David Stanton (Cork East, Fine Gael) | Oireachtas source

Government amendment No. 5 is procedural in nature and deletes existing text in the Bill which was inserted on Committee Stage. These provisions will be replaced by the text which will be moved in amendment No. 6.

Government amendment No. 6 provides for the amendment of section 7 of the principal Act which is the section which governs the manner in which leave is taken by parents. At present under the Parental Leave Act 1998, parents may take leave either in two blocks of leave in excess of six weeks each or in a single block of 18 weeks. A parent may also elect to take the parental leave in a single, large block of 18 weeks. Given the Government's proposal to increase the entitlement to parental leave on a phased basis paragraphs (a), (b) and (c) of amendment No. 6 provide that the single maximum of parental leave that a parent may take will increase from 22 weeks from 1 September 2019 to 26 weeks from 2020.

Moving on from the first three parts of amendment 6, on Committee Stage I informed the House that my officials identified a technical issue caused by the extension of the period of parental leave and its interaction with section 7(1)(aa) of the Parental Leave Act 1998. As I outlined, section 7(1)(aa) of the Act currently provides that leave may be taken in a single period of 18 weeks or in two separate periods of not less than six weeks in duration. However, as section 7(1)(aa) explicitly states that parental leave must be taken in two separate periods, should the Act remain as it is, a problem arises for a parent who has taken his or her original entitlement in two separate periods as per section 7(1)(aa). In that circumstance, she or she will not be able to take a third or subsequent period of leave to allow him or her to avail of the additional eight weeks provided for in the Bill if the Bill remains unchanged.

Similarly, this provision, if not amended, may also prevent a parent from taking the remainder of the 18 weeks that he or she may not have been able to take before his or her child reached the age of eight. The Bill, as currently drafted, makes no provision to allow a parent who has already take his or her leave in two separate periods to avail of the additional eight weeks being provided for in the Bill. The Bill creates an entitlement to an additional eight weeks of leave but, for a certain group of parents, provides them with no way of taking it. As it stands, this issue renders the Bill unworkable, and Senators will agree that this is a serious flaw in the Bill that cannot go unchecked. This is why I am pressing amendment 6, paragraph (d).

In summary, amendment 6, paragraph (d) inserts a new section 7(1)(ba) into the 1998 Act to allow any parents to take their unclaimed leave and their new entitlement to eight weeks, irrespective of the form in which they previously took parental leave under section 7(1)(aa). Under this new provision, parental leave may be taken in blocks of one or more weeks at a time. Through this amendment, the Government is rectifying the error in the Bill and is providing parents with greater flexibility as to how they can take their leave. It is a significant step forward from the current situation in which parents may be forced to take their leave in blocks of six weeks if their employer does not agree to shorter periods of leave.

Under the Government’s amendment, all eligible parents will be able to take leave in blocks of one week or more.Obviously, many employers permit their employees to take leave in periods of a single day or parts of a day. However, that is a voluntary agreement between employer and employee. Such arrangements will be unchanged as a result of the proposed amendment. The amendment will provide much-needed flexibility for employees whose employers currently require them to take leave in blocks of six weeks or more.

Amendment No. 6 at paragraph (e) is an amendment to section 7(2)(a) of the 1998 Act, which is necessary to provide for how parental leave is to be calculated where an employee works on a pro ratabasis.

Section 7(2)(a)(i) of the Act provides that the period of parental leave, in hours, to which employee shall be entitled, shall be 18 times the number of hours per week worked by that employee. Similarly, where an employee’s hours are not recorded, section 7(2)(a)(ii) of the Act provides that the period of parental leave, in hours, to which the employee shall be entitled, shall be 18 multiplied by the average number of hours per week worked by that employee.

In line with the Government’s proposal to phase in parental leave, amendment No. 6 at paragraph (e) provides that the current multiplier of 18 will increase to a multiplier of 22 from 1 September 2019 and to a multiplier of 26 from 1 September 2020 onwards.

Section 7(2)(b) of the 1998 Act provides that where a parent is on parental leave and that leave falls on a day that is a public holiday or another form of statutory leave or sick leave, then those days shall be added to their entitlement to parental leave.

Amendment No. 6 at paragraph (f) provides that if a parent is taking parental leave in the manner set out in the newly introduced section 7(1)(ba), the same entitlements to allow them to recoup authorised absences from work, as I have just outlined, will extend to those parents.

I will now discuss paragraphs (g) and (h) of amendment No. 6. As Senators will recall, in 2006 the 1998 Act was amended for the purpose of extending the upper age limit of a qualifying child to eight years of age and 16 years in the case of a child with a serious illness or disability. The Act was also amended to extend parental leave to parents of adopted children and to implement the various recommendations of a working group set up to review the Act. When the qualifying age of the child was increased in 2006, an exception to this limit was inserted via section 7(3A) of the Act to ensure that parents could take their entitlement to parental leave in the last qualifying year. These sorts of arrangements are commonly inserted into legislation to ensure that people receive their full statutory entitlements.

In the Bill before us today, we have also increased the qualifying age of the child to 12 years of age, and the Bill’s sponsors have sought to modify the transitional provision in section 7(3A) to ensure that parents will have no difficulty in taking their leave in the last year of entitlement. However, while well intentioned, the amendments in the Bill need to be replaced, as the manner in which they do so is problematic.

As I have outlined, section 7(3A) is a transitional provision and must remain unaltered, as that section is specific to the other amendments made under the 2006 Act. It is necessary to ensure that the protections that were put in place when the Act was amended in 2006 remain in place on a transitional basis for parents. We must ensure that parents do not inadvertently lose entitlements as a result of modifying existing transitional arrangements in section 7(3A).

In general, it is the drafting and legislative policy of the Office of the Attorney General not to amend a transitional provision such as the one in section 7(3A) and in this context, the Office of the Attorney General has advised against modifying these transitional arrangements in the existing Act.

It is the advice of Parliamentary Counsel that substituting the provisions of a section in legislation which contains a transitional arrangement is equivalent to repealing that section and it is not advised to pursue such a course of action because, as I have outlined to the House, it can have unintended consequences for the parents we are trying to assist. Instead, Government amendment No. 6 at paragraphs (g) and (h), mirrors what the Bill is seeking to do, but does so by inserting a new subsection (3B) into section 7 of the Act. This means that the same aim is achieved but without interfering with the previous transitional arrangements.