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

I am pleased to address the House on Second Stage of the Parent's Leave and Benefit Bill 2019. This Bill has its origin in a commitment in A Programme for a Partnership Government to increase paid parental leave in the first year of a child's life. Senators may also be aware that a provision was included in the general scheme of the Bill to address the lacuna in the law whereby male same-sex couples who adopt jointly are not eligible for adoptive leave even though they can adopt. This situation arises because the only people entitled to adoptive leave are adopting mothers and sole male adopters. A female couple possibly could claim adoptive leave as one or both of them could be regarded as adopting mothers but the law clearly needs to be reformed to address the situation of both genders. I had strongly hoped to be in a position to bring this forward at this time but the urgency attending this Bill and the desire to introduce parent's leave by 1 November meant that we ran out of time. It is my strong intention to address the issue in a forthcoming civil law (miscellaneous provisions) Bill which will proceed without delay. I know Senators here are very anxious that this be done and I am as well. I just want to put that on the record at the very start because it is on my mind and I was concerned about it. We are under terrible time pressure to get this Bill over the line by November and my officials just physically did not have the time to get it done properly. Everything would be delayed a lot longer if that happened. I am giving a commitment now to get this done as soon as possible in the next civil law (miscellaneous provisions) Bill which hopefully will come through without too long a delay.

Leave for parents at this time has a significant positive impact. The experiences early in life are critical in establishing the foundation for learning, work and future health. Evidence shows that children benefit from being cared for and spending time with both parents at this time. Parent's leave will give an opportunity to fathers additional to that provided by the Paternity Leave and Benefit Act 2016 to take part in the care of their child at this young age. Evidence from countries such as Norway shows that parent's leave, aside from its benefit for the child and positive impact on fatherhood, promotes equality for women and supports higher levels of female participation in the labour force. It facilitates women in combining paid work with caring for their children and, in this way, makes it more likely that they will remain in the labour force.

The commitment in the programme for Government that I have just mentioned gave rise to interdepartmental consultations on its implementation. The outcome was that the Government decided to develop a new social insurance based, non-transferable paid parental leave scheme of two weeks' leave to each parent to be taken in the first year of a child's life for employees and the self-employed. The Government approved the general scheme of the Bill that was needed to put this into effect and this scheme was published on 23 April last. The Oireachtas Joint Committee on Justice and Equality waived pre-legislative scrutiny because of the urgency of the Bill in view of our commitment to introduce the leave and benefit with effect from 1 November 2019. I am very grateful to the committee for this and we, for our part, have endeavoured to present to the House what I believe is a well-considered proposal which expands significantly the family leave available to new parents while also having regard to the need to minimise the burden that this will bring for employers.

The overall significance of the Bill is that it provides for parent's leave of two weeks' duration, which can be increased to a maximum of nine weeks by order of the Minister for Justice and Equality. It also provides for the payment of parent's benefit where the parent fulfils the relevant eligibility conditions. This leave will be a stand-alone entitlement with no sharing permitted and will not affect any existing entitlements such as maternity, adoptive, paternity, and unpaid parental leave. Section 2 contains provisions on interpretation. Most importantly, it defines "relevant parent", that is, the person who will be entitled to parent's leave, as follows:

“relevant parent”, in relation to a child, means a person who is—(a) in the case of a child who is, or is to be, adopted—

(i) the adopting mother or sole male adopter of the child,

(ii) the spouse, civil partner or cohabitant, as the case may be, of the adopting mother or sole male adopter of the child, or

(iii) where the child is, or is to be, adopted jointly by—

(I) a married couple of the same sex,

(II) a couple that are civil partners of each other, or

(III) a cohabiting couple of the same sex,

each of the couple referred to in clause (I), (II) or (III),

and

(b) in any other case—

(i) a parent of the child,

(ii) the spouse, civil partner or cohabitant, as the case may be, of a parent of the child, or

