Tuesday, 6 July 2004
Dáil Eireann Debate
An Ceann Comhairle: Amendment No. 1 in the name of Deputy Morgan is out of order as it involves a financial charge on the Revenue. Amendments Nos. 2 to 5, inclusive, are similarly out of order. Amendment No. 6 in the name of Deputy Morgan arises from committee proceedings. Amendment No. 7 is related. Amendments Nos. 6 and 7 may be taken together, by agreement. Is that agreed? Agreed.
Mr. Morgan: I did not think that amendment No. 3 was in that category, but I will stand corrected by the Ceann Comhairle if that is the case. My understanding was that amendment No. 3 did not involve such a charge.
Mr. Morgan: I know and accept that, and I will not argue with the Ceann Comhairle. Standing Orders, particularly regarding charges on the Exchequer, should be changed since there is a carry-on whereby virtually anything one does in amending legislation can involve a potential charge on the Exchequer. That is an over-restrictive Standing Order. However, I do not hold the Ceann Comhairle responsible for it, since I know it is up to Members. Unfortunately, I will have to move on to amendments Nos. 6 and 7.
These two amendments propose to extend the period of additional or unpaid maternity leave from eight weeks to 26. If IBEC were here, its representatives would be jumping up and down and going daft at my amendment. However, my amendment already exists in the Six Counties. That part of Ireland is emerging from more than 30 years of armed conflict and the severe consequences of British actions, which obviously created a very difficult environment for trade, yet business in the area is doing reasonably well. There is no evidence that it is suffering in any way as a consequence of that additional period of unpaid maternity leave. I hope that the Minister of State will find a way to accept the amendment. In the Seanad the Minister stated:
Six months’ paid and a further six months’ unpaid maternity leave would allow working mothers that opportunity. The situation is exacerbated by the serious lack of child care facilities in this State, especially for infants. How can working mothers handle all the pressures and obstacles created by legislation? We have an opportunity to amend this legislation to make it even better. I do not want to be negative about the Bill, the thrust of which I support. I am enthusiastic about getting it into operation so that people can benefit. I look forward to the Minister of State’s response.
Mr. McCormack: I certainly support the amendment. Apart from extending the paid maternity or paternity leave of the parent or parents, which I also support, perhaps the principle might be established that people might take leave in the first year of their child’s life without affecting their employment. We should be able to build a system into the legislation so that a person’s employment is protected if the period of leave is extended, even if it were without pay in the second six months. It is accepted that the first year of a child’s life is the most important for its future. It is essential that the child have a parent available to it full-time in its first 12 months.
Ms B. Moynihan-Cronin: I also support this amendment. Many young mothers are having difficulty in getting crèches and child-minders to take very small babies. Looking after small children is a great responsibility. A majority of mothers are now working, and while this Bill supports that, at eight weeks the child is too small to be given to child-minders. Crèches have difficulty accepting children of that age. IBEC may have a problem with this, but we must unfortunately accept that. IBEC is not elected to this House to devise policy or enact legislation; we are. The Opposition feels that this should be looked at. I do not know whether the Minister of State will accept it. Perhaps he listens to IBEC more than to us. I listen to people on the ground, particularly to young, first-time mothers, who have a difficulty with the eight-week period. I support the amendment.
Minister of State at the Department of Justice, Equality and Law Reform (Mr. O’Dea): I certainly agree with the amendment’s spirit. My difficulty is that the genesis of this legislation was the maternity working group, a social partnership arrangement on which the Government was represented, as were the employers through IBEC. Those whom we are trying to help through this legislation, whose lot we are trying to improve, namely, pregnant working women, were represented by the trade union movement. Naturally, the purpose of the group’s deliberations was to draw up proposals to improve the position of pregnant workers. Representatives of that group were trying to achieve the best improvements that they could, as is their job.
The employers said certain things would cost too much or be too onerous but that they would make concessions in return. Ultimately, a compromise was reached, with the Government acting as referee, as it does in such social partnership talks. I am putting that compromise into legislative form. The main proposal was that paid and unpaid maternity leave periods be extended by four weeks in each case.
The Government moved in the next budget to implement that immediately before it could put the legislation on the Statute Book. This legislation is intended essentially to deal with the other changes and to put legislative form on those initial changes. While I can make minor changes to the Bill with the intention of improving the position of pregnant workers, I cannot make a fundamental change on my own behalf along the lines proposed in Deputy Morgan’s amendment. It is not a question of heeding IBEC more than any other group but of taking an agreement to which there were two parties and being expected to effect a dramatic change unilaterally against one party without its permission. That would be wrong and unfair. Besides, I would have no authority to do so.
The Government was in the same position on later amendments and promised to consult IBEC whose response I will furnish to the House when we reach those amendments. This is not a minor change and I cannot unilaterally introduce it. It would involve a fundamental restructuring of the compromise agreement arrived at in good faith, that we undertook in good faith to put on the Statute Book. No matter how much I might condone the sentiment behind the amendment I cannot accept it.
Mr. Morgan: Perhaps in future a clause should be built into the construction of these negotiations to the effect that any negotiation outcome is subject to the approval of this House as opposed to being rubber-stamped by the Government. This would apply even if a new Government places a different emphasis on these negotiations. There is general consensus across three Opposition parties and measured acceptance by the responsible Minister of State on the purpose of this amendment, yet it cannot be accepted because negotiations around the legislation took place outside this House. If I wish to wield some influence on the organisation of society perhaps I should return to business and try to climb the employers’ representative ladder. That might be more fruitful than standing here debating amendments which, regrettably, I am all too accustomed to seeing rejected. It is most unfortunate that IBEC in particular is able to dance a merry jig over this.
