Tuesday, 15 June 2004
Seanad Eireann Debate
An Cathaoirleach: I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to discussion on the amendment. On Report Stage, each amendment must be seconded.
Minister of State at the Department of Finance (Mr. Parlon): I cannot accept the amendment. The advice of Parliamentary Counsel is that it is necessary to include the term “AND TO PROVIDE FOR CONNECTED MATTERS” in the Long Title of the Bill. The purpose of the Bill is to amend the Adoptive Leave Act 1995. However, it also makes amendments to the Unfair Dismissals and Redundancy Payments Acts. The proposed amendment would give rise to an incomplete description of the Bill’s provisions.
I welcome the fact that the Minister has the power to extend the period of adoptive leave. If this power is to be utilised to its best advantage, the Minister should be obliged to review the period from time to time. In this amendment I propose that the Minister should review the period every three years. I trust the Minister of State will accept the amendment.
Mr. Parlon: As indicated on Committee Stage by the Minister for Justice, Equality and Law Reform, Deputy McDowell, the review of statutory periods of leave such as adoptive, maternity or parental leave is a matter for consultation and negotiation by Government with the social partners through the partnership process, where the views of all relevant stakeholders can be taken into consideration. The partnership process should remain as the forum for reviewing adoptive leave entitlements rather than imposing a statutory review every three years or otherwise. The partnership model has well served employers and employees by providing a forum for negotiation and agreement on a wide range of workplace issues including leave entitlements for parents and carers generally. In this context, introducing a statutory provision for a review of the adoptive leave period outside the partnership process would be inappropriate. The amendment would also introduce an inconsistency with similar types of legislation such as carers, maternity and parental leave legislation where there is no statutory provision for periodic review of the duration of leave.
We in the Labour Party have tabled this amendment because we believe that a period of eight weeks is appropriate. I do not understand why for example section 6(1)(b) is necessary. Why not let the period be eight weeks, and leave it at that? It seems petty to insert the conditions contained in that subsection.
Mr. Parlon: I cannot accept this amendment. It would result in granting bereaved adopting fathers a more generous leave entitlement than that of a bereaved natural father. As stated on Committee Stage, the maternity working group considered the periods of maternity leave available and made recommendations to increase both maternity leave and additional maternity leave by four weeks each. These increases were immediately implemented in March 2001 and were simultaneously applied to adoptive leave and additional adoptive leave. The increased leave provisions are also available to bereaved fathers in certain circumstances depending on the date the adoptive mother dies.
I reiterate that the group made no recommendations to increase fathers’ leave in the manner suggested in this amendment. Acceptance of this amendment would not only go beyond the agreed recommendations of the working group but would also break the link with the maternity leave provision and the parity of entitlement between natural and adoptive parents.
We spent much time discussing a similar amendment on Committee Stage. I have put forward a fair amendment which I hope the Minister will be in a position to accept. There is no provision in the Bill to provide adoptive leave to parents prior to the placement of the child, which is discrimination. While accepting the reasons for giving maternity leave to natural mothers and the distinction between natural and adoptive mothers, we must recognise that adoptive parents must spend considerable time and effort trying to secure a child.
As was clear from figures provided last week, a growing number of foreign adoptions are taking place involving adoptive parents from this country and this figure will increase. It would be a great loss if we did not take this opportunity to address the issue of families travelling abroad. We should not ignore the fact that these families must travel abroad, in some cases to faraway countries such as China and countries in South America, to attend meetings and are often obliged to stay in a country for a number of weeks before they get a child. I ask that a couple would be entitled to two weeks off work where they go through this process. In the case of a successful adoption, this would be without loss of pay and in a case where a successful adoption was not concluded, the leave should be without pay.
Mr. Parlon: I reject the amendment. The Adoptive Leave Act 1995 already makes provision for leave prior to placement in the case of a foreign adoption. Section 8 of the 1995 Act provides that in the case of a foreign adoption, an employed adopting mother or sole male adopter may avail of some or all of her eight weeks additional unpaid adoptive leave prior to the placement of the child for familiarisation purposes. Section 11 makes similar provisions for an employed adoptive father in circumstances where the adopting mother dies.
