Frank Fahey (Galway West, Fianna Fail)

The Parental Leave (Amendment) Bill 2004 amends the Parental Leave Act 1998 to implement a Government commitment in the Sustaining Progress social partnership agreement. This commitment is to strengthen the parental leave scheme in line with the agreed recommendations of the social partners arising from the working group on the review and improvement of the Parental Leave Act 1998.

The Parental Leave Act transposed the Parental Leave Directive 94/34/EC into Irish law and came into force on 3 December 1998. The key objectives of the directive are the reconciliation of work and family life and the promotion of equal opportunities between men and women. The directive, which was adopted in June 1996, incorporates a framework agreement negotiated between the social partners at EU level. This framework set the broad parameters for parental leave but left much to the discretion and interpretation of member states.

The directive provides that a minimum of three months leave should be available to men and women workers until a child reaches a given age up to eight years to be defined by member states. This leave is distinct from maternity leave. The directive provides that the leave should, in principle, be non-transferable between parents. Employees must be guaranteed a right to return to work and protected against dismissal. Provided the minimum requirements of the directive are met, it is left to member states to determine issues such as whether leave is paid or unpaid, what pattern of leave is to be allowed, the maximum age of the child and matters relating to social security.

In addition to providing for parental leave, the directive provides that workers must be given the right to force majeure leave, that is, time off for family crises resulting from illness or accident. Again, the directive gives member states discretion in developing the details of force majeure leave.

The Parental Leave Act provides an individual and non-transferable entitlement to parents to 14 weeks unpaid leave from work per child to take care of young children. The leave must be taken before the child reaches five years of age, except in certain circumstances in the case of an adopted child. The Act also provides an entitlement to limited paid force majeure leave. This is leave necessary for urgent family reasons owing to the injury or illness of an immediate family member in circumstances where the presence of the employee at the place where the family is ill or injured is indispensable. During an absence of force majeure leave the employee is regarded as being in the employment of the employer and retains all his or her employment rights, including payment of salary.

In accordance with section 28 of the Parental Leave Act 1998 and a commitment in the Programme for Prosperity and Fairness, a working group was established in 2001 to review the operation of the Act. The working group was chaired by the Department of Justice, Equality and Law Reform and included representatives from the Irish Congress of Trade Unions, the Irish Business and Employers Confederation, the National Women's Council of Ireland, representing the community and voluntary pillar, the Irish Co-operative Organisation Society Limited, representing the farming pillar, the Departments of Finance, Enterprise, Trade and Employment and Social and Family Affairs and the Equality Authority. The report of the working group was published in April 2002 and is available on the Department's website.

As part of the review, research was commissioned by the working group into the uptake of parental and force majeure leave. The research was conducted by MORI MRC, which was selected after a competitive tendering process. The research was based on a sample of 655 employers, representing more than 67,000 employees. Almost 7% of the labour force were eligible for parental leave in 2001 and approximately 20% of eligible employees were estimated to have taken parental leave, with women accounting for the largest share at 84%. Overall, 2% of employees took force majeure leave. As with parental leave, uptake of force majeure leave was higher among women.

The working group also identified a need to conduct research to ascertain the attitudes of employees, employers and trade union representatives to parental and force majeure leave. Newmarket Consulting, which was commissioned by the working group, carried out 25 case studies in Irish organisations in the public and private sectors to gauge attitudes to parental and force majeure leave provisions. The research found that overall awareness levels of the provisions of the 1998 Act were high among employees and employers. Of the 71 employees surveyed for the purpose of case studies, 20% had availed of parental leave, of which 83% were female. Employees rated spending more quality time with their children or tending to their children's needs as the biggest advantage in taking parental leave, while the biggest disadvantage was the lack of payment. The research found that employers considered that the biggest advantage of parental leave to them came from happier, more contented employees. Further details of both research projects can be found in the report of the working group.

In addition to the research, the working group received presentations from the Department of Health and Children, the National Disability Authority, the Equality Authority, the Rights Commissioners and the Employment Appeals Tribunal. Each of these presentations is documented in the report of the working group.

