Thursday, 11 December 2003
Maternity Protection (Amendment) Bill 2003: Report and Final Stages.
Section 7(2) provides that an employee may request to postpone her maternity leave with effect from a date she selects, only if the period of maternity leave concerned taken by her on that day is not less than 14 weeks and that not less than four of those weeks are taken after the end of the week of confinement.
During the debate on Committee Stage the postponement of maternity leave in the event of the hospitalisation of the child was discussed. Senators expressed a view that the postponement provisions were too restrictive in that they may only apply after the employee has availed of 14 weeks maternity leave, not less than four of which are taken after the date of confinement.
During the debate on this issue the legal reasons behind this restriction were outlined. In view of the comments made, I understand the Minister of State, Deputy O'Dea, undertook to look at this matter again to see if anything could be done to improve the situation. Unfortunately, having examined the matter again, the situation is unchanged. European Court of Justice case law is categorical on this issue. In the case of Margaret Boyle and Others v. the Equal Opportunities Commission, the European Court of Justice stated:
Article 8 of Directive 92/85 provides that the period of maternity leave provided for therein must be at least 14 continuous weeks allocated before and/or after confinement.
It follows from the purpose of that provision that the woman cannot interrupt or be required to interrupt her maternity leave, return to work and complete the remaining period of maternity leave later.
In light of the provision of the directive and European Court of Justice case law, there is absolutely no discretion to make provision in national legislation for the postponement or splitting of maternity leave at any stage during the first 14 weeks of maternity leave or during the four weeks post-confinement period. Consequently, I cannot accept the amendment tabled by Senator Tuffy and her colleagues.
I thank the Minister of State for examining this issue. This is the third or fourth time we have received this advice from the Attorney General's office and from the EU Commission. If a child goes back into hospital before the mother has taken her 14 weeks maternity leave, the legislation takes away from her right to maternity leave. If the child is hospitalised the mother could go back to work for five or six weeks and resume her maternity leave afterwards. This provision minimises her rights.
While I understand that it may not be possible to change the legislation to take account of that fact, the Minister should raise this matter in Europe so that the directive can be amended. The Minister of State, Deputy O'Dea, observed during the debate on Second Stage that a right is not a right if no one wants it. We cannot make things less fair for women. That would be the case if a baby was in hospital for a number of weeks and the mother could not take maternity leave when he or she was discharged. She would than have to take parental leave, which she may want to use at a later stage in the life of her child. I urge the Minister of State and his Department to continue to fight this case at European level to ensure that women's rights are of benefit to us.
Senator Cox has expressed matters as well as anyone could. The amendment was proposed because the Minister of State, during the debate on Committee Stage, undertook to examine the matter again. I hope the matter can be reviewed before the Bill goes to the Dáil. If not, Senator Cox's suggestion that the matter be raised at European level is the right approach.
I second the amendment. Has the Minister looked at EU Directive No. 92/85 on pregnant workers? Where a mother or child falls ill during the maternity leave or the additional leave, it is unfair that the leave should be cancelled. She is then forced to use sick leave or parental leave.
I am deputising for the Minister of State, Deputy O'Dea, who is ill. There may be an opportunity next year with new European legislation to examine the issue again.
Amendment, by leave, withdrawn.
Amendments Nos. 3 to 6, inclusive and Nos. 11 to 15, inclusive, are related to amendment No. 2 and may be discussed together. Is that agreed? Agreed.
Government amendment No. 2:
In page 7, line 27, to delete "subsection (5)(a)" and substitute "subsection (4)(a)".
These amendments are consequential on the renumbering of some subsections as a result of amendments made to the text of the Bill on Committee Stage.
Amendment agreed to.
Government amendment No. 3:
In page 7, line 45, to delete "subsection (5)" and substitute "subsection (4)".
Amendment agreed to.
I move amendment No. 7:
In page 9, lines 17 and 18, to delete "(other than the last 3 classes in such a set)".
It is wrong to exclude the right to leave for the last three antenatal classes. For example, if the last three classes are held before the employee takes maternity leave, she would not have the right to attend them. This is an unfair restriction.