Section 7 of the Bill already provides in the case of both domestic and foreign adoptions for paid time off for employees to attend the pre-adoption classes or meetings which they are obliged to attend as part of the pre-adoption process. It was never intended that this entitlement would extend to overseas meetings and subsection (4), introduced by a Government amendment on Committee Stage, makes this clear. While Senator Terry’s proposed amendment would ensure that an employer would not incur costs where placement did not occur, it strays beyond the agreement made in regard to this matter during consultations with the social partners.
During these consultations, there was no consensus on extending a paid leave entitlement to adoptive parents for time spent abroad as part of the foreign adoption process, which the Minister, Deputy McDowell, argued on Committee Stage would impose an unacceptable cost on employers, particularly small employers. Equally, there was no agreement among the social partners to extend the existing provisions for unpaid time off for familiarisation visits or for meetings with adoptive authorities abroad.
The amendment also introduces an element of uncertainty with respect to the entitlements of employees engaged in foreign adoption as to whether subsection (1) applies to them. The amendment is open to the interpretation that the entitlement of paid time off in subsection (1) would be lost in the event that a placement did not subsequently occur, creating an anomaly between domestic and foreign adopters.
Mr. Parlon: This amendment is rejected. The provision in section 8 of the Bill for termination of additional adoptive leave on the sickness of the adopting parents is consistent with the provisions in section 6 of the Maternity Protection (Amendment) Bill 2003, which implements the recommendations of the maternity working group on this matter. The review group recommends 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. 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.
Section 8 of the Bill provides the employee with an option, if the employer agrees, to terminate unpaid additional adoptive leave in the event of illness and to benefit from payment in respect of sick leave subject to the sick leave arrangements in place. The proposed amendment strays from the agreed recommendations of the working group by removing subsection (4)(b), which requires untaken leave to be forfeit, and runs contrary to section 12(2) of the Sustaining Progress partnership agreement. The agreement states clearly that the Bill would provide for termination of additional adoptive leave in event of illness, subject to the agreement of the employer. To depart from this would be a significant departure from the package of compromises agreed and could damage further agreements of this nature.
We tabled this amendment previously because both sides should be able to agree a date rather than the postponed leave being taken seven days after the child leaves hospital. What if the employer wanted to change that? Why not leave it up to the parties involved to decide when the postponed leave will start?
Mr. Parlon: This amendment is also rejected. The proposed amendment is inconsistent with the recommendation of the maternity working group and gives rise to an anomaly with the provisions of the Maternity Protection (Amendment) Bill.
The working group recommended that provision should be made for the postponement of the maternity leave in the event of hospitalisation of the child, subject to the agreement of the employer, and that the postponed leave should be taken in one continuous bloc when the baby is discharged from hospital. Section 9(2)(d) meets this requirement by providing that the postponed leave should be taken as a continuous period beginning not later than seven days after the child is discharged from hospital. This is identical to the provisions in section 7(4)(c) of the Maternity Protection (Amendment) Bill 2003.
The recommendation of the working group is constructed to meet the needs of an adopting mother by offering her the opportunity to return to work while her child is in hospital and postponing her untaken leave until her child is discharged from hospital, provided the employer agrees. Effectively, in section 9 of the Bill we are putting in place some flexibility for adopting mothers in employment who find themselves in the particularly difficult situation where their child is in hospital. The provision that the untaken leave should be taken within seven days of the child’s discharge from hospital reflects the reality that the adopting mother would, in all probability, wish to take the postponed leave immediately upon the discharge of the child from the hospital for the care of the child at home. In the case of an adopted child, the mother’s presence is more important given the need to re-establish a bond with the child in his or her new family.
Minister of State at the Department of Finance (Mr. Parlon): I welcome the provisions of the Adoptive Leave Bill 2004, which represent a balanced and progressive response to the needs of employed adopting parents. The measures introduced in the Bill will enhance the existing legislative provisions for employed adopting parents by offering them greater employment protection and more flexibility in managing their work and family responsibilities throughout the adoption process.
I wish to express my thanks to Members of the House for their contributions to the debate on the Bill. I am pleased it was possible to accommodate a number of Opposition amendments on Committee Stage, which improved the text of the Bill. As Senators know, the Adoptive Leave Bill is modelled closely on the Maternity Protection (Amendment) Bill 2003, which is further advanced in its passage through the Houses. Consequently, the scope for amendments on this Bill was somewhat limited given the requirement to maintain the links between adoptive and maternity leave and ensure parity of leave entitlements between adopting and natural parents.
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