I speak somewhat tongue in cheek because I accept the Minister of State’s point that representatives of all the groups involved were at the table but I cannot accept that a general consensus emerging from the national Parliament is subject to negotiation by a group of people not directly represented here. That is a very dubious approach to conducting our business. I appreciate the need for those negotiations and believe it was laudable to bring those people together to arrive at the most acceptable draft legislation. I do not wish to whinge, gurn or cry unnecessarily about it. The point, however, is legitimate, as made also by the two previous speakers, that general agreement is emerging on a particular amendment yet it cannot be accepted. That is rather unfortunate and I ask the Minister of State to think again.
Mr. McCormack: The Minister of State said he can go part of the way. It might help us if he spelt that out. I am concerned about his statement that negotiations taking place outside this House have more influence than debate within the House. It is a very serious development in any case, not just this one, when parties to an outside agreement tie the hands of the Minister of State who agrees with three Opposition Deputies that there is merit in the amendment.
Mr. O’Dea: The social partnership has no influence on 99.9% of the legislation that goes through the House. Everyone is aware of the benefits this country has derived from social partnership and some parties, which were not initially converts to this process, have recently converted to it — better late than never. What weight would an agreement between Government, employers, trade unions, farmers and other people who make up the social partners have, if any Minister or Minister of State could come in here and overturn it?
Mr. O’Dea: Social partnership would mean nothing if such an agreement could be overturned against one party and in favour of another. It would go down the drain. Deputy McCormack referred to my saying I could go further, but I did not say that. I said I could make certain changes to the recommendations advanced. I have made those changes and the Bill reflects them. I went as far as I could but I cannot go so far as to change unilaterally something that was the subject of a bona fide agreement. It was agreed twice, first when the terms were agreed and then when the Government agreed to introduce legislation based on those terms.
Mr. Morgan: From now on every political candidate who publishes a manifesto at election time should print large and bold at the end “I offer representation subject to the approval of social partnership and various outcomes and even if I win the general agreement of the Dáil I most probably will not be able to make any changes or implement the policies I offer.” It stands Parliament on its head. While the consensus of social partnership is useful, for it to receive the stamp of very little or no change by a Department, to the exclusion of the debate on legislation in the Oireachtas, bodes ill for the future. I am disappointed but there is no sense in holding up the debate because we are going nowhere and we have made our points reasonably well.
This amendment aims to strengthen the position of an employee in regard to additional unpaid maternity leave. It gives the employer a way out if there is “a legitimate operational justification” for refusal of that time. This is a reasonable amendment that should have no major consequences for the employer. It states specifically “unless there is a legitimate operational justification for refusal”. Clearly there is a very strong “out” for the employer.
Amendment No. 11 specifically states “unless there is a legitimate operational justification for refusal”. While seeking extra maternity leave, we have covered the interests of employers who may suffer additional hardship in operational terms if, for example, there was no other employee on hand capable of performing a particular task and an employer was obliged to hire temporary staff to perform it. If this occurred for instance outside of holiday times, businesses might not be under particular pressure and could accommodate this. There is some give and take in the amendment and this would facilitate all sides in the negotiation process. I trust that the Minister of State will accept the amendment.
Mr. McCormack: I support this reasonable amendment. I look forward to what the Minister of State has to say because I presume he may accept it. The amendment would not place either side at any disadvantage because it clearly spells out that employers could refuse to sanction the extra unpaid maternity leave. However, with the agreement of an employer and employee, additional unpaid maternity leave could be sanctioned and the person’s employment would be protected. Discussions took place outside the House during the process of the Bill’s drafting and I am sure the amendment would not run contrary to any of the agreements reached, to which the Minister of State referred.
Ms B. Moynihan-Cronin: I also support the amendment. The minor change it would make would assist employers in terms of facilitating their employees. The majority of employers want to assist their employees, particularly where there is an illness involved. I have not come across any employer who would not support an employee in such circumstances. This is a justified and reasonable amendment.
Mr. O’Dea: This amendment deals with an employee’s right to break her period of maternity leave with the agreement of the employer. When the Bill was initially published, the employee could only do so “at the discretion of the employer”. However, I removed that wording and substituted the phrase “with the agreement of the employer”. That was a substantial change.
The recommendations of the maternity working group are that an employee may transfer from additional maternity leave on to sick leave or postpone additional maternity leave if the employer agrees. Amendments Nos. 8 and 11 are inconsistent with the recommendations of the working group in that they take away the employer’s option to refuse and only allow refusals in situations where there is a legitimate operational justification for such refusals. This introduces a rigidity into the Bill which was not intended by the working group. The spirit of the recommendation which the Bill, in its new form, follows is that the employee and the employer would jointly agree to terminate or postpone the leave in certain circumstances.
Mr. Morgan: I have a feeling the Minister of State is probably well disposed to this amendment but because he is bound by an agreement with people outside the House he cannot accept it. He stated that the amendment imposes a rigidity on the Bill, which is far from the case because it offers employers a legitimate excuse not to reach agreement with an employee if there is a genuine operational reason for not doing so. If such a reason for agreeing a period of leave with an employee does not exist, why would an employer not agree it? It is a straightforward and common-sense amendment and I am surprised that someone in the negotiations did not identify the possibility of including a clause of this nature. If this matter is not catered for in the Bill, I would be concerned that employers might be encouraged by their representative organisations to interpret the provision more rigidly than they, as kind, caring and loving employers, might otherwise wish to do.
Inclusion of the amendment in the Bill would offer the opportunity for reconciliation between the parties. I am not suggesting these parties are always warring and in many instances a friendly and reasonably good working relationship exists. Unfortunately, the Bill lacks that type of incentive to encourage people to co-operate. If the amendment were accepted, such an incentive would be acted upon by many employers and the an opportunity for representative organisations on either the workers’ side or the employers’ side to become involved would be significantly reduced.
Mr. O’Dea: I do not agree that one can impose good industrial relations by law. History lists many democratic governments which tried to do that, with a conspicuous lack of success. It is based on the relationship between an employer and his employees. It is invariably in the interests of an employer to have good relations with his employees.