(iii) a parent of the child under section 5 of the Children and Family Relationships Act 2015 where the child is a donor-conceived child within the meaning of Part 2 of that Act;

This is quite a broad definition and Senators may already have noted that more than two people could, in some situations, be relevant parents, for example, where the parents are not married to each other and either or both parents are married to other people. Section 5 creates the entitlement to two weeks' leave for a relevant parent of a child who is adopted or born on or after 1 November 2019. The purpose of the leave is to enable the parent to provide or assist in the provision of care to the child. A key point is that this is the purpose of the leave. A person may be a relevant parent but will not be entitled to the leave if they are not fulfilling this purpose. Leave can be taken as a continuous period or in minimum periods of one week. The two weeks' duration can be extended by order of the Minister for Justice and Equality up to a maximum of nine weeks. Such an order will require the prior approval by resolution of both Houses of the Oireachtas. Usually, parliamentary oversight of the making of ministerial orders takes the form of a power on the part of either House to annul an instrument that has already been made. The positive resolution requirement here is in recognition of the significance of this ministerial power, that is to increase the amount of parent's leave up to a maximum of nine weeks.

Section 6 provides that the relevant parent shall give the employer six weeks' notice of the intention to take parent's leave. Section 7 covers the allocation of parent's leave. The leave shall be taken in the first year of the child's life or, in the case of adoption, in the year after placement. Notwithstanding this, the period is extended where the parent cannot take the leave due to postponement under sections 13 or 14.These deal, respectively, with postponement by the employer and postponement on the hospitalisation of the child. In such cases, the failure to take the leave within a year cannot be regarded as the fault of the parent and the extension beyond a year is justified on this basis. There is a further exception where the leave cannot be taken within the year due to the requirement to give six weeks of notice, such as where a parent dies and the untaken leave transfers to the other parent, in accordance with section 16, very close to the expiry of the year.

Sections 7(4) and 7(5) provide, in the case of adoption and birth respectively, that where this takes place between 1 November next and the commencement of the section, the one-year period runs from the date of commencement. This deals with the situation in which passage of the Bill may be delayed and ensures that the eligibility date of 1 November will still apply and that parents will have the full year in which to take the leave. I hope that such a situation does not arise but if it were to arise, these provisions will minimise negative consequences for parents.

Sections 8 to 10, inclusive, provide for the sequencing of types of leave where a parent is entitled to more than one type of leave. The general approach adopted is that maternity, adoptive and paternity leave are to be taken first as they are inherently related to the event of birth or adoption. As parent's leave is for the care of the child over the first year of life, it should naturally follow the other forms of leave. However, a qualifying parent will be entitled to take parent's or paternity leave in any order wished. This policy was adopted as it was felt there was a potential danger that parents could confuse parent's and paternity leave. The policy is designed to avoid a case where a parent would take parent's leave first and therefore would be ineligible to take paternity leave. In such a case, it would be regarded as harsh to deny the person the paternity leave.

Section 13 provides for postponement of leave at the initiative of the employer where the taking of leave would have a substantial adverse effect on the business or organisation. An example of this would be where there are seasonal peaks. The postponement may last up to a maximum of 12 weeks. Postponement under this section can only take place once in respect of each period of leave applied for. This section is similar but not identical to section 11 of the Parental Leave Act 1998, which provides for unpaid parental leave. It is important that employers have this possibility but we should also note that the standard for exercising it is that the taking of leave would have a substantial adverse effect on the operation of the business, profession or occupation.

Section 14 provides that the parent may request the employer to postpone leave if the child is hospitalised. This reflects similar provisions in the legislation on maternity, adoptive and paternity leave. Section 15 provides for continuation of entitlement to leave where the child dies. Maternity, adoptive and paternity leave operate in this way as well. Section 16 provides for the entitlement of an employed surviving parent to the untaken leave of a parent who dies. The transfer of leave on death is also a feature of maternity, adoptive and paternity leave.