The Minister of State, Deputy O'Dea, stated that this is the arrangement negotiated with the employers. It seems to be an unfair restriction and goes against the spirit of the legislation. We ask the Minister of State to support the amendment and to remove the exclusion of the last three classes.
I second the amendment and I support it. I cannot understand why the last three classes are excluded. It does not seem to make sense, unless the Minister believes the mother will already be on maternity leave. I would like to hear the Minister's view. If the mother is still at work, she should be allowed attend all the classes.
Section 8 of the Bill seeks to implement the recommendations of the maternity working group on providing entitlement to attend antenatal classes. In the case of a pregnant employee, the Bill provides for time off from her work without loss of pay for the purpose of attending one set of antenatal classes other than the last three classes in such a set. As stated on Committee Stage, this recommendation is the result of a compromise between members of the working group.
The implementation of the recommendation has a direct cost implication for employers. As part of the compromise reached during negotiations, employers' representatives agreed that the legislation should provide that employers pay employees for time off to attend a full set of antenatal classes except for the last three. Section 8 reflects this agreement. Time off to attend the remaining classes will be at the employee's own expense unless the employer agrees otherwise. This recommendation is part of a composite set of recommendations made by the maternity working group following negotiations between the social partners and Departments.
I assure the House that these agreed recommendations were the result of considerable debate, negotiation and compromise reached between the members of the working group. Each of the participants made concessions to reach agreement on as many issues as possible so that the group could put forward a set of realistic and viable recommendations to significantly improve and strengthen the existing maternity protection legislation.
I am of the view that to deviate from the group's recommendations would be a breach of the partnership process through which mechanism employment rights have been enhanced in many ways in recent years. I thank Senator Tuffy for raising this matter. However, for the reasons outlined, I cannot accept the amendment and I do not propose to make any changes to the provision in section 8 for attendance at antenatal classes.
I direct these remarks to the officials in the Department. The Minister of State, Deputy O'Dea, undertook to examine this issue again and it is obvious that he has done so. However, the points raised on Second and Committee Stages are still valid and need to be reiterated. The Minister of State made a significant and very welcome change with regard to the timing of maternity leave by allowing women the choice to take only two weeks leave before delivery as opposed to the four weeks which was previously stipulated. That has created a change in the time women remain at work before they take maternity leave. Most antenatal classes take place in the latter two months of pregnancy. If that is the case, a woman is attending antenatal classes during the time she is still working. I made the point on Committee Stage that in the Western Health Board area, the set of antenatal classes provided by the board consists of four sessions in four weeks. This legislation discriminates against those women because the last three classes are not covered, that is, three quarters of the course is not covered.
I understand ICTU and IBEC were very involved in the partnership approach to this legislation. If the issue was revisited by the working group there may be some solution which would not increase the cost by a significant amount. It is accepted practice that most employers pay for the entire time off to attend antenatal classes. That is the case in my business where women are never deducted the time off for attendance at antenatal classes, despite what is stipulated in the legislation. We must be very careful to ensure that this does not cause discrimination. I hope there will be an opportunity to examine this issue again before the Bill becomes law.
I fully support the views expressed by Senator Cox. The explanatory memorandum to the Bill states that one of the main provisions in the Bill is the provision for expectant mothers to attend one set of antenatal classes without loss of pay. I regard it as misleading if the legislation states that the mother cannot attend the final three classes of such a set. I ask the Minister of State to consider this issue further and to provide that a mother should be allowed attend the full set of antenatal classes.
I thank both Senators for supporting the amendment, which I intend to press because the point is sufficiently important. It seems so unnecessary to exclude the three classes. I can understand that employers might have concerns about the cost to their own businesses, but many employers would not deduct pay if a pregnant employee attended antenatal classes. It is in the interest of their businesses to facilitate expectant mothers and mothers generally as much as possible and, therefore, I wish to press the amendment.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 8:
In page 11, to delete lines 13 to 17.