We have moved from a situation where the matter was at the sole discretion of the employer to one where there must be an agreement between the employer and the employee. If the text of the amendment were accepted, employers who did not want to agree would actively seek out operational reasons to allow them to refuse. This would create the potential for confrontation. I do not believe the amendment would add anything to the Bill. We have gone as far as we can in trying to balance matters between employers and employees. I must reject the amendment.
Mr. Morgan: Matters in the House are becoming somewhat hilarious. Last week there was serious carry-on regarding a number of amendments and it is beginning to happen again. The Minister of State indicated that we cannot have good industrial relations by law. However, he implied that we can have good law through industrial relations by excluding the elected representatives of the people. That is, de facto, what we are discussing. I reject his assertion that we cannot have good industrial relations by law.
Mr. Morgan: I accept that we need negotiations and partnership. However, according to the Minister of State, the consensus among Members of the House must be excluded from these. I reject that notion.
I discussed this matter with the Minister of State on Committee Stage but I felt it was important to again table the amendment. This section deals with the termination of additional maternity leave in the event of sickness of the mother. The latter will only happen in exceptional circumstances and the percentage of women who will avail of this provision is small. I want to include in the section the phrase “until such later date as is agreed with her employer”. This is a sensible amendment. In the event of a mother becoming ill with, for example, post-natal depression, agreement as to how to proceed will have to be reached with the employer. This is a serious issue and we need flexibility. It should be possible for the parties to reach agreement.
As I said, this is a sensible amendment which does not tie anybody into anything. Its intention is to put a proviso in the Bill allowing the parties to agree that the balance of the maternity leave would be taken at a later date. The percentage of people who would avail of this provision would be very small. Does the Minister of State not agree that these are exceptional circumstances and that, in the majority of cases, employers would agree anyway? There will always be one or two employers who would stick rigidly to the guidelines without the flexibility provided by the amendment. However, I do not think very ill mothers would have this opportunity.
Mr. Morgan: I support the amendment which is brief and precise and offers an ever so gentle change to the legislation which would strengthen it. The same is true of many of the Report Stage amendments put forward, in that they are not major amendments but they are very important.
Mr. O’Dea: The maternity working group recommended that in the event of illness, an employee should, subject to the agreement of the employer, be able to transfer from additional maternity leave to sick leave. It further stated that if an employee transfers from additional maternity leave to sick leave, she will forfeit her right to any additional maternity leave not taken at the date of commencement of the sick leave.
In the course of its deliberations on this matter, the working group took into consideration the effect of a transfer from additional maternity leave to sick leave on the entitlement to the balance of the additional leave. The group noted that the European Court of Justice stated in Margaret Boyle and Others v. the Equal Opportunities Commission that in order for a woman on maternity leave to qualify for sick leave, she may be required to terminate the period of supplementary maternity leave granted to her by the employer.
Where the employee terminates additional maternity leave in order to have her absence from work treated in the same manner as any other absence from work due to sickness, she may benefit from payment in respect of sick leave, depending on the sick leave arrangements available under her employment contract, whereas an absence on additional maternity leave does not attract payment. The EU pregnant workers directive prohibits the dismissal of an employee from the beginning of her pregnancy to the end of her maternity leave, save in exceptional circumstances not connected with the employee’s condition. The Maternity Protection Act 1994 extends this protection to the end of the additional maternity leave period. This means that an employee is protected from dismissal in respect of pregnancy-related sick leave from the beginning of the pregnancy to the end of the maternity or additional maternity leave period.
As I indicated on Committee Stage, it is necessary to include in the Bill a mechanism to deal with a situation where an employee falls ill and wishes to benefit, with the employer’s agreement, from sick leave arrangements rather than unpaid additional maternity leave. She must forfeit her right to the additional maternity leave which has not been taken, otherwise, in view of the legal protection in place up to the end of the additional maternity leave, employers would not agree to allow employees split their additional maternity leave due to the risk of potentially extending maternity protection for the duration of a prolonged period of sick leave. The maternity review group clearly recognised the legal consequences of the transfer from additional maternity leave and its recommendation that the leave must be forfeit was constructed accordingly.
Ms B. Moynihan-Cronin: The answer is long and convoluted and I cannot take it all in at the moment. The purpose of the amendment is to give employees and employers an opportunity to negotiate and agree among themselves where that is possible. We are only talking about a small number of people and I do not see why it is such a big issue with the working group and other groups. Some of the women who get into difficulties when they become ill are not even in a position to negotiate for themselves and need somebody to do it on their behalf. They should not be at the loss when they are going through a stressful time. I am disappointed with the Minister of State’s response because, although the amendment is minor, it is important for women who become ill, especially those women who develop postnatal depression.
Mr. McCormack: The amendment is similar to the previous one and offers a way for an employer and employee to agree on something. However, from now on I wish to concentrate on questions about the maternity working group rather than dealing with the amendments as the Minister of State has quoted from the working group in every reply.
Perhaps he would outline for us how often the working group met. Did the group operate on a voluntary basis or was it paid for its work? It appears to have put a great deal of effort into the Bill. The excerpt from the working group read by the Minister of State in his previous contribution was similar in its technicality to that of the Parliamentary Counsel. If the Minister of State could tell us more about it perhaps we would not have any need to discuss the amendments. What is the background to the working group, who was on it, for how long did it meet and how long has it been dealing with the drafting of the Bill? Did it get any thanks for its extensive efforts in arriving at its conclusions which appear to be unchangeable?
Mr. O’Dea: I accept what Deputy Moynihan-Cronin said, the reply does appear somewhat complex. Basically we are leaving the Bill as it is for the protection of women rather than accepting the amendment. The pregnant workers directive provides that an employee who is pregnant cannot be dismissed for any reason until the end of her maternity leave. The 1994 legislation extended that by stating that no pregnant employee could be dismissed for any reason until the end of her additional maternity leave. That means there is absolute protection until the end of additional maternity leave.
