An Act to implement council directive 96/34/ec of 3 June 1996 on the framework agreement on parental leave concluded by unice, ceep and the etuc, for that purpose to amend certain enActments and to provide for related matters.
"adoption order" means an order under section 9 of the Adoption Act, 1952 ;
"confirmation document" has the meaning assigned to it by section 9;
"contract of employment" means—
(a)
a contract of service or apprenticeship, or
(b)
any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971 , and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),
whether the contract is express or implied and if express, whether it is oral or in writing;
"date", in relation to a confirmation document, means the date on which it is signed by the parties thereto or the later of the dates on which it is so signed;
"employee" means a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment, and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces or a civil servant within the meaning of the Civil Service Regulation Act, 1956 ) shall be deemed to be an employee employed by the head (within the meaning of the Freedom of Information Act, 1997 ), of the public body (within the meaning aforesaid) in which he or she is employed and an officer or servant of a local authority for the purposes of the Local Government Act, 1941 , or of a harbour authority, health board or vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be;
"employer", in relation to an employee—
(a)
means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of "contract of employment" is liable to pay the remuneration of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer, and
(b)
includes, where appropriate, the successor or an associated employer of the employer;
"force majeure leave" shall be construed in accordance with section 13(1);
"job", in relation to an employee, means the nature of the work that the employee is employed to do in accordance with his or her contract of employment and the capacity and place in which he or she is employed;
"the Minister" means the Minister for Justice, Equality and Law Reform;
"parental leave" shall be construed in accordance with section 6(1);
"prescribed" means prescribed by the Minister by regulations;
"successor", in relation to an employer, shall be construed in accordance with section 15(1);
"the Tribunal" means the Employment Appeals Tribunal.
(2)
For the purposes of this Act, two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control and "associated employer" shall be construed accordingly.
(3)
In this Act—
(a)
a reference to a Part or section is a reference to a Part or section of this Act unless it is indicated that reference to some other provision is intended,
(b)
a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended, and
(c)
a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended, whether before or after the passing of this Act, by or under any subsequent enactment.
(4)
A word or expression used in this Act and also in Council Directive 96/34/EC of 3 June, 1996, shall have the same meaning in this Act as in that Directive.
3-
Regulations
(1)
The Minister may—
(a)
by regulations provide for any matter referred to in this Act as prescribed or to be prescribed, and
(b)
make regulations generally for the purpose of giving effect to this Act and, if in any respect any difficulty arises during the period of two years after the commencement of this section in bringing into operation this Act, by regulations do anything which appears to be necessary or expedient for enabling this Act to have full effect.
(2)
Before making a regulation under this Act, the Minister shall consult with persons whom he or she considers to be representative of employers generally and persons whom he or she considers to be representative of employees generally in relation to the regulation.
(3)
A regulation under this Act may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary or expedient.
(4)
Every regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to anything previously done thereunder.
A provision in any agreement shall be void in so far as it purports to exclude or limit the application of any provision of this Act or is inconsistent with any provision of this Act.
(2)
A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by this Act shall be deemed to be so modified as to be not less favourable.
(3)
Nothing in this Act shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision in Parts II to V.
(4)
References in this section to an agreement are to any agreement, whether a contract of employment or not and whether made before or after the passing of this Act.
5-
Expenses
Any expenses incurred by the Minister or the Minister for Enterprise, Trade and Employment in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
Subject to this Act, an employee who is the natural or adoptive parent of a child shall be entitled to leave from his or her employment, to be known and referred to in this Act as "parental leave", for a period of 14 working weeks to enable him or her to take care of the child.
(2)
The entitlement to parental leave shall apply only in respect of a child born on or after the 3rd day of June, 1996, or a child in whose case an adoption order has been made on or after that date.
(3)
A period of parental leave shall end—
(a)
not later than the day on which the child concerned attains the age of 5 years, or
(b)
in the case of a child who is the subject of an adoption order and who had attained the age of 3 years, but had not attained the age of 8 years, on or before the date of the making of that order, not later than the expiration of the period of 2 years beginning on that date.
(4)
A period of parental leave shall not commence before a time when the employee concerned has completed one year's continuous employment with the employer from whose employment the leave is taken.
(5)
Subject to this Act, an employee shall be entitled to parental leave in respect of each child of which he or she is the natural or adoptive parent.
(6)
An adoptive parent who is also the natural parent of the child concerned shall, subject to this Act, be entitled to parental leave as a natural parent, but not as an adoptive parent, in respect of the child.
(7)
Where both of the parents of a child are entitled to parental leave in respect of the child, neither of the parents shall be entitled to the parental leave of the other parent or may transfer any part of the period of his or her parental leave to the other parent.
(8)
Notwithstanding subsection (4), where an employee will not have completed one year's continuous employment with his or her employer on the latest day for commencing a period of parental leave having regard to subsection (3) but has completed 3 months of such employment on the latest day for commencing a period of such leave provided for by this subsection, the person shall, subject to this Act, be entitled to parental leave for a period of one week for each month of continuous employment that he or she has completed with the employer at the time of the commencement of the leave.