This amendment was also tabled on Committee Stage when we sought to oblige employers to provide facilities for breastfeeding in the workplace. This amendment does not go that far but we feel it is wrong to state that the employer does not have to provide such facilities. We had a detailed discussion on this matter on Committee Stage. It is obvious that it would be more difficult for employers to provide breaks for nursing mothers than to provide breastfeeding facilities. Employers should examine the possibility of providing such facilities. Section 8(1) introduces an unnecessarily negative tone since the legislation places no obligation on employers to provide breastfeeding facilities. If the particular subsection were absent, the legislation would be silent on the matter and, thus, there is no way the Bill could be interpreted as stating that employers are obliged to provide such facilities. Employers are obviously not so obliged because there are two alternatives. In light of this, subsection (1) should be removed. Legislation such as this Bill should aim to provide breastfeeding facilities for nursing mothers. It is in the interests of employers to provide such facilities, including crèches, which encourage family-friendly practices in the workplace and facilitate employment generally.
I second the amendment and support Senator Tuffy's remarks. The subsection is negative and lends nothing to the legislation. Its removal would render the Bill silent on the issue but its inclusion will mean that employers shall not be required to provide breastfeeding facilities. We are trying to encourage employers to provide such facilities, yet in this legislation we are telling them they do not have to do so. We are in the business of encouraging employers to provide all types of facilities for working mothers and parents generally, but this subsection strikes a negative tone. Its inclusion in the legislation will give a bad impression to employers that the Government is not encouraging or placing an onus on them to provide these facilities. It would be a good day's work if the amendment were accepted.
As outlined on Committee Stage, the provisions contained in section 9(2) reflect the Supreme Court ruling on the Employment Equality Act 1996, that one can only place social obligations in the public interest on private property owners where no more than nominal costs will be incurred. The legal advice available to me is that it is necessary to use this particular construction in the Bill. Rather than removing a perceived negative aspect of the Bill, as suggested on Committee Stage, omitting the reference to nominal cost would remove the clarity this subsection adds, which is that the employer may not be required to spend more than a nominal amount on breastfeeding facilities in the workplace. Furthermore, the maternity working group, which had time to examine this issue in its entirety, recognised the necessity to include a reference to a nominal cost limitation and made explicit reference to this in its recommendation. While I thank Senator Tuffy for having raised the issue again, I cannot accept her amendment for the legal reasons I have outlined.
Amendment, by leave, withdrawn.
Amendment No. 10 is an alternative to Government amendment No. 9 and both may be discussed together by agreement.
Government amendment No. 9:
In page 11, lines 43 and 44, to delete "to whom subsection (1) applies" and substitute "who has exercised her entitlement under subsection (1)".
The purpose of amendment No. 10 is for clarification. A similar amendment was tabled on Committee Stage but it has been changed to facilitate the Government because the current wording of the section goes beyond what it should. My understanding is that the way the section is currently worded means an employee who is breastfeeding and who has not taken advantage of the provisions of the section, would have to notify her employer in writing that she has ceased to breastfeed. I may be wrong but that is my reading of the section and, if this is so, it would be absurd. I know it is a matter of interpretation but that is the meaning of subsection (4) as it is currently framed. It should be amended by the deletion of the words "to whom subsection (1) applies" and the substitution of "who has exercised an entitlement under subsection (1)". In that respect, the obligation to notify the employer that breastfeeding has ceased would only apply if the employee had taken advantage of the provisions to apply for time off work or for breastfeeding facilities. I would like to hear the Minister of State's comments on that point.
I accept that Senator Tuffy's amendment would offer some clarity to subsection (4). I was prepared to accept the Senator's amendment but following consultation with the Office of the Parliamentary Counsel, I am advised that the wording she proposes requires a minor drafting alteration to adhere more closely to drafting convention. Consequently, I have moved this amendment to address the matter.
Amendment agreed to.
Amendment No. 10 not moved.
Government amendment No. 12 has already been discussed with Government amendment No. 2.
Government amendment No. 12:
In page 15, line 50 to delete "subsection (4)" and substitute "subsection (3)".