That is why the working group recommended that if somebody goes from additional maternity leave on to sick leave, the additional maternity leave would become forfeit because, if provision was there whereby a woman could go on to sick leave, which most women would want to do anyway, and at the end of the sick leave there was a balance, as it were, of additional maternity leave remaining, it would mean that because of the EU directive and the 1994 Act, no employee could be dismissed, no matter how legitimately, by her employer until the end of the additional maternity leave which could be taken in accordance with the terms of the amendment, at some indeterminate time in the future.
If that were the situation, no employer would agree to allow the transfer from additional maternity leave to sick leave in those circumstances. That is the difficulty. The working group made a recommendation to ensure that this could not happen and that is why the legislation is constructed in this way. I realise the amendment is well intentioned but if we accepted it, we would create difficulties which the Deputy might not have appreciated for people who want to avail of it.
Mr. O’Dea: I neglected to respond to Deputy McCormack’s question. The working group was established by the then Minister, Deputy O’Donoghue, in 2001. Its brief was to consider maternity leave for pregnant employees and to make recommendations for improvements in so far as improvements were possible with the agreement of everybody. I will send the Deputy a list of members. The group will report to the Government in due course. As I said to Deputy Morgan earlier, its main recommendation about extending the paid maternity leave by four weeks and the unpaid maternity leave by four weeks was implemented immediately on an ad hoc basis and we did not wait for the legislation. However, the other changes recommended are the subject of this Bill.
This amendment also refers to exceptional circumstances, covering the postponement of maternity leave or additional maternity leave in the event of hospitalisation of a child. While we all welcome this progressive Bill, this subsection is somewhat harsh and places unnecessary restrictions on the rights created by the section. The subsection states: “An employee may make a request under paragraph (a) or (b) of subsection (1) to postpone part of her maternity leave with effect from a date she selects only if the period of maternity leave taken by her on that date is not less than 14 weeks and not less than 4 of those weeks are after the end of the week of confinement.” Unfortunately, the mother cannot decide when the child gets sick or needs to be hospitalised, and some flexibility is needed. A friend of mine has spent the past year in Crumlin hospital and unfortunately had to give up her job. As it is desperately stressful for a family when a baby gets sick, we need flexibility.
Mr. Morgan: I co-authored this amendment. A mother in the middle of maternity leave whose baby is hospitalised has two options, she can sit at home half-demented worrying about the baby, which she will probably do, or if she is fit and well and it is sufficiently late in the maternity leave, she may be able to negotiate a constructive role with her employer to busy herself, thus avoiding using her maternity leave so that when the baby returns form hospital and needs the support of his or her mother more than ever, she can then resume her maternity leave and remain at home with the baby. It is simple and I do not know why an employer would object to this amendment, which would be a laudable improvement to the Bill.
Given the disposition of the Minister in his responses, while starting sympathetically, he refuses to accept any amendments. He carries through with the partnership arrangement that has a remit considerably beyond this House, which unfortunately dominates events in the House. Earlier, a number of my amendments, which proposed to provide for a 26-week period of unpaid leave, were ruled out of order. Such a regime exists north of the Border where the economy in not in the same working order as the economy here and yet they manage to carry this. I am amazed the Minister of State does not see fit to introduce this extended period of unpaid maternity leave. It shows the powerful lobby formed by employers in the State, which is most unfortunate.
Mr. O’Dea: I do not believe the employer group or anybody else would object in principle to this amendment. However, unfortunately, another difficulty exists. In the legislation we introduce we are subject to EU law and the terms of EU directives. The EU pregnant workers directive provides for a continuous period of 14 weeks and does not allow that period to be broken. When implementing EU directives, ample case law reveals that we cannot reduce the level of protection that already exists.
The Maternity (Protection of Employees) Act 1981 provided that a maternity leave period shall not end earlier than four weeks after the end of the expected week of confinement. This is regarded as a protection measure and the advice from the Office of the Attorney General is that if we reduce that period we are effectively reducing the level of protection and are regressing, which we are not entitled to do when implementing EU directives. In view of the comments made on this issue during the passage of the Bill through the Seanad, I undertook to review the matter again, which I did.
However, European Court of Justice case law is categorical on this issue. In the case of Margaret Boyle and others v. the Equal Opportunities Commission, case C-411/ 96, the European Court of Justice stated:
In light of the provisions of the directive and the European Court of Justice case law, there is no discretion to make provision in national legislation for the postponement or splitting of maternity leave at any stage during the first 14 weeks of maternity leave or during the four-week post-confinement period. Consequently, although the amendment is well intentioned, I cannot accept it.
Ms B. Moynihan-Cronin: This is very regrettable. The section of the Bill that I wish to amend states: “An employee may make a request under paragraph (a) or (b) of subsection (1) to postpone part of her maternity leave with effect from a date she selects”. I return to an issue I raised while discussing the previous amendment. This will affect a very small number of people. While I accept that EU law exists, we make our own laws here regardless of whether EU laws exist.
When a child needs to be hospitalised, every attempt must be made to facilitate the mother. She could have other children at home and would be under stress because her child is sick, and would not be thinking about going back to work. Regardless of the recommendations of working groups or partnership, or the existence of EU law, the Minister of State has the power and I urge him to reconsider this matter. We should make every effort to facilitate the mother when a baby is very ill. My amendment will not restrict people in any way and facilitates parties in allowing the balance of the leave to be taken at a later stage. It is very harsh not to look after mothers in such circumstances.
Mr. Morgan: I may have to spend some time in Europe with Mary Lou McDonald MEP to catch up on EU regulations. The Minister is invoking EU directives. However, while EU directives exist on sustainability and CO2 emissions, very little or nothing is happening with those. When EU directives exist, a very good amendment tabled by my colleague, whom I compliment on her wisdom, and me is rejected on the basis of these EU directives. I am undertaking an intensive course on EU directives because it seems they can be acknowledged or ignored at the expediency of Government, and that is unfortunate.