(9)
In this section "adoptive parent", in relation to a child, means a person in whose favour an adoption order in respect of the child has been made and is in force.
Subject to this Act, parental leave may consist of—
(a)
a continuous period of 14 weeks, or
(b)
with the agreement of the employer or representatives of the employer and other employers and the employee or representatives of the employee and other employees, a number of periods each of which comprises—
(i)
one or more days on which, but for the leave, the employee would be working in the employment concerned,
(ii)
one or more hours during which, but for the leave, the employee would be working in the employment concerned, or
(iii)
any combination of periods referred to in subparagraphs (i) and (ii).
(2)
(a)
Parental leave taken by an employee pursuant to subsection (1)(b) shall be such that the number of hours during which, but for the leave, the employee would be working in the employment concerned equals—
(i)
the number of hours during which the employee worked in the employment concerned in such continuous period of 14 weeks before the commencement of the leave as may be determined by the employee concerned and the employer, or
(ii)
if the employee and the employer fail to determine a period for the purposes of subparagraph (i), 14 times the average number of hours per week during which the employee worked in the employment in each of the periods of 14 weeks ending immediately before the commencement of each week in which he or she takes any of the leave.
(b)
In determining a period of 14 weeks referred to in paragraph (a), holidays (including public holidays) to which the employee concerned is entitled or days on which he or she is absent from work on sick leave, maternity leave, adoptive leave, or force majeure leave shall be excluded and a corresponding number of days immediately before the commencement of the period shall be included and time spent on parental leave by the employee shall be deemed to be time spent by him or her at work in the employment concerned.
(3)
Where an employee is entitled to parental leave in respect of more than one child and the children concerned are not children of a multiple birth, the period of parental leave taken by him or her in any period of 12 months shall not, without the consent of the employer, exceed that provided for in subsection (1).
(4)
(a)
Where any holiday (other than a public holiday) to which an employee is entitled falls during a period of parental leave of the employee and on a day when (but for the leave and the holiday) the employee would be working in the employment concerned, the holiday shall be taken at such other time as may be determined by the employer concerned pursuant to section 20 of the Organisation of Working Time Act, 1997 .
(b)
Where any public holiday to which an employee is entitled falls during a period of parental leave of the employee and on a day when (but for the leave and the holiday) the employee would be working in the employment concerned, a day shall be added to the period of parental leave that the employee is entitled to take.
When an employee proposes to take parental leave, he or she shall, as soon as reasonably practicable but not later than 6 weeks before the commencement of the leave, give notice in writing of the proposal to his or her employer.
(2)
A notice under subsection (1) shall specify the date of commencement of the parental leave concerned and its duration and the manner in which it is proposed to be taken and shall be signed by the employee concerned.
(3)
Before the date of the confirmation document concerned, an employee may, by notice in writing signed by him or her and given to his or her employer, revoke a notice under subsection (1) given by him or her and, if the employee does so, he or she shall not be entitled to take parental leave at the time specified in the latter notice.
(4)
Notwithstanding subsection (1), where leave purporting to be parental leave is taken by an employee who is entitled to parental leave but who has not complied with subsection (1) in relation to the leave, the employer may, at his or her discretion, treat the leave as parental leave and this Act shall apply accordingly.
(5)
An employer shall retain a notice given to him or her under this section and shall give a copy of it to the employee concerned who shall retain it.
(6)
An employee who has given a notice to his or her employer under subsection (1) shall, if the employer so requests, furnish to him or her such evidence as he or she may reasonably require in relation—
(a)
in the case of a child as respects whom an adoption order is in force, to the adoptive parents, the date of birth of the child and the date of the making of the order, and
(b)
in the case of any other child, to the employee being a parent of the child and the date of birth of the child.
Where an employee has given a notice under section 8(1) to his or her employer, they shall, not less than 4 weeks before the commencement of the parental leave concerned, prepare and sign a document (referred to in this Act as "a confirmation document") specifying the date of commencement of the leave, its duration and the manner in which it will be taken.
(2)
Where leave is treated as parental leave pursuant to section 8(4), a confirmation document in relation to the leave shall be prepared and signed by the employer and the employee concerned as soon as may be.
(3)
An employer shall retain a confirmation document signed by him or her and shall give a copy of it to the employee concerned who shall retain it.
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Postponement, curtailment and variation of parental leave by parties concerned
(1)
Subject to this Act, when a confirmation document has been prepared and signed in accordance with section 9, the employee concerned shall not be entitled to work in the employment concerned during the period of parental leave specified in the document.
(2)
Notwithstanding subsection (1), if, after the date of a confirmation document (whether or not the period of parental leave to which it relates has commenced), the employer concerned or his or her successor and the employee concerned so agree, the leave or part of it may be postponed to such time as may be so agreed upon, the period of such leave may be curtailed in such manner and to such extent as may be so agreed upon or the form of the leave may be varied in such manner as may be so agreed upon, and in such a case the confirmation document shall be amended accordingly.