Amendment agreed to.
Government amendment No. 13:
In page 16, lines 21 and 22, to delete "subsection (4)(c)" and substitute "subsection (3)(c)".
Amendment agreed to.
Government amendment No. 14:
In page 16, line 41, to delete "subsection (4)(c)" and substitute "subsection (3)(c)".
I thank the Minister of State, Deputy Tim O'Malley, for coming to the House to take the Bill. I realise this is the Final Stage and it is difficult to get a handle on it when one has not been involved from the outset. Generally, I am happy with the Bill. We have made improvements and I thank the Minister of State, Deputy O'Dea, for bringing forward those proposals.
Overall, we still need to do much more for working parents, particularly working mothers, including mothers who are breastfeeding or those who have a very young child. It is extremely difficult to go out to work when one has a very young child and some mothers have more than one. We need to do everything in our power to assist parents in that position, make family friendly policies and have family friendly workplaces. Those facilities, particularly crèches, are still not available to parents. We, the Members of the Oireachtas, should be giving the lead to other companies and we are falling down by not giving that lead. It is essential that we provide a crèche in Leinster for the many parents – I speak for men and women – who work in these Houses. That would give a lead to the other Departments in this city and throughout the country which should provide such facilities. I am aware some local authorities are improving the position in that regard, but it is time we came into the modern world.
We have encouraged women into the workplace, but we owe it to them to make their lives a little easier. Having a crèche in or adjacent to their workplace would make life much easier for parents and children because visits can be made at lunchtime and for breastfeeding purposes. I hope the Minister of State will consider that idea and use his influence to implement such a facility at the earliest possible opportunity.
I thank the Minister of State and his officials for the time, attention and interest they had in this area and the fact that they listened to all our comments. The Minister of State, Deputy O'Dea, said on Committee Stage that he enjoyed the debate. He should be commended because he took on board many of the suggestions made and came back with significant changes.
I welcome the effect of debate on legislation in this House, which is the reason we are all here, particularly the parental leave legislation which was passed by this House. It was the input and suggestions of the female Members of the House that made a significant difference in terms of the practical issues. I thank the Minister of State, Deputy O'Dea, and the Minister of State, Deputy Tim O'Malley, who is substituting for him today.
I am delighted Senator Terry addressed the issue of justice, equality and law reform because creating a framework of support and protection for women and children is vital. We are working to that agenda with the introduction of parental leave, etc, but many more initiatives need to be taken. In coming years I hope to see the provision of some form of parental leave payment. We have brought in parental leave, which is welcome, but we now need to provide for some form of benefit. As with maternity benefit, we should provide for parental leave benefit and I hope our social welfare system will support that in time.
On the area of child care, the issue does not only involve crèches. Many proposals need to be brought to the table in the partnership type discussions that take place. Encouraging job sharing, for example, is a matter for the Department of Finance in terms of revenue taxation or whatever, but we need to put in place the structures and create tax incentives for companies to provide crèches, car parks and so on. I realise it is not an issue for that Department but there is no reason we cannot provide double allowances in terms of payment for job sharing. It is more expensive for employers to have two people doing one job. We need to recognise that in the taxation system and provide incentives. Nothing will incentivise an organisation more than the possibility of reducing costs to provide facilities. Job sharing and special hours for mothers are initiatives that make companies, organisations, semi-State and Government bodies more child friendly and they are vital.
My main issue, for whatever length of time I remain in this House, is the question of maternity leave for politicians. I say again to the Minister and his officials, whom I know are sick listening to me although I make no apology for it, that until women Oireachtas Members at national level, local government members and those involved in politics at all levels have the right to appropriate maternity leave and to have their rights as politicians protected, and until regulations are introduced to allow them cast their votes while on maternity leave, we will never have true equality. That is what this is all about. If we do not believe in equality for the people who are running our country, we are fooling ourselves. There is no equality agenda.
