schemes are now included. We should be more open to the specific needs of carers and the fact that emergencies can spring on someone forcing him or her to take significant time out of the workforce. In such circumstances, an employer should allow someone to take another period of carer's leave when four weeks have elapsed. That is the nature of caring. Given the resources available in the social insurance fund, we should examine this area.

It must be remembered that no one would take carer's leave on a casual basis. Even with the increases, the payment is just £96 per week, which is not a liveable amount today. This is something that is done when a person desperately needs time off to care for someone.

Question, “That the words proposed to be deleted stand”, put and declared carried.

Amendment declared lost.

Amendment No. 15 not moved.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I move amendment No. 16:

In page 10, to delete lines 19 to 24 and substitute the following:

“(6) The Minister may make regulations in respect of the form in which carer's leave may be taken by any specified class or classes of employees in circumstances where the carer's leave is to be taken in the form referred to in subsection (1)(b).”.

This new subsection was inserted on Committee Stage. Section 8 outlines the restrictions on the ways in which a period or periods of leave may be taken. Section 8(6), as an alternative to the provision in section (3)(5) of the Bill, as initiated, confers the power on the Minister to make regulations in relation to any specified class or classes of employee, setting out the manner in which car[578] er's leave may be taken in a form other than one continuous period of 65 weeks, that is, in the form specified in section (8)(1)(b). Following further consultation with the Office of the Parliamentary Counsel it was decided to redraft the section to make its intention clearer.

Mr. Broughan: Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  The Minister of State is not rolling back. He deleted a section in the original Bill which seemed to allow him to specify circumstances in relation to a particular class or classes of employee. This is a simpler, clearer form but the Minister of State is not taking back what he gave.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.


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