The parental leave working group identified 18 issues for consideration in the course of the review. They included paid parental leave, paternity leave, duration and manner in which leave may be taken, age limits, broadening entitlement and several issues around force majeure leave. The group reached consensus on a number of these issues and made ten agreed recommendations. The more important of these are to increase the maximum age limit of an eligible child to eight years or to 16 years in the case of a child with a disability; to broaden the entitlement to include persons acting in loco parentis of an eligible child; to introduce a statutory entitlement to take the 14 weeks parental leave in separate blocks of a minimum of six continuous weeks; and to allow an employee who is unable to care for a child on becoming ill while on or about to commence parental leave to suspend the period of parental leave.

The group did not reach consensus on a number of issues, including paid parental leave, paid paternity leave and increased duration of parental leave. The Government intends to respect the partnership process by implementing only those recommendations on which both sides of social partnership are agreed.

The 2002 An Agreed Programme for Government included a commitment to improve the parental leave scheme in line with the recommendations of the social partners. This commitment was fleshed out in the 2003-05 Sustaining Progress partnership agreement whereby each element of the agreed parental leave recommendations of the social partners was incorporated into a package of workplace legislation, codes and programmes to be implemented during the course of the partnership agreement. The mid-term review of Sustaining Progress contracted the Government to have the Parental Leave Bill enacted by the summer of 2005. I am confident this deadline will be met.

Implementation of the majority of the agreed recommendations requires amendment of the existing legislation. These amendments will be implemented through the enactment of this Bill. The Bill will significantly improve the existing parental leave scheme by offering working parents greater flexibility in how they choose to avail of their statutory entitlement. It will bring into effect important changes to the existing legislation which represent a progressive response by Government to the changing face of family life in modern Ireland.

I will briefly outline some of the key elements of the Bill. Under the existing scheme, parental leave is available until a child's fifth birthday. The House discussed the upper limit in some depth when section 6 of the 1998 Act was considered. My predecessors took the view that the age of five years was the correct upper age limit within the range of eight years stipulated by the Parental Leave Directive. In 1998, Senators were divided on this with some arguing for three years, others accepting five years by which time children have started school while some maintaining that the upper age limit of eight years should have been provided.

The working group agreed on moving the upper limit to six years. In the course of negotiations on Sustaining Progress, the social partners and Government agreed to raise this to eight years. The decision as to the most appropriate age at which the leave should be taken should be made by the parents themselves. As legislators, we serve parents best by providing them with the right to take parental leave to care for their children at a time suited to their own domestic situation within the parameters set by the directive.

Section 2 provides for the extension of the maximum age limit of an eligible child to eight years thereby offering parents a greater degree of flexibility in managing their parental leave entitlement. In addition, a new provision has been made in the Bill to increase the maximum age to 16 years in the case of a child with a disability. This extension of the age limit will offer further flexibility to working parents of disabled children.

The Bill also implements the working group's recommendation to extend the parental leave entitlement to persons acting in loco parentis of an eligible child. In Irish society today, many children are actively cared for by persons who are not their natural parents. A number of categories of persons who actively parent are not entitled to parental leave under the existing legislation. These include long-term foster parents, partners to the natural parent of a child where the natural parent may be divorced or separated and has formed a new relationship through remarriage or otherwise and other parents in loco parentis.

Provision is also made in the Bill to extend the parental leave element to adopting parents. Under the existing legislation, parental leave is available to adoptive parents where an adoption order has been made and is in force. This excludes adoptive parents who have a child placed in their care and are actively parenting but in whose favour an adoption order has not yet been made. Many months may lapse between placement and adoption with the effect of excluding an adopting parent from parental leave during this time when time off from work for bonding with the adopted child may be most needed. This is addressed in section 2. The inclusion of adopting parents also brings the parental leave legislation in line with the adoptive leave provisions which grant adoptive leave from the date of placement rather than from the date the adoption order is made.