Mr. McCormack: Should a child be hospitalised in the first weeks or months of his or her life, that is a most stressful time for parents, particularly the mother, who should be facilitated in every way possible. If it were ideal for her to go back to work for a number of weeks while the child is hospitalised so that she will be able to resume her maternity leave, when the child is discharged and needs the full-time care and attention of his or her mother, this should be facilitated. We are subject to the opinion of the working group, to EU law, to case law, Article 8, so could we not be subject to common sense? The Minister should be able to accept an amendment such as this. If Deputy Morgan requires help when he studies EU directives, perhaps our MEPs, including Avril Doyle MEP among others, will help him.
Mr. O’Dea: EU directives fall into two categories, those that have not yet been transposed into Irish law and those that have. When an EU directive is transposed into Irish law, we must frame our legislation in light of it, whether we like it, whether we are Euosceptic. We have signed up to that deal and the debate is over and done with. The EU pregnant workers directive has been transposed into Irish law. It was introduced by the European Commission not to punish women or get at them, but in aid of employed pregnant women. By insisting on a continuous period of 14 weeks, that is, a person has a minimum of 14 weeks at home, the EU takes the view that is for the protection of the woman. If we introduced legislation that allowed her to break that period, to return to work after a period of between six and ten weeks, it would lessen the protection that the law gives to that woman.
One can consider it from two points of view, in the circumstances quoted so eloquently by Deputy Moynihan-Cronin, if the woman really wants to go back to work and she feel she is up to it, we can let her off, but the question is whether legally we are lessening the protection, which we are not entitled to do? Are we diminishing the level of protection given by the EU directive, which we are not entitled to do? I might have mixed feelings on that, but I must take the best advise I can. Because the matter has come up for debate on Committee Stage and in the Seanad, we consulted the Office of the Attorney General not once but several times and the consistent advice is that it would represent a lessening of the protection afforded to pregnant women under EU law and therefore we cannot do it. It is as simple as that.
Ms B. Moynihan-Cronin: Let me assure the Minister that I do not wish to lessen the protection of women and I also had a legal opinion on the matter, although I did not get the same legal opinion as the Minister. We had a lengthy discussion on these issues on Committee Stage. I received good legal opinion which supports the measures I tabled to strengthen the rights of the woman. I will press the amendment.
Mr. Morgan: I did not get legal advice on the amendment, but I took the advice of several relatively new mothers on the issue and they were unanimous that the element of flexibility would be more beneficial than the rigidity of the provision as it stands. It is unfortunate that forces beyond this House dictate to us. Perhaps the Minister has an element of justification in terms of the EU directive, but I submit that the application of EU directives is selective.
We are dealing with the same issue here. I presume our arguments will be the same and I will not waste time on it. The effect of the two amendments is to ensure that where an employee is sick during a period of postponed leave, it will be treated as sick leave unless the employee states otherwise. The Minister and I obviously disagree on the issue. I sought legal opinion and the Minister has a legal opinion. My amendments are very reasonable and in no way lessen the rights of women. I wish to hear the Minister’s response to these two amendments. I hope the Minister will accept our amendments for the betterment of women.
Mr. O’Dea: I made a few changes to the recommendation of the working group in so far as I could without upsetting the balance arrived at between the employers and the trade unions, who comprised the two main contracting parties to the working group. I cannot go beyond that and make major unilateral change on one side or the other, which people will not agree with, because our commitment was to implement the terms of that agreement. I have made the point already that we are bound by EU law.
The effect of these amendments would be a reversal of the mechanism in the Bill which puts the employee automatically on to resumed leave when she goes absent due to sickness unless she decides to avail of sick leave and to forfeit
the remaining untaken maternity-additional maternity leave. The Deputy’s amendment would put the mother on to sick leave and would leave the resumed leave available to be taken at some indefinite time in the future before which she may take a prolonged period of sick leave. No employer would be willing to agree to a postponement of leave in the first place, knowing that this level of uncertainty would arise. We are putting in place some flexibility for new mothers in employment who find themselves in the particularly difficult situation where the new baby is in hospital. The amendment would discourage employers from agreeing to exercise the new flexible postponement provisions.
It is also necessary for legal reasons for the employee to choose to take resumed leave or to forfeit it. The pregnant workers directive prohibits the dismissal of an employee from the beginning of her pregnancy to the end of her maternity leave, save in exceptional circumstances not connected with the employee’s condition? The Maternity Protection Act extends this protection to the end of the additional maternity leave period. The European Court of Justice has held in a series of cases that “the dismissal of a female worker on account of pregnancy, or essentially on account of pregnancy, can affect only women and therefore constitutes direct discrimination on grounds of sex”.
An employee is therefore, protected from dismissal in regard to pregnancy-related sick leave from the beginning of the pregnancy to the end of the maternity leave period. Therefore it is necessary to include in the Bill a mechanism to deal with a situation where an employee falls ill after she has returned to work temporarily. She must resume her maternity and-or additional maternity leave as appropriate or forfeit her right to the leave. Otherwise, in view of the legal protection in place up to the end of the additional maternity leave, employers will not allow employees to postpone or split their maternity leave, due to the risk of potentially extending maternity protection for the duration of a prolonged period of sick leave.
Section 7(6) is constructed so that an employee who returns to work temporarily due to the hospitalisation of her child, and who has been absent from work owing to sickness, must, at the time she notifies her employer of her illness in the normal way, also indicate that she is taking sick leave. Otherwise she will automatically be deemed to be on resumed leave. This construction leaves the option with the employee of choosing either resumed leave or sick leave.
As regards the conflicting legal advice to which Deputy Moynihan-Cronin referred, lawyers differ and people take different views as to what the law is. Some day Deputy Moynihan-Cronin may be sitting on this side of the House, on this bench and I hope she is.
Mr. O’Dea: If she is on this side of the House, I hope she is on these benches. Then, if a legal query arises, the advice she will be getting and will be obliged to take will be that of the Attorney General. That is the way the system works.
Ms B. Moynihan-Cronin: I had anticipated the answer I was going to get on this because we had a long discussion on it on Committee Stage. The Minister of State is not for turning, so I will press the amendment.