(3)
Where parental leave is curtailed under subsection (2) or Part IV, the parental leave not taken by reason of the curtailment may be taken at such other time as may be agreed upon by the parties concerned.
Subject to this section, where an employee has given a notice under section 8(1) to his or her employer and the employer is satisfied that the taking of parental leave at the time specified in the notice would have a substantial adverse effect on the operation of his or her business, professional or occupation by reason of seasonal variation in the volume of the work concerned, the unavailability of a person to carry out the duties of the employee in the employment, the nature of those duties, the number of employees in the employment or the number thereof whose periods, or parts of whose periods, of parental leave will fall within the period specified in the said notice or any other relevant matters, the employer may, by notice in writing given to the employee not later than 4 weeks before the intended commencement of the leave, postpone the commencement of the leave to such time not later than 6 months after the date of commencement specified in the relevant notice under section 8(1) as may be agreed upon by the employer and the employee.
(2)
Before giving a notice under this section to an employee, an employer shall consult with the employee in relation to the proposed postponement of parental leave.
(3)
A notice under subsection (1) shall contain a statement in summary form of the grounds for the postponement of the commencement of the parental leave concerned.
(4)
The commencement of parental leave in respect of a particular child may not be postponed more than once under this section unless a ground for the postponement is seasonal variation in the volume of the work concerned; and, where that is a ground for the postponement, such commencement in respect of a particular child may not be postponed more than twice.
(5)
Subsection (1) does not apply to parental leave in relation to which a confirmation document has been signed by the parties concerned.
(6)
If, solely because of the postponement under this section of the commencement of parental leave—
(a)
the child concerned attains the age of 5 years, or
(b)
in the case of a child who is the subject of an adoption order and who had attained the age of 3 years, but had not attained the age of 8 years, on or before the date of the making of that order, the period of 2 years beginning on that date expires during the period of parental leave to which the employee concerned is entitled,
then, the attainment or, as the case may be, the expiration, aforesaid shall be deemed, for the purposes of this Act, to have occurred after the end of the period of parental leave aforesaid.
(7)
An employer shall retain a copy of a notice under this section given by him or her to an employee of his or hers and the employee shall retain the notice.
(8)
In this section, references to parental leave include references to a period of parental leave specified in section 7(1)(b).
The entitlement to parental leave is subject to the condition that it is used to take care of the child concerned.
(2)
Where an employer has reasonable grounds for believing that an employee of his or hers who is on parental leave is not using the leave for the purpose of taking care of the child concerned, the employer may, by notice in writing given to the employee, terminate the leave and the notice shall contain a statement in summary form of the grounds for terminating the leave and shall specify the day (being a day not later than the date of the end of the period of the leave specified in the confirmation document concerned nor, subject to the foregoing requirement, earlier than 7 days after the date of the receipt by the employee concerned of the notice).
(3)
Where parental leave is terminated under subsection (2), the employee concerned shall return to his or her employment on the day specified in the notice under that subsection concerned and any period between the date of such return and the date of the end of the period of the leave specified in the confirmation document concerned shall be deemed not to be parental leave.
(4)
Where an employee gives his or her employer a notice under section 8(1) and the employer has reasonable grounds for believing that the employee is not entitled to the parental leave concerned, the employer may, by notice in writing given to the employee, refuse to grant the leave to the employee and, if the employer does so, the employee shall not be entitled to take the parental leave concerned.
(5)
A notice under subsection (4) shall contain a statement in summary form of the grounds for refusing to grant the parental leave concerned.
(6)
Where an employer proposes to give a notice under subsection (2) or (4) to an employee of his or hers, the employer shall, before giving the notice, give notice in writing of the proposal to the employee and the notice shall contain a statement in summary form of the grounds for terminating, or, as the case may be, refusing to grant, the parental leave concerned and a statement that the employee may within 7 days of the receipt of the notice make representation to the employer in relation to the proposal; and any such representations made by an employee to an employer within the period aforesaid shall be considered by the employer before he or she decides whether to give a notice under subsection (2), or as the case may be, subsection (4) to the employee.
(7)
A person shall retain a notice under this section given to him or her and a copy of a notice under this section given by him or her.
An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as "force majeure leave", where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.
(2)
The persons referred to in subsection (1) are—
(a)
a person of whom the employee is the parent or adoptive parent,
(b)
the spouse of the employee or a person with whom the employee is living as husband or wife,
(c)
a person to whom the employee is in loco parentis,
(d)
a brother or sister of the employee,
(e)
a parent or grandparent of the employee, and
(f)
persons of such other (if any) class or classes as may be prescribed.
(3)
When an employee takes force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave.
(4)
Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months.
(5)
A day on which an employee is absent from work on force majeure leave in an employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeure leave.
