Family Leave and Miscellaneous Provisions Bill 2021
First Stage: 9 Mar 2021
Oireachtas Link: https://www.oireachtas.ie/en/bills/bill/2021/33/?highlight%5B0%5D=family&highlight%5B1%5D=leave&highlight%5B2%5D=bill
Bill entitled an Act to amend the Adoptive Leave Act 1995 to enable a couple who jointly adopt a child to choose which member of the couple is to be entitled to employment leave under that Act for the purpose of the adoption; to amend the Parent’s Leave and Benefit Act 2019 to extend the period to which a relevant parent is entitled to leave from his or her employment under that Act and to extend the period in which such leave may be taken; for those purposes to amend the Social Welfare Consolidation Act 2005 and certain other enactments; to amend the Child and Family Agency Act 2013 to increase the number of ordinary members of the Board of the Child and Family Agency to nine; to amend the Judicial Council Act 2019 and the Personal Injuries Assessment Board Act 2003 to make further provision in relation to the operation of personal injuries guidelines adopted by the Judicial Council; and to provide for related matters.
Committee and Remaining Stages: 22/03/2021
I welcome both Ministers to the House. I reiterate some of the points I made on the first occasion we had Committee Stage, which is to express my regret at seeing unrelated amendments being shoehorned into a Bill. I know that the Minister, Deputy O'Gorman, agreed that it was not ideal. We are all agreed that it is not an ideal situation. This is a Bill that is coming from a different Department. Department of Justice amendments are being inserted into a Bill introduced by the Minister for Children, Equality, Disability, Integration and Youth. The original purpose of the Family Leave Bill was very much welcomed by all of us, but it is utterly unrelated to the provisions we are now dealing with through these Government amendments.
Having said that we are not opposing the amendments. We accept the need for them. The Judicial Council decision to adopt the personal injuries guidelines was made very recently, on 6 March. The Minister, Deputy McEntee, indicated that this appeared to be the next suitable Bill in which to place the amendments. We certainly accept that. However, we believe the amendments deal with transitional matters that could have been put into the original Act had greater thought gone into it. None of the amendments really deals with the guidelines themselves which are not before the Houses. The Oireachtas has in effect already legislated to give effect to the guidelines in section 99 of the Judicial Council Act. In a sense we are not making any substantive changes through these amendments which are purely technical and addressing omissions.
I again put on the record my concern that we are seeing unrelated amendments inserted into a Bill which was self-contained and for a specific purpose. To that extent amendment No. 1, which changes is the Title to the Family Leave and Miscellaneous Provisions Act, would generally be acknowledged as being poor legislative practice.
I make one other point in respect of the changes in the guidelines which are now to be brought into effect. While all of us are very much in favour of seeing premiums reduced and very conscious of the enormous difficulties the high cost of insurance has created for many people, which is the rationale put forward for introducing this legislation, clearly the personal injuries guidelines are very much in the interests of the insurance industry which wants to see the cost of awards coming down. We need to ensure that there is a quid pro quo and that the insurance companies pony up, meaning that we see premiums reduced as a result of this so that the effect is positive for clients of insurance companies. If awards are to be reduced, individuals paying for insurance must feel a benefit. It cannot be one-way traffic on this issue.
I have a question on the wording of the amendments. I know this relates to the later amendments Nos. 5 and 6. I think they are just technical amendments but Nos. 5 and 6 are more substantive, albeit that most of the changes are relatively technical. It is very welcome that provision will be made for those claims currently in being. On amendment No. 5, I have a question as to the wording of the new section 99(a), which substitutes a new subsection in the Civil Liability and Courts Act. It refers to a personal injuries action commenced on or after the date on which section 99 comes into operation. Of course, the whole of the new Part 9 will not come into effect until the Minister for Justice appoints that day. I am wondering about two issues. First, when is the date of commencement likely to be and, second, what is meant by commencement of a personal injuries action? What specifically is the trigger for a personal injuries action to be commenced? The Minister might address that. I presume there will be more detail on those issues, perhaps in regulations, but it will be a crucial issue for those people who have live claims as to whether this Act will apply to them. What is the nature of that prospective effect?
I thank the Minister for her full response. It is helpful to hear the commencement date of the legislation is likely to be soon. I think the Minister said it will be a matter of weeks. It is also helpful to have the Minister's clarification as to who is covered and what is meant by the phrase, "a personal injuries action commenced on or after the date". In respect of the 19,000 claims currently before PIAB which have not yet reached assessment stage, there needs to be utter clarity as to what is the cut-off point. Is there any danger of dragging until this is all brought into effect, to the detriment of individuals before PIAB? I wonder about that. I know it has been flagged for a long time that this will come in.
Like Senator Warfield, I welcome the Minister's point about needing to look at other options if premiums are not reduced as a result of the changes and the introduction of personal injuries guidelines. It is important, as Senator Murphy said, that a message goes out to insurance companies that, as legislators, we agree to these amendments and this new regime in the expectation that insurance companies will do their bit and bring down premiums rapidly as a result.
Senator Murphy mentioned the childcare sector. That sector has been so affected by this, as the Senator said, and we all hear about that. There are many other small businesses and individuals who face hefty premiums and have seen no reduction despite previous changes that have been made. That is an important message we should send out today.