I will address amendment No. 15 first. This amendment which proposes to delete “the last 2” and substitute “one set of”, would allow the father to attend all of the antenatal classes. For practical purposes, it is highly unlikely that new fathers would attend all of the antenatal classes. However, they should be encouraged to do so. I look forward to what the Minister of State has to say on this.
Amendment No. 14 proposes to delete “(other than the last 3 classes in such a set)”. Why would this be so restricted? This restriction of “(other than the last 3 classes in such a set)” is unnecessary and should be deleted.
Ms B. Moynihan-Cronin: Amendment No. 14 has to do with entitlement to time off from work to attend antenatal classes. We had a discussion about this on Committee Stage. The Minister of State said that my amendment was not required because these classes are normally held during the one-month period before confinement when maternity leave has actually kicked in. I agree with that.
Logically, the Minister of State should have no difficulty in accepting my amendment which provides for the right to leave for the last three classes. Let us take, for instance, a situation where the last class was held before the employee took her maternity leave. There could then be a case where this would not be allowed. The Bill provides that women can now work longer before their confinement. It is possible that an expectant mother could be taking one of the last three classes before the maternity leave kicked in. That is my worry in that there may not be legal entitlement for her, in that event, to attend her classes. Obviously, in the majority of cases the classes are taken in the last number of weeks, when the employee has finished work. That is not to rule out cases where expectant mothers would still be working and wanted to attend antenatal classes. I want to ensure that they get their time off in such cases.
Mr. O’Dea: The recommendation of the maternity working group was that provision should be made in legislation or in regulations for paid time off for mothers to attend one complete set of antenatal classes and that at least three of the classes are to be taken during the pre-confinement maternity leave period.
As regards fathers, the working group recommended that provision be made in legislation for paid time-off to attend to antenatal classes immediately prior to the birth. As I stated on Committee Stage, women on their first pregnancy are encouraged to attend a complete set of antenatal classes, which typically consist of six to eight classes, of two to three hours duration each. The current position is that employees are not entitled to any paid time off to attend antenatal classes. Employers’ representatives on the working group agreed to a number of recommendations which have a direct cost implication for them, including this one.
The compromise reached was that employers would pay employees for time off to attend antenatal classes, except for the last three. Time off to attend the last three classes, some of which may be taken during the pre-confinement maternity leave period, will be at the employee’s own expense unless the employer agrees otherwise, which is often the case in any event.
On Committee Stage I advised that the provisions as regards time off for attendance at antenatal classes were the result of compromise reached on this issue by members of the working group. As a consequence I could not accept an amendment which would unilaterally impose additional costs on employers.
Deputies may recall that I undertook to consult further with the employers’ representatives on the maternity working group and to report to this House on the matter. This consultation has since taken place and the employers’ representatives have indicated that they will not agree to change the conclusion of the working group on the review and improvement of the maternity protection legislation. They stated that concessions were made by all the parties concerned in an effort to reach agreement on a package of amendments. Following difficult discussions, agreement was reached on most issues and the employers’ representatives are not prepared to make any further concessions to that which was agreed on by all the parties. For those reasons I am not in a position to accept amendments Nos. 14 and 15.
Ms B. Moynihan-Cronin: Perhaps the Minister of State will answer a question. Let us suppose, for example, that the third last class is held before the employee takes her maternity leave. Am I correct in saying that she would not then have a right to attend that class?
Mr. O’Dea: My understanding is that the employer agrees in the vast majority of cases. I know the Deputy may say there is a difference as to whether this is enshrined in law or not. In the vast majority of cases the employer agrees anyway. As I undertook on Committee Stage to go back to IBEC on this issue, we discussed it with its representatives at some length. They insisted that the terms of the agreement were clear about the last three antenatal classes, regardless of when they are taken. It is envisaged they will be taken after the maternity leave kicks in, as the Deputy says. Even if one of them falls outside that period it means that the employee does not have entitlement to paid time off to attend it.
Mr. Morgan: I am glad to hear the Minister of State quoting some of his comments on Committee Stage because I want to refer to what he said in the Seanad on Second Stage during the debate on this Bill. He said the justification for excluding the last three classes was related to the cost to employers. That was the position agreed with employers’ representatives. That is peculiar because clearly the position of the Minister of the State is to put the cost to the employer before the health and safety of the pregnant employee.
It is completely irrefutable that it is the Minister of State’s position. It is hardly a laudable health and safety position for any agency of the State to adopt. Surely the health and safety of pregnant employees at such a late stage of pregnancy should be given more weight in the Minister of State’s consideration of this issue.
When we started our consideration of the Bill, the Minister of State was reasonably sympathetic to some of the amendments. As we proceed further, however, he is digging further and further into the trenches with the employers as opposed to the union representatives. He does not seem to be considering the health and safety issues associated with pregnant employees, particularly the last three ante-natal classes. What could be more important for the health and safety of a pregnant woman and the welfare of her baby or babies? Surely it is a case of the cost to employers being put first, which is wrong.
The amendment before the House is particularly important for low-paid workers, who may choose not to attend the last three classes. If they have not started maternity leave at that stage, they may be economically forced to remain at work rather than taking time off to attend classes. In other words, they will lose money if they have to take time off work unpaid to attend the last three classes. This is one of the major amendments to be moved this evening. I do not doubt the other amendments would have improved the legislation, but there will be serious consequences for pregnant employees if this amendment is not accepted.
Mr. McCormack: Amendments Nos. 14 and 15, respectively, deal with the right of the mother and father to attend ante-natal classes. It seems strange that the Minister of State cannot accept this amendment. His logic for not accepting the amendment is also strange. One should compare the possible cost of this proposal to employers with the benefits to parents of attending the maximum number of ante-natal classes. The long-term benefits of allowing parents to attend the maximum number of classes will be far greater than any potential loss of a few hours, or possibly a day, to the employer. The long-term cost to the State of the Minister of State’s failure to accept the amendments will be far greater than the cost of accepting the amendments. I do not know whether the greatest obstacle we face in trying to have our amendments accepted is the working group or the Minister of State — I am beginning to think the greatest obstacle is the working group.