The Bill also provides employees with an additional entitlement to choose to take their parental leave in separate blocks — each block consisting of a minimum of six continuous weeks. This will improve the options available to employees, many of whom are limited by their employers to availing of their statutory parental leave entitlement in a single 14 week block. It is still possible for the employee to avail of the leave in shorter periods of weeks, days or even hours over an extended period if the employer agrees. In many instances, particularly in the public sector, a large degree of flexibility is already on offer from employers.

The purpose of both the parental leave directive and the Parental Leave Act 1998 is to enable men and women workers to take time off work to take care of their children. However, as matters stand, no express provision is made in either the directive or the 1998 Act to deal with a situation where an employee on parental leave becomes ill and so is unable to continue to care for the child. The working group was of the view that where a parent on parental leave becomes unable to care for the child on account of illness, it may reasonably be concluded that the parent is unable to avail of the parental leave entitlement and should be able to benefit from sick leave for the duration of the illness. Legal advice concluded that a legislative amendment was required to clarify the position in relation to the effect of sick leave on the parental leave entitlement.

The working group recommended the amendment of the 1998 Act in accordance with the legal advice received. This amendment is provided for in section 5 and provides that an employee who falls ill when about to commence or while on parental leave and, as a result, is unable to care for the child may postpone or suspend parental leave for the duration of the illness following which period the parental leave recommences. Once the leave is postponed or suspended, an employee's absence from work is treated in the same manner as any other employee absent from work due to sickness and the employee may benefit from whatever sick leave arrangements are available under their contract of employment, including sick pay or disability benefit.

I now turn to the specific provisions in the Bill. Section 1 is a standard interpretation section. I have already mentioned section 2 which implements three recommendations of the working group by providing for the increase in the maximum age of an eligible child from five years to eight years; making a new provision to increase the age limit to 16 years in the case of a child with a disability; and making provision for the extension of the parental leave entitlement to persons in loco parentis and to adopting parents of an eligible child. New definitions are provided in this section, including "adopting parent", "disability" and "relevant parent". These definitions are required to take account of the extension of the parental leave entitlement under this section.

Section 3, which I also referred to earlier, provides employees with an additional alternative entitlement in section 7 of the principal Act to take parental leave in separate blocks. Each block must consist of a minimum of six continuous weeks at not less than a ten week interval unless the employer and employee agree to a shorter interval.

Section 4 amends section 8 of the principal Act to provide for consequential amendments to the notification requirements of the Act which arise from the new provisions in the Bill to extend the parental leave entitlement to persons in loco parentis and to adopting parents and to take parental leave in separate blocks. Provision for an employee to postpone or suspend the parental leave for the duration of the sickness is made in section 5.

Section 6 amends and extends section 11 of the principal Act to provide for consequential amendments to the postponement provisions arising from new provisions in sections 2 and 4.

Section 7 provides for an amendment to section 15(1)(c) of the principal Act to ensure consistency with similar provisions in the Maternity Protection (Amendment) Act 2004 and the Adoptive Leave Bill 2004, both of which contain provisions necessary to comply with Directive 2002/73/EC of the European Parliament and Council of 23 September 2002. The latter amends Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training, promotion and working conditions. These provisions stipulate that on return to work on the expiration of a period of maternity, adoptive or parental leave, an employee is entitled to return to the same job, with the same contract of employment and on terms and conditions no less favourable, and to benefit from any improvement in working conditions to which the employee would have been entitled had he or she not been absent from work.

Section 8 applies another element of the aforementioned directive to section 16(2) of the principal Act. This section provides that an employee who is entitled to return to work following parental leave but for whom resumption of the same work is not practicable and for whom suitable alternative work is offered, is entitled to return to an equivalent post on terms and conditions that are no less favourable and to benefit from any improvement in working conditions to which he or she would have been entitled had he or she not been absent from work.

Provision is made in section 9 for the protection of employees from penalisation by way of dismissal, unfair treatment or unfavourable change in conditions of employment for proposing to exercise or having exercised an entitlement to parental leave or force majeure leave.