Second Stage: 12/03/2021
I welcome the Minister to the House. On behalf of the Labour Party, I welcome the Bill of which we are very supportive. Indeed, the Bill has cross-party support, which is very welcome. As Senators said, and the Minister has acknowledged, the legislation is eagerly awaited and anticipated, in particular by parents who look forward to parental leave being extended from two to five weeks paid leave and, of course, to the expansion of the category of children who are covered from the first year to the first two years of their lives. Those are very welcome changes. The other changes the Minister outlined are also very welcome. The Bill will rectify, as he said, the anomaly in the current legislation that left married male same-sex couples unable to avail of adoptive leave. Indeed, also welcome is the removal of the presumption that the adoptive mother is the primary caregiver. That is a very positive and progressive change, on which I commend the Minister.
It is unfortunate that we have had a short time to consider the legislation given how recently it was published and the changes made. I wish to express my thanks to the Library and Research Service. I am sure that all of us have found its briefing very helpful. The service has certainly given us a good contextual background. Many of us are very conscious of the background to this legislation.
The Minister indicated that he will table amendments. Perhaps he might clarify whether it will be on Committee Stage in the Seanad or at a later Stage that he will table amendments to bring in the personal injury guidelines. In keeping with comments I and others have made during many debates on legislation, it is unfortunate that we are going to see totally unrelated amendments included in this very important Family Leave Bill. I know that these are pressing matters. We certainly will not oppose the amendments because we recognise their urgency and, indeed, recognise the urgency of this legislation itself. However, as a matter of good legislative and drafting practice, it is not ideal that these amendments would be in a different and unrelated Bill.
Others have pointed out that this Bill is being introduced in International Women's Week. It is an important measure for gender equality although I agree with Senator Pauline O'Reilly's comments that childcare should not be seen as a burden, and nor should it be seen as a burden for women. It is frustrating that that language tends to creep in. We know that across the EU generally, men have a lower uptake of parental leave than women where it is available to both. It is positive that parent's leave is available on a gender neutral basis but we know that men have a lower uptake than women and we might say it is due to the two "Cs". Cash and culture are the two big issues that tend to create a situation where mothers are more likely to take the leave than fathers. The culture is that it is less common for fathers to take leave. The fact that men tend to earn more than women means that it is more of a financial loss, certainly to a heterosexual couple, where the man takes leave and the woman does not. That raises issues about the rate of pay of the leave.
While I welcome this legislation very much, we need to recognise the need for other changes, including a cultural change. I ask the Minister if the Government has a proposal to highlight the fact that this leave will be available on a gender neutral basis, to try to challenge stereotypes whereby childcare is always seen as a woman's responsibility and, in parallel with that, to address the cultural barriers, and the cash barrier, to men taking parental leave. I am very glad that the Minister indicated in the Seanad on Monday that he will be bringing forward the amendments to the gender pay gap information legislation within the next two weeks because that is a real gap in our laws at present. We simply do not have a legislative means for tackling this ongoing issue where women are paid less than men.
I want to address a couple of other issues around family leave more generally. I was recently involved in the Athena SWAN gender equality benchmarking process at third level, in Trinity College. One of the issues that arises across all third level institutions, although it is not unique to third level, is the issue not just of a right of return to work after availing of parental or maternity leave but how employees are treated when they return. That is crucial. We see in academia, for example, a pattern whereby those who return from family or maternity leave, typically women, miss out on promotional opportunities because they lack research time. They are straight back into full teaching and administration loads and they lack the time to carry out the research. Particularly when people are in their 30s is what makes the difference between promotion or non-promotion in academic settings.
That is just one example of a particular workplace setting but, undoubtedly, across different professions, from research I and others have done in law, we have seen the phenomenon of postponed parenting. Women are putting off having children until their career has got to a certain stage but then missing out on promotional opportunities because while rights to return to work are enshrined in law, there is no right to any phased or incremental lessening of duties on return. I put that out there. I am not sure if legislation is the appropriate place in which to make provision for that. There is a real awareness about this in the Athena SWAN charter and a growing tendency now for different institutions to adopt measures to facilitate women returning from maternity leave, or employees returning from parental leave, to buy out teaching time or to make some provision to ensure they have not missed out on promotional opportunities because they took leave. That is about culture also and it is a difficult one to address through legislation.
I want to address the issue that Senator Pauline O'Reilly mentioned. I thank her for expressing her support for a Bill I introduced in the House on Monday, which I hope we will have time to debate over the next month or so. It is a new reproductive health related leave Bill that I introduced having been inspired to do so by the work of Councillor Alison Gilliland and the Irish National Teachers Organisation, INTO. I spoke about this on Monday. This is a Bill to provide, for the first time, specific recognition for those employees who need to take time off work because they have suffered early miscarriage or for other reproductive health related reasons, for example, to undergo IVF treatment.
While our Bill is gender-neutral in its framing, this is a gendered issue because it impacts more upon women. We know from European Court of Justice case law that it is unlawful gender discrimination to discriminate against a woman who has taken sick leave to undergo IVF treatment. The INTO research shows there is a need to give specific recognition to this. We have, therefore, brought forward a Bill to provide for up to ten days' leave for reproductive health-related reasons and up to 20 days' leave for early miscarriage which, prior to the 24th week of pregnancy, is not recognised specifically in law. I ask the Minister to look favourably upon this matter. Senator Doherty has spoken favourably about this principle and we would be very happy to work with the Government in trying to get it into law, as will the INTO.
I very much welcome that we will see provision in law for Ministers to take maternity leave. I do not believe there is any need for constitutional amendment. Article 28.12 of the Constitution gives ample scope for this to be done simply through legislation. This is a progressive step and is in keeping with the spirit of the Bill, which I again welcome.