Mr. O’Dea: Deputy Morgan spoke about people who, for economic reasons, want to work for as long as they can before they take maternity leave. He will be aware that another section of the Bill makes it compulsory to take maternity leave at least two weeks — it used to be four weeks — before confinement.
Mr. Morgan: I agree with the Minister of State’s comment about employees who conspire with their doctors to alternate that. The Minister of State made a valid point in that regard. We all know that is happening because there is not enough maternity leave afterwards. I agree entirely with the Minister of State’s comments.
Mr. O’Dea: I am simply putting in legislative form an agreement that was reached between employers and trade unions. The trade unions accepted the deal and signed off on it. I did not sit down with the employers to agree this. The trade unions which represent pregnant workers signed off on it.
Mr. O’Dea: So do I. The agreement is now in place. My brief as Minister of State is to put the agreement in legislative form, and that is what I am doing. The agreement came into existence before I took up this job and the unions signed off on it.
Ms B. Moynihan-Cronin: The Minister of State said that women work until two weeks before the birth of their child. I understand that classes are held once each week so the third last class will be held while women are working, in some instances. I am disappointed the Bill will not affect the professional classes who can well afford to take time off. Those who need the money will be affected by the Bill, unfortunately. I am disappointed the Minister of State could not see that. I will press the amendment.
Mr. Morgan: The Minister of State almost admonished us for not accepting a Bill that had been agreed by trade unionists and employers. All of us on the Opposition benches, as well as the Minister of State and his party, have been elected by people from such categories. We have to try to improve the lot of such people by means of legislation because we have a representational role. I do not accept for a moment that pregnant working people make representations exclusively to trade unions, just as I do not accept that the representational rights of employers are through their various organisations. We have howled loudly all evening since this debate commenced, but we are not being listened to. The Bill was a done deal, in effect, long before it came to the House. The Minister of State had sympathy for certain amendments in the beginning, but we have gone steadily downhill as the debate has progressed. It is most unfortunate and regrettable. I felt obliged to respond to the Minister of State’s remarks.
The proposed amending section 15B(2) is unnecessary jargon. The Bill does not oblige employers to provide facilities for breast-feeding mothers. If such a provision was included, it would not be unconstitutional. The judgment on the Employment Equality Act 1998 does not necessarily mean that facilities should be required by 50% of the population. The deletion of this section, which gives employers an opt-out, would be to the betterment of employees. It states that “an employer shall not be required to provide facilities for breastfeeding in the workplace if the provision of such facilities would give rise to a cost, other than a nominal cost, to the employer”. Employers will know that they are not obliged to provide the facilities which are needed by mothers to breast-feed their children if they can argue that they will cost a certain amount of money. We should delete this section of the Bill.
Mr. Morgan: I thought one of the intentions of the Bill was to facilitate working mothers who wish to breast-feed. What does this section do for mothers who wish to breast-feed? Experts in the field, including midwives, etc., encourage women to breast-feed. We are seeking to amend a section of the Bill which would facilitate those mothers to breast-feed in the workplace. Perhaps in the course of his reply the Minister of State would elaborate on the term “nominal cost” because I do not see a qualification of it in the Bill.
Mr. McCormack: I support this amendment. Breast-feeding facilities should be made available, irrespective of the cost. Employers’ costs should not come into this. I do not know what “nominal cost” means. It would appear to be quite easy to make a room or other space available to facilitate women to breast-feed. Is such a facility not available in this House? We did not consider the cost in that case. I cannot understand why any reasonable employer would not make such a facility available to facilitate a mother to breast-feed her baby.
Ms B. Moynihan-Cronin: No. Deputy Morgan asked that question. Why insert this section in the Bill? The Minister of State is giving the employer an opt-out in terms of the provision of a facility for breast-feeding mothers?
Mr. O’Dea: If the employer cannot provide those facilities because it would involve more than the nominal cost, the employer is obliged to allow the employee time off without deduction of pay to avail of the facilities.
I have been hearing all night that I can ignore blithely an agreement reached by others, which I have undertaken to legislate for here, and that if I can do that I can ignore European law as if we were not part of Europe. Now Members are telling me I can ignore the Supreme Court because it is a Supreme Court decision that puts that limitation on us. The Supreme Court has decided that social costs cannot be imposed on the private sector if they involve more than nominal cost. That is the reason we are using this terminology here.
Mr. O’Dea: I am coming to that. There is no obligation placed on employers to provide facilities which would facilitate employees in breast-feeding in the workplace if subsection (2) is deleted. I am advised subsection (2) puts that obligation on them provided it does not involve more than nominal cost.
Subsection (2) obliges the employer to provide facilities if he or she opts to allow the employee time off to breast-feed in the workplace, instead of reduced hours, unless this imposes greater than nominal cost. This is a real entitlement, particularly when account is taken of the interpretation equality officers have applied to cases involving nominal cost on the disability ground under the Employment Equality Act 1998. The following are some specific examples of decisions where nominal cost was a consideration.
In the case of Irish Commercial (Sales) Limited v. Gerard Smith, ED/01/40 — determination No. 026, the Labour Court found that the claimant was dismissed because of his hearing disability and that the employer did not do all that was reasonable to provide special treatment or facilities for the claimant. A specialised headset was available at a cost of €450. The court did not accept that €450 was more than a nominal cost and awarded compensation to the employee for unfair dismissal in the amount of €3,000.
In the case of An Employee v. a Local Authority, DEC-E2002-004, the meaning of the nominal cost limit to reasonable accommodation was considered by an ODEI equality officer. The decision concerned negative assessments of a worker with some residual brain damage who was newly employed in a clerical post. An expert occupational assessment found that the complainant had good potential for clerical work but might take longer than usual to get accustomed to new processes or work organisation.