Section 19 provides for the protection of employees from penalisation having proposed to exercise or having exercised the entitlement to parent's leave. This is a standard provision in family leave legislation. Section 20 contains a general right to return to work on the same terms and conditions that applied prior to the parent taking leave. Section 24 contains provisions on the exercise of jurisdiction by an adjudication officer of the Workplace Relations Commission and by the Labour Court on appeal in the case of disputes relating to parent's leave.

Part 5 provides for the introduction and payment of parent's benefit in the Social Welfare Consolidation Act 2005. Section 29 introduces a new Chapter 11B to the Social Welfare Consolidation Act 2005 that sets out the general qualifying conditions for receipt of parent's benefit payable for two weeks to employees and the self-employed, the required social insurance contributions, which are aligned with the requirement in place for maternity and paternity benefit, and the weekly rate of benefit payable, which is also in line with that for maternity and paternity leave, which is €245 per week. The benefit will be payable in a continuous period or in individual blocks of one week.

Part 6 contains miscellaneous provisions including consequential amendments of other Acts. Section 36 is a substantive rather than a technical provision. It amends the Adoptive Leave Act 1995 to provide that, where a stepparent adopts a child and adoptive or maternity leave was previously taken in respect of that child by a previous partner of the other parent, the adopting stepparent shall not be entitled to adoptive leave. A consequential amendment is made to the Social Welfare Consolidation Act in section 28 relating to entitlement to adoptive benefit. That is the substance of what we propose.

At this point, I will say a few words on European Union work-life balance directive and its relationship with this Bill. The directive, which concerns work-life balance for parents and carers, was formally adopted on 13 June 2019 and came into force on 1 August. It requires member states to provide for four months of parental leave, two months or nine weeks of which shall be non-transferable. This non-transferable leave must be paid at a rate to be determined by member states. Member states have until 2 August 2022 to transpose this provision except for the final two weeks of paid leave element, which must be transposed by 2 August 2024. The purpose of the Bill before the House is to implement the commitment in the programme for Government, not to transpose the directive, although it does not create any obstacle to complying with the directive either. My Department will address transposition, which goes beyond the question of parental leave, in due course with a view to preparing the necessary measures in sufficient time to comply with the deadlines specified.

The current Bill is an important reform in that it introduces paid parent's leave for the first time, thereby going beyond maternity, adoptive and paternity leave, which are the existing forms of family-related paid leave. This adds to the increases in recent years in the provision of family leave. In this context, I mention the Paternity Leave and Benefit Act, which was passed in 2016, providing two weeks of paid paternity leave for fathers, the Social Welfare Act 2017 providing for longer maternity leave, with the associated benefit, in the case of premature births, and the Parental Leave (Amendment) Act 2019 providing for an increase in unpaid parental leave from 18 to 22 weeks, with effect from 1 September 2019 and to 26 weeks from 1 September 2020. With that legislation, there was also an increase in the upper age limit of the child in respect of whom the leave is taken from eight to 12 years. I acknowledge that the latter measure was based on a Private Members' Bill tabled by Deputies Shortall and Catherine Murphy that was passed with the co-operation of the Government. This has left us with a substantial body of family leave going well beyond the requirements of European Union law.

It is worth reflecting on the fact that to implement the requirement in the work-life balance directive for four months of parental leave, two of which must be paid, equivalent to 18 and nine weeks respectively, the only thing required of us would be to provide that nine weeks of the existing parental leave under the Parental Leave Acts 1998 to 2019 be paid. Pursuant to the programme for Government, however, we are going well beyond this with the current Bill and providing potentially nine additional weeks of paid parent's leave. I am very happy to share responsibility for these developments as these are reforms that were very much needed. They are important for the development of the next generation, for helping parents reconcile their parenting role with paid work and for promoting gender equality through facilitating women in continuing paid careers after becoming mothers. I look forward to hearing the views of Senators and I commend the Bill to the House.