Section 10 makes provision to empower the Equality Authority to prepare statutory codes of practice regarding parental and force majeure leave for the approval of the Minister for Justice, Equality and Law Reform. The statutory code will be admissible in evidence in any proceedings before a court, the Employment Appeals Tribunal or a rights commissioner. Any provision of the code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

The statutory code of practice will build on a voluntary code being finalised by the national framework committee on work-life balance policies. This committee was convened by the Department of Enterprise, Trade and Employment with participation by the social partners, the Equality Authority and a number of Departments including my own. Section 11 contains standard provisions dealing with the Short Title and citation provisions.

The Bill has attracted critical comment for not making provision for paid parental leave. The commitment made by the Government as part of Sustaining Progress is to implement the changes to the parental leave agreed by the social partners. In the absence of social partnership consensus on the question of paid parental leave, the Government is not prepared to propose legislative change that are unacceptable to one side of social partnership.

The arguments, both for and against paid parental leave, are strong and the merits of each were enunciated in some depth in the report of the working group. The introduction of measures to reconcile work and life responsibilities is of benefit to employers and employees alike. Employers benefit through increased employee satisfaction, improved attraction and retention of staff, greater productivity and decreased absenteeism. Employees are provided with greater flexibility in combining their work and family or other responsibilities.

Our experience in this State has been that the social partnership model works well in terms of developing economic and social policy. This is particularly evident in the significant developments which have already taken place, through statutory and non-statutory initiatives, in improving work-life balance options for employees. It is widely recognised that the work-life balance agenda cannot be progressed satisfactorily either at national or international level without the inclusion of the social partners. Real change will not be effected without them.

It must also be acknowledged that progression of the work-life balance agenda can only be successfully achieved through striking the delicate balance between improving existing measures at the level of enterprise while remaining economically competitive. It is vital that we create and maintain the economic conditions that will ensure quality employment opportunities and that we do not introduce initiatives without taking cognisance of their effect on our competitiveness in the short to medium term.

Given our acknowledged success in building and maintaining a strong economy in recent years, it would be unwise and possibly damaging to the integrity of the partnership process to introduce paid parental leave without the full agreement of all stakeholders. Progressing the work-life balance agenda presents a complex set of challenges for policy makers, the Legislature, employers and employees. These challenges, both social and economic, do not necessarily dovetail into situations acceptable to all stakeholders.

It would be a mistake to consider work-life balance without addressing the availability of child care. The Government's policy is to increase the supply of quality child care in a way that offers parents the greatest choice. In 1997, there was a serious shortage of such places. The Government set itself the task of addressing this through the equal opportunities child care programme, EOCP, for 2000 to 2006. This is a substantial programme and its scale demonstrates that this is the first Government to recognise the need for the State to act in this area in a meaningful way.

However, centre-based child care is merely one part of the equation. The Government supports parental choice, be that for centre-based child care, child minding, part-time child care or child care by family members. This has been facilitated by an increase in the levels of income support for all parents, regardless of the care choices made for their children, through record increases in child benefit.

This Bill is the third and final Bill in a suite of statutory work-life balance measures to which my Department is committed under Sustaining Progress. The Maternity Protection (Amendment) Act 2004, commenced on 18 October 2004, implements the recommendations of the working group on the review and improvement of the maternity protection legislation. Its provisions strengthen and improve the employment rights of pregnant women, those who have recently given birth and those who are breastfeeding. The Adoptive Leave Bill 2004 amends the Adoptive Leave Act 1995 in order to implement several recommendations of relevance to adoptive leave from the maternity protection working group. The Bill passed all Stages in the Seanad last year and is progressing through the Dáil.

The Parental Leave (Amendment) Bill 2004 represents the fulfilment of the Government's commitments under Sustaining Progress and the programme for Government to strengthen and improve the existing parental leave provisions. I commend the Bill to the House and look forward to Senators' contributions to the debate.