S.I. No. 25/1995 - European Communities (Social Welfare) Regulations, 1995.

S.I. No. 25 of 1995.

EUROPEAN COMMUNITIES (SOCIAL WELFARE) REGULATIONS, 1995.

The Minister for Social Welfare, in exercise of the powers conferred on him by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 92/85/EEC of 19 October, 1992* insofar as it relates to entitlement to an adequate allowance for pregnant workers and workers who have recently given birth or are breastfeeding, hereby makes the following Regulations:

PART I General

1 Citation.

1. These Regulations may be cited as the European Communities (Social Welfare) Regulations, 1995.

2 Interpretation.

2. In these Regulations, "the Principal Act" means the Social Welfare (Consolidation) Act, 1993 (No. 27 of 1993).

3 Commencement.

3. These Regulations shall come into operation on the 30th day of January, 1995.

4 Revocation.

4. The European Communities (Social Welfare) Regulations, 1994 ( S.I. No. 312 of 1994 ) are hereby revoked.

5 Saver.

5. (1) A health and safety benefit which, by virtue of the provisions of the European Communities (Social Welfare) Regulations, 1994 is payable immediately before the commencement of these Regulations, shall, notwithstanding article 4 of these Regulations, continue to be paid for as long as the conditions contained in the said Regulations continue to be fulfilled.

(2) The European Communities (Social Welfare) Regulations, 1994 shall continue to have effect for the purposes of this article.

*O.J. No. L348/1 28.11.1992, p14-20.

PART II Health and Safety Benefit

6 Health and Safety Benefit.

6. The Principal Act shall have effect as if modified by the insertion after Chapter 8 of Part II of the following Chapter:

"Chapter 8A

Health and Safety Benefit

Entitlement to benefit.

41A. (1) In this Chapter—

'confined' and 'confinement' have the meanings respectively assigned to them by section 41;

'relevant period' has the meaning assigned to it by section 18 (6) of the Maternity Protection Act, 1994 (No. 34 of 1994).

(2) Subject to this Act, a woman shall be entitled to health and safety benefit, if—

( a ) it is certified by a registered medical practitioner or otherwise to the satisfaction of the Minister that it is to be expected that she will be confined or that she has been confined, as the case may be, in a week specified in the certificate,

( b ) it is certified by her employer, in accordance with section 18 (2) of the Maternity Protection Act, 1994 , that she has been granted leave under section 18 of the said Act (hereafter in this Chapter referred to as 'health and safety leave'), and

( c ) she satisfies the conditions in section 41 B.

(3) For the purposes of this Chapter—

( a ) any two periods of health and safety leave arising in a relevant period shall be treated as one period of health and safety leave, and

( b ) a Sunday shall not in any week be treated as a day of entitlement to health and safety benefit and, accordingly, the amount payable by way of such benefit for any other day of a week shall be one-sixth of the appropriate weekly rate, subject to the total amount being paid at any time by virtue of this subsection being rounded up to the nearest 10p where it is a multiple of 5p but not also a multiple of 10p, and being rounded to the nearest 10p where it is not a multiple of 5p or 10p.

Conditions for receipt.

41B.—(1) The conditions for health and safety benefit are—

( a ) (i) that the claimant has qualifying contributions in respect of not less than 13 contribution weeks in the 12 months immediately preceding the expected date of confinement or the actual date of confinement, as the case may be, or

(ii) (A) that the claimant has qualifying contributions in respect of not less than 39 contribution weeks in the period beginning with her entry into insurance and ending immediately before the 1st day for which health and safety benefit is claimed, and

(B) that the claimant has qualifying contributions or credited contributions in respect of not less than 39 contribution weeks in the last complete contribution year before the beginning of the benefit year which includes the 1st day for which health and safety benefit is claimed,

and

( b ) that the claimant has prescribed reckonable weekly earnings in excess of a prescribed amount in a prescribed period.

(2) The requirement in subsection (1) (a) shall not apply in the case of a claim for health and safety benefit which is made in a relevant period where the claimant was previously in receipt of maternity benefit under section 37 in that relevant period.

(3) Subject to subsection (4), regulations may provide for entitling to health and safety benefit a woman who would be entitled thereto but for the fact that the condition in subsection (1) (b) is not satisfied.

(4) Regulations for the purposes of subsection (3) shall provide that benefit payable by virtue thereof shall be payable at a rate less than that specified in the Second Schedule, and the rate specified by the regulations may vary with the extent to which the condition set out in subsection (1) (b) is satisfied.

Duration of payment.

41C.—(1) Subject to this Chapter, health and safety benefit shall be payable from the day immediately following the payment last 21 days of health and safety leave in respect of which the claimant is entitled to receive remuneration from her employer under the provisions of section 18 (4) of the Maternity Protection Act, 1994 and regulations made thereunder and shall continue to be payable for the period of health and safety leave granted to the claimant