The equality officer concluded that the complainant would have been fit to do the job with reasonable accommodation. The respondent argued that the costs of retaining an under-performing employee were infinitely greater than nominal. The equality officer held that on the available evidence the difficulties could have been solved by obtaining an expert vocational assessment and providing a professional job coach for a period of three months.
The equality officer considered the Supreme Court judgment in regard to nominal cost and held that what was nominal must depend on the size and resources of the employer, whether in the public or private sector. Having noted the availability of financial support under the employment support scheme for this sort of outlay, the equality officer concluded that the cost of such facilities could not be considered as anything other than nominal to a large public sector organisation. In the circumstances he awarded the complainant €15,000 compensation.
In the case of Bowes v. Southern Fisheries, EE 2002/225, an ODEI equality officer found that the respondent had discriminated against the complainant in terms of section 16 of the Employment Equality Act 1998 when it failed to fit hand controls to a fisheries protection vehicle which would have allowed the complainant, who was diagnosed with multiple sclerosis, to drive in the course of his duties as a fisheries officer. The estimated cost of fitting the controls was €400 and the vehicle could still be used in the normal way by a person without a disability. By failing to fit hand controls the respondent contributed to the complainant’s stress levels and complaints about safety. The equality officer ordered the respondent to pay the complainant the sum of €10,000 for stress suffered as a result of the discrimination.
I would remind Deputies that where an employer does not provide facilities for breast-feeding in the workplace, for example, to avoid costs in excess of a nominal cost, the employer will be required to agree to a reduction of working hours with the employee.
Mr. Morgan: We appear to be at the stage where every employee and employer should be walking about with a senior counsel by their side. That is because some of these regulations are over complex. We have a perfect example of that in this Bill. I did not know what a nominal cost was until I heard the Minister of State, clearly with the assistance of research from his Department, read out a lengthy citation from the Supreme Court or the High Court. Which court was it?
Mr. Morgan: That is one of the down sides of complex legislation but we do not need complex legislation. However, the term “nominal cost” was a mystery to me until the Minister of State elaborated on it.
Mr. Morgan: Having heard the elaboration I believe there is some justification for a nominal cost but it is a dangerous term because employers could use it as an out. The thrust of what the Minister of State is saying is that the bigger the employer, the bigger the nominal cost allowances that are built into the Bill.
However, for practical purposes we know that a small room, if it is sufficiently clean and hygienic and in a reasonable area of the factory or working environment, can be put aside as a breast-feeding facility for employees. I am somewhat concerned that the term “nominal cost” may provide an out for some of those people who, for reasons of convenience in terms of their operation, may decide not to bother with it. We all know there is reasonable precedent for those people to pursue their employers and probably win but how do we communicate that to the wider community? In any event, I accept that the Minister of State’s comments have merit in this case.
Ms B. Moynihan-Cronin: I now understand the nominal cost issue but we will agree to disagree. Employers must be encouraged to provide facilities for breast-feeding mothers. In some cases, it may not be practical for a mother to leave a place of employment to feed her baby. Employers may not care as they are paying the woman but also giving her time off. Large factories in industrial estates may not contain a place for a woman to breast-feed her child. Mothers are not looking for palatial surroundings but somewhere clean and private to feed the baby. I am concerned that employers could opt out of providing a facility leaving the mother with nowhere to go.
Mr. O’Dea: The Supreme Court came up with the phrase “nominal cost”. In the equality legislation, attempts have been made to define it by reference to some criteria. However, it depends on each individual case. Legislation cannot be written for every possible eventuality. As the Deputy pointed out, some matters are clear from precedents. It depends on the size of the enterprise and resources available to the employer. Other provisions have been included in the equality legislation such as public funds being made available to help in the provision of facilities for people with disabilities, etc. From the precedents, the Labour Court and employment equality officers interpret this liberally.
Deputy Breeda Moynihan-Cronin is arguing that the employer should be obliged to provide it if he cannot establish nominal costs. It is only in the event of that being established that the woman has to go elsewhere. I am advised this is the case from the interpretation of the legislation as drafted. However, if this assists, as it seems to be couched in the negative, I will re-examine that provision between now and Report Stage in the Seanad.
An Ceann Comhairle: Deputy Morgan has spoken twice on the amendment. The provision on Report Stage is that the mover of the amendment is entitled to three contributions — in this case Deputy Breeda Moynihan-Cronin.
Mr. Morgan: Will an awareness programme or information leaflet be produced on this complex situation? I agree with Deputy Breeda Moynihan-Cronin that it is essential that discrete and hygienic facilities are made available for breast-feeding mothers. If that can be communicated to employers and employees, it will solve the intent of this amendment.
From the wording of the Bill, I understand that if a woman dies 15 weeks after giving birth, the father of the baby is entitled to one week’s leave? However, if she dies 17 weeks after giving birth, the father will get the full seven weeks. Is this correct?
Ms B. Moynihan-Cronin: The way it is worded is confusing and it does not clarify the entitlements. I understand that if the mother died 15 weeks after giving birth that the father would receive only one week’s leave when in fact it is nine week’s leave. Is it seven or eight weeks’ unpaid leave if she died 17 weeks after giving birth?
Mr. O’Dea: I am advised that if the mother dies one week before the paid maternity leave expires, the husband is entitled to the one week’s paid leave plus the eight weeks’ unpaid leave. However, if the mother dies one week into the additional maternity leave, the husband is entitled to the balance of the seven weeks’ unpaid leave. I will re-examine it before the Bill is returned to the Seanad.
Ms B. Moynihan-Cronin: What is wrong with giving the father eight weeks’ paid leave? It seems unfair that he has the difficulty of losing his wife after childbirth and is obliged to take eight weeks off work without pay.
Mr. O’Dea: This issue came up on Committee Stage and I agree with the Deputy that, on the face of it, it seems harsh. After Committee Stage, I went back to IBEC on this issue but it said it wanted to leave the provision as it was. I want to be absolutely sure of the interpretation I have given the Deputy.
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