Neale Richmond (Dublin Rathdown, Fine Gael) | Oireachtas source

I move amendment No. 1:

To delete all words after "That" and substitute the following: "Dáil Éireann resolves that the Organisation of Working Time (Reproductive Health Related Leave) Bill 2021 [Seanad]be deemed to be read a second time this day twelve months, so as to allow sufficient time for the development of Government legislative proposals before the end of 2024, in line with the principles of this Bill, following publication of a research study which has been commissioned and submitted to the Department of Children, Equality, Disability, Integration and Youth.".

At the outset, I make the point to Deputy Nash that it will never be viewed as a burden, nor should it ever be so viewed. I pay tribute to the Labour Party for consistently bringing forward this legislation since it originated in the Seanad under Deputy Bacik. I join her in commending Councillor Alison Gilliland. I was very disappointed to hear Councillor Gilliland will not be seeking re-election. It is not the most parliamentary of language, but she is a good egg. She has been an excellent representative on Dublin City Council, as well as on the European Committee of the Regions on which I served prior to her with Councillor Niall McNelis and others. Just before Christmas, we had a really strong debate on the Bill in the Seanad, with contributions from across the House led by the Labour Party's Senator Marie Sherlock, as well as a particularly insightful intervention from Senator Mark Wall. I acknowledge the importance of those contributions.

I underline the seriousness with which the Government takes this issue. Unfortunately, pregnancy loss is experienced by a significant portion of society. I am at an age where every couple of weeks I get a phone call from friends, family members or upset couples, many of whom are at a stage where they are starting to give up as they do not think this will be for them. They are making that journey through IVF. It is a right, as I stated to Deputy Nash. When you get that phone call or meet the person for a coffee or a drink, the scale of the issue becomes clear.

The point was rightly made that this is something that happened in silence for far too long. It was seen as silent burden that fell solely on the mother. The partner was not expected to be able to show emotion or have a genuine sense of loss to the same extent. I appreciate there are different degrees of loss for a father and a mother or for a non-bearing mother and a child-bearing mother and that must be recognised. It can be particularly difficult for people to share. They must deal with that aftermath alone for too long. It is very sad. It is understandable that pregnancy, trying to conceive and pregnancy loss was a deeply private subject for so long, but I am glad it has changed. It needs to change further and having this debate is a good start in that direction. There is far more movement towards change. There has been a welcome move in society towards greater openness about miscarriage, pregnancy loss, the inability to conceive and the heartbreak it can bring.

4 o’clock

This is an area where we see social media actually playing a good role. We criticise social media, rightly so. I have had my battles on there and have had my battles with the social media companies. However, this is an area where it is forcing people - it could be down to algorithms or whatever else - to be a lot more aware of what is going on, to have that conversation and to be a lot more open. I completely acknowledge that despite this, it is clear that parents who have gone through the experience would benefit absolutely from further supports.

Although there is no provision for the loss of a pregnancy prior to 24 weeks, the Maternity Protection Acts 1994 to 2004 provide for an employee to be entitled to full maternity leave in the case of a stillbirth after 24 weeks. The Paternity Leave and Benefit Act 2016 also provides for paternity leave in this situation. The Sick Leave Act 2022 provides for a statutory sick pay scheme for all employees who are medically certified as unfit for work. From 1 January 2024, this has been increased to five days, and it will rise incrementally to ten days by 2026. It is not the right vehicle but it is something that is there. This point was made appropriately from across the benches. I fully want to acknowledge that those experiencing pregnancy loss and other daily commitments that they have to go through go way beyond what is provided for in the existing legislation. The experience of pregnancy loss is sadly shared by far too many and there is room within our legislative framework to better care for working mothers and fathers who go through a pregnancy loss.

As a society we need to continue encouraging a move away from viewing pregnancy loss as something that must be dealt with in secrecy. Employees should feel that a miscarriage is a loss which they can share with their employer, recognising that they have suffered a bereavement and that they need time to deal with their loss. Reproductive health should also be supported in the workplace, and indeed reproductive rights, and I make that point deliberately. Employees should not feel concerned that an honest conversation about their pregnancy loss or reproductive health challenges will disadvantage them. I am sure that most employers would treat employees dealing with pregnancy loss or reproductive challenges in a sensitive manner, but additional support for employers or employees could be an advantage. As has already been alluded to, the Minister, Deputy O’Gorman, commissioned research to examine how best to support working parents who have suffered pregnancy loss and I will touch on this research a little later on to elaborate on the points made by Deputy Bacik.

The intentions and sentiment behind this Bill are absolutely laudable and I am fully in agreement with them. The Government recognises that this is an issue which should be addressed. However, we have now reached the point to drill down into the details and we have to recognise that this is an extremely complex policy area that requires detailed consideration and assessment in advance of progressing legislation. On this basis, I have moved that the Organisation of Working Time (Reproductive Health Related Leave) Bill 2021, be deemed to be read a Second Time this day 12 months, so as to allow sufficient time for the development of Government legislative proposals, in line with the principles of this Private Members' Bill, before the end of 2024, following publication of a research study which has been commissioned and submitted to the Department of Children, Equality, Disability, Integration and Youth, in accordance with Standing Order 176(1)(i).