I have had two babies during my time as a Member of this House and on both occasions, on a point of principle and not because I would not have been facilitated – I have no doubt that would have been the case – I did not avail of a right that I did not have. That is not fair. If we are to have any type of equality, it has to start at the top as well as the bottom. I ask the Minister of State to take on board the thoughts we shared with him today in any discussions he might have. The Minister of State, Deputy O'Dea, had the benefit of those on Second and Committee Stages, as did his officials.
I hope that before I leave this House we might see some changes in this area. At that stage I might even be happy to retire and either not have any more babies or stay out of politics – I am not sure which – but I thank the Minister and his officials for their attention and hard work. I thank all the Senators for the progressive, informative and beneficial way we have worked together on this legislation. It is a proud day for this House and I am proud to be part of it.
I thank the Minister of State and I welcome the legislation, which is positive and represents progress. I thank the Minister of State, Deputy O'Dea, and his officials for their work on the legislation. I also thank the Senators present for their contributions, including Senator Henry for her contribution earlier and Senator White for her contribution on the previous occasion. I particularly thank Senator Cox for all her work in this area over the years. She has a good deal of knowledge about the issue, much more than me.
I want to pick up on the point made by Senator Cox about the need for further action in terms of women politicians. I agree with that but it has to be done in a broader context. It has to be about families, which I referred to on the previous occasion. It is not realistic for a woman politician to stop keeping up her profile because she has had a baby. There will be huge demands on her to continue her activities after she has had a baby. Obviously, maternity leave and benefit will be the priority but there should be some other form of leave available, based on maternity leave, which either the father or mother can take at various periods. It would be good, for example, if the husband or partner of a woman politician could take some leave during the period after the birth of a child as it would relieve some of the pressure on her. This is the next area which needs to be developed because we are a long way behind other European countries in terms of leave entitlements for fathers.
We discussed the proposal for a crèche in Leinster House the other day and the issue was raised again this morning by Senator Terry. I made inquiries to ascertain what progress had been made on this proposal, which was supposed to form part of a larger plan to provide various facilities in Kildare House. I understand the matter is now up in the air. While I do not know if they were factual, suggestions were made to me when making inquiries that interest in a crèche facility was insufficient. This is not acceptable. The facility must first be provided before people will avail of it. Crèches should not be operated on the basis that children must always be present. Parents who wish to use the facility should be allowed to do so in the periods they require it.
One does not often see children in Leinster House, yet there are many fathers and mothers employed here – obviously the number of fathers is higher. I am sure many of them would use a crèche facility if it were provided. Given the way in which Leinster House operates and that staff experience the same demands and must work the same hours as Members, the facility should be flexible and available to Members and staff. We should not allow this issue to be put on the long finger. I apologise for not being sufficiently prepared for this debate.
Given that there is not much difference between amendments Nos. 9 and 10, the Government should have accepted my amendment. While I realise and welcome that it accepted the point the Labour Party was making in its amendment, it is as good for the Opposition as for the Government to have amendments accepted. It would have been a welcome gesture by the Government to accept my amendment and, given the similarity in wording, I do not understand the reason it did not do so. Despite this, I thank the Minister of State for accepting the point of my amendment.
I thank all Members, particularly Senators Cox, White, Terry, Henry and Tuffy, for their excellent contributions to the comprehensive debate on the Bill. I am pleased it was possible to accommodate on Committee Stage some of the issues raised by Senators on Second Stage regarding compulsory pre-confinement maternity leave and breastfeeding provisions.
The Maternity Protection (Amendment) Bill 2003 represents a significant development in our maternity protection legislation. Its timing could not be better as it coincides with the highest ever participation of women in the workforce. I understand from recent figures released by the Central Statistics Office that the number of women at work last year was more than 678,000, an increase of nearly 175,000 on the 1996 census figures and more than twice that recorded in the 1981 census.
The provisions of the Bill will, once enacted, strengthen and protect our maternity protection legislation and provide working women with greater flexibility in managing their individual circumstances and achieving a balance between their work and life commitments. I will take on board the points made about a crèche in Leinster House and examine what can be done.
Question put and agreed to.
Sitting suspended at 12.05 p.m. and resumed at 1p.m.