Wednesday, 2 June 2004
Adoptive Leave Bill 2004: Committee Stage (Resumed).
We had a long debate about this at the Select Committee on Justice, Equality, Defence and Women's Rights when maternity protection legislation was being discussed. I pointed out a difficulty, namely, that if somebody on additional maternity leave went out sick, it would mean, in accordance with the recommendations of the committee's working group, that provision would have to be made that the maternity leave should terminate. It would mean the person would lose the balance of her maternity leave that was not taken. The reason is that European case law provides that if someone is on leave due to pregnancy, she cannot be sacked until such time as that term has expired. If someone who is on additional maternity leave goes out sick, she can stay out of work indefinitely. She can literally stay out of work, sick, for the rest of her life. As part of the maternity leave has still to be taken, technically, she can still be on maternity leave and so can never be sacked.
That does not apply as regards adoptive leave, but I have two difficulties with the amendment. The first is that our objective is to make the adoptive leave legislation mirror the maternity protection legislation. If we were to accept the amendment, there would be a significant difference. Second, the report produced by the working group was "arrangement by consensus", with give and take on both sides. It arrived at a delicate balance. To suggest an amendment along those lines, even as regards adoptive leave, would, in my view, upset the balance. I will now give the Senator the official response.
The proposed amendment is inconsistent with the recommendation of the maternity review group, which this section of the Bill seeks to apply to adoptive leave, in that it removes subsection (4)(b), which requires untaken leave to be forfeited. The review group recommended that:
In the event of illness, an employee should, subject to the agreement of the employer, be able to transfer from additional maternity leave to sick leave. If an employee transfers from additional maternity leave to sick leave, she will forfeit her right to any additional maternity leave not taken at the date of commencement of the sick leave.
That is taken directly from the working group's report. As Senator Tuffy will be aware, the purpose of the Adoptive Leave Bill is to apply the appropriate outstanding agreed recommendations of the maternity working group to adoptive leave. The social partners agreed to a consultation process and it was formally stated in section 12.2 of the Sustaining Progress partnership agreement. It states clearly and unequivocally that the Bill would provide for "termination of additional adoptive leave in the event of illness subject to the agreement of the employer". To move from this would be a significant departure from the package of compromises agreed.
The provision in section 8 of the Bill as regards termination of additional adoptive leave on the sickness of the adopting parent is consistent with the provision of section 6 of the Maternity Protection (Amendment) Bill 2003, which implements the recommendation of the maternity working group as regards this matter. The basic principle on which this section of the Bill is constructed is to provide an employee with the option, if the employer agrees, to terminate unpaid additional adoptive leave in the event of her illness and to benefit from payment in respect of sick leave, depending, obviously, on the sick leave arrangements available under her contract of employment.
I move amendment No. 9:
In page 8, line 48, after "hospital" to insert "or such other date as may be agreed between the employer and the employee".
The purpose of the amendment is to remove unnecessary rigidity in the Bill which requires that where adoptive leave is postponed following the hospitalisation of a child, it must be taken as a continuous period beginning not later than seven days after the child is discharged from hospital. We feel that, in a spirit of partnership, our amendment would allow the parties to be free to negotiate a different date and we ask the Minister of State to accept it.
Again, the difficulty with this amendment is that the maternity working group wanted a situation where the leave would end immediately after the child came out of hospital. In order to provide some flexibility, we managed to get in a period of seven days. However, I believe it would be undesirable to extend it. We have moved from the original position recommended by the working group. To make it longer along the lines suggested in the amendment would leave the question of the additional leave hanging indefinitely. I will give the Senator the official response.
Subsection 9(2)(d) of the Bill provides that the postponed leave must be taken as a continuous period, beginning not later than seven days after the child is discharged from hospital. This is identical to the provision contained in subsection 7(4)(c) of the Maternity Protection (Amendment) Bill 2003. The maternity working group recommended that provision should be made for the postponement of maternity leave in the event of the hospitalisation of the child, subject to the agreement of the employer. It also recommended that postponed leave should be taken in one continuous block when the baby is discharged from hospital. Section 9 applies this recommendation to adoptive leave.