I recognise that this may come as a disappointment to many colleagues in the House. I wish to make clear that we understand the importance of progressing proposals in this area. This is not a decision we have come to lightly, rather there are steps we have to take to ensure this is done properly. I hope Deputies will take my genuineness and accept my bona fides. This is something we want to do. We want to do it as soon as possible but we want to do it properly. First, the Bill presents a number of potential regulatory impacts across a range of considerations and these potential impacts require detailed assessment and scrutiny in advance of progressing legislation. Second, a qualitative research study commissioned by the Minister, Deputy O'Gorman, which examined the workplace experiences of people dealing with pregnancy loss before 24 weeks' gestation has only just been completed. When we took this in the Seanad, we had only had eyes on the explanatory memorandum so it is relatively fresh. It is only right that due consideration and analysis of its finding should be carried out in advance of progressing any legislation. Third, and this is more of a technical and logistical point, Government is of the view that the Organisation of Working Time Act is not the appropriate or logical legislative vehicle to provide for the proposed new entitlements.

With regard to my first point on the potential regulatory impacts of the Bill, a range of considerations should be given due regard in advance of progressing legislation in this area. For example, consideration will need to be given to extending this proposed leave to terminations of pregnancy for medical and other reasons. With regard to the reproductive element of the Bill, the legislation will need to provide for a detailed definition of medical terminology and the circumstances in which leave for reproductive purposes would apply. As this Bill proposes to introduce a new form of leave, detailed legislative provisions regarding the circumstances within which the leave entitlement would arise would need to be developed. Any new provisions may result in the requirement to amend existing relating legislation. In addition, the legislation would need to clearly define the circumstances within which sick leave or medical care leave would be a more appropriate form of leave for pregnancy loss or reproductive health interventions. Inconsistencies between the Bill and existing legislation are also apparent. While the Bill proposes leave with pay when a miscarriage occurs before 28 weeks' gestation, existing entitlements to maternity and paternity leave apply to a stillbirth after 24 weeks.

Further potential regulatory impacts would need to be assessed with regard to the employer and there are a number of elements to consider here. The Bill proposes an employee is entitled to leave with pay from his or her employment for 20 days in the case of miscarriage and ten days in the case of reproductive healthcare treatment in any leave year. Therefore, this proposed legislation would place a new and considerable financial requirement on the employer. It is therefore only right that we engage with businesses on this as there has been a great deal of change as has been alluded to. I stand over every single one of those changes. They are the correct thing and we want to see no backsliding on them. We will continue to go further as has been laid out in the programme for Government. However, there is currently no statutory requirement for employers to pay women who are on maternity leave, or those availing of maternity leave following a stillbirth after 24 weeks' gestation. Maternity and paternity benefits are paid by the Department of Social Protection to those who have a certain number of paid PRSI contributions on their social insurance record and who are in insurable employment up to the first day of their maternity or paternity leave. Therefore, placing this new financial responsibility on the employer deviates from current policy under which the State provides maternity and paternity benefits.

I have a good few more points and I do not know if I am going to them in time. If it is okay with those opposite, I will circulate the full extent of the speech and the Minister in summing up will be able to touch on all of them. I will skip ahead to a couple of points that are really pertinent in terms of the direction of travel in this policy area, that is, in relation to the Organisation of Working Time Act. As I have already laid out, we do not believe that this is the appropriate or logical legislative vehicle to provide for the proposed new entitlements. The Act was enacted to provide for the implementation of the European working time directive. As such, it sets out legislation regarding employees’ working time, such as an employee’s maximum working hours, entitlement to minimum rest periods and an entitlement to a minimum period of paid annual leave. The Act was not designed to set out the terms and conditions around the taking of specific forms of leave such as protective leave. The Act only references protective leave arrangements to clarify that they are not to be included in reference periods used to calculate maximum weekly working hours and nightly working hours. It is considered by the Government that discrete stand-alone legislation or an amendment to existing family leave provisions would form a more suitable legal basis for reproductive leave. Additionally, it is considered by the Government that it would be both more logical and appropriate to progress pregnancy loss legislation through stand-alone legislation or an amendment to legislation that already provides for protective leave. Such legislation has expanded in recent years to legislate for what has become known as protective leave entitlements in legislation in respect of maternity leave, paternity leave and adoptive leave.

Again, these are very technical details and it takes away from the real impetus of what is trying to be achieved here this evening. As I am sure colleagues will appreciate, these are the details we have to ensure are correct. I would like to emphasise that the Government understands the importance of progressing proposals in this policy area. We have tabled this motion today in the aim of developing appropriate and fit-for-purpose legislation that is backed by well researched and evidence-based policy which will serve society in the long term. I urge the House to agree to the motion for a timed amendment for 12 months. This will allow time for Government to consider the recently completed qualitative research study and to allow the development of Government policy and legislative proposals, in line with the principles of the Private Members' Bill, before the end of this calendar year.

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