The working group intended that the leave should only be postponed for the duration of the child's stay in hospital and that the employee would retain her entitlement to take the balance of the leave once the child was discharged. It follows that the employee should resume her leave as soon as possible after the date of discharge. Subsection (9)(2)(d), which provides that this leave shall commence within seven days of the child's discharge from hospital, meets this requirement. Senator Tuffy's amendment strays beyond the agreed recommendation of the working group, which appears to meet the needs of an adopting mother who would, in all likelihood, wish to take the postponed leave immediately on discharge of the child from hospital.
I move amendment No. 10:
In page 9, line 24, to delete "his/her" and substitute "his or her".
This is a drafting amendment. We feel it would be more appropriate in legislation to have "his or her" spelt out rather than an abbreviated symbol. I would like to hear the Minister of State's response.
I move amendment No. 11:
In page 12, to delete lines 27 and 28 and substitute "accordance with that section.'.".
We tabled this amendment because there appears to be a strange anomaly in the section which prohibits dismissal of an employee on adoptive leave in circumstances where the purported notice of dismissal expires after the employee's absence. However, it does not expressly deal with the situation where the notice of dismissal expires during the employee's absence. We feel that this ambiguity could best be taken care of by deleting the condition that the notice has to expire after the absence. I would like to hear the Minister of State's response.
Frankly, I did not understand the thinking behind the amendment although the Senator has now explained it. I believe the situation she is worried about is addressed. I will give her the official response and we may discuss it further if she wishes.
The purpose of this section of the Act is to make the employee's job secure while absent from work on adoptive or additional leave. This section of the Bill broadens the existing provisions of section 16 of the principal Act by adding "absences while attending any required pre-placement classes or meetings". The new section invalidates certain actions of the employer where they are done by him or her during an employee's absence on adoptive leave, additional leave or absence from work to attend any required pre-placement classes or meetings. These actions are terminating an employee's employment during the absence or giving notice during the absence of termination of an employee's employment, which notice would expire subsequent to the absence.
Subsections 16(a) and 16(b) prevent two different actions by the employer. Subsection 16(a) prohibits termination during protective leave while subsection 16(b) prohibits a notice of termination being given during protective leave, which becomes effective once the employee returns to work, after protective leave. In other words, if the situation to which Senator Tuffy refers had occurred and the notice expired while the employee was still on leave, that would be covered by section 16(a) because the employer would effectively terminate the employment during the adoptive leave.
I move amendment No. 12:
In page 15, lines 17 and 18, to delete all words from and including "the said section 2(2)" in line 17 down to and including "1997):" in line 18 and substitute "section 2(2) of the Act of 1977, as inserted by the said section 23:".
These are drafting amendments. Amendment No. 12 deals with the point that the wording of the section does not make sense. For example, the reference in line 17 to "the said section 2(2)" is inappropriate because that subsection has not previously been mentioned. The reference to "the Act of 1997" in the Bill as drafted should be to the Act of 1977.
Amendment No. 13 is similar and refers to the same issue.
I move amendment No. 13:
In page 15, lines 33 and 34, to delete all words from and including "the said section 6(2)" in line 33 down to and including "1997):" in line 34 and substitute "section 6(2) of the Act of 1977, as inserted by the said section 24:".
I move amendment No. 14:
In page 16, line 35, to delete "44A." and substitute "45.".
This also relates to a drafting problem. The Adoptive Leave Act 1995 has only 44 sections and if a section is to be inserted after section 44 it should be numbered 45 and not "44A". That is the issue the amendment seeks to address.
When we try to process legislation and publish it as quickly as possible, I am told there are vacancies in the Parliamentary Counsel's office. Perhaps I could speak to Senator Tuffy afterwards about that because she has it right again and I accept the amendment.
I move amendment No. 15:
In page 3, lines 5 and 6, to delete "AND TO PROVIDE FOR CONNECTED MATTERS".
We believe that the sole purpose of the Bill is to amend the Adoptive Leave Act 1995 and that the reference "and to provide for connected matters" is not necessary.
My amendment encapsulates all that I said on Second and Committee Stages. If we are dealing with equality, to which this amendment refers, we should offer and provide full equality to adoptive and natural parents. I requested that we provide leave for adoptive parents, or potential adoptive parents, prior to the placement of the baby. I tabled amendments which the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, did not accept. I concede that probably they were too wide. I will submit more amendments on Report Stage, which I hope will be acceptable, to the effect that we grant equality and recognise that many adoptive parents must travel abroad to visit the place where the child is staying or the people who deal with the adoptions in those countries. Their trips should be recognised in some way.
Babies are born to families in different ways. The easy route is when someone expects and then delivers a baby, and there has been an expectation of and preparation for that event. It is probably much more difficult for adoptive parents to go through that process because their hopes are built up but often dashed too. We should recognise that they must go through a very long process prior to placement of the baby which should be recognised. That must be addressed in the context of equality.
I asked the Minister if he could provide us with the figures for the number of foreign adoptions. While his officials gave us the annual number of adoptions in recent years, they could not provide figures for the number of foreign adoptions. I expect that number to show that many adoptions are dealt with abroad, which will highlight the need to provide time off for parents who must travel to initiate and complete the adoption process.
This point was discussed in some depth the last time we debated the Bill. Senator Terry and Senator McDowell advocated some of the amendments proposed. I note Senator Terry's acknowledgement that the phraseology of the amendments was too wide and, therefore, they needed to be reconsidered.
This amendment relates to equality between adoptive and natural parents but what is being sought would exceed any equality with natural parents. The prenatal leave for natural parents is given on health grounds and is a prudent measure in the late stages of pregnancy. The postnatal leave is to enable the mother to bond with the newborn and adoptive parents are granted an equal period. To give prior leave to adoptive parents does not seem to be the route on which we should embark.
Senator McDowell made an interesting point on this to which I was more sympathetic than to Senator Terry's point, namely, that in many instances the travel abroad involves significant expense. Many who travel are able to fund that from their own resources so it is not an imposition and they are happy to do it. However, people with limited financial resources would find it more difficult to adopt because of the cost involved. Given the increased propensity and need for people to go abroad to adopt, there may be an argument for providing means tested assistance in the social welfare structure for those who cannot fund the trips from their own resources. That would be better than imposing further on employers. Granting leave is not really the issue. The main obstacle for those people in the categories I mention, and to which Senator McDowell referred, is financial. That point is well made and perhaps the Government would consider it in a different framework.
I take Senator Tuffy's point in regard to amendment No. 15. The main objective of the legislation is to amend the Adoptive Leave Act. It has to amend the 1995 Act in any event. However, in the Long Title to a Bill we must describe accurately everything the Bill does, in so far as we can. The Bill before us amends the Unfair Dismissals Act and also the redundancy payments legislation. Therefore, it is necessary to include the term "and to provide for connected matters".
I listened to what Senator Terry proposed and, unfortunately, the advice I received is that whatever about the rights and wrongs of the argument, and I can see the force of it, it would not be appropriate to include in the Long Title a reference to natural parents because the Bill makes no provision whatever for natural parents; it deals exclusively with adoptive parents. As Senator Walsh said, perhaps some other vehicle can address this matter. Senator Terry indicated she would bring forward amendments on Report Stage and we will have a look at them.
Senator Terry also asked for the figures for foreign adoptions. In 2001, of a total of 472 adoptions, 179 were foreign. In 2002, of 602 adoptions, 336 were foreign. The provisional figures for 2003 indicate that, of 604 adoptions, 341 were foreign. I apologise that these figures were not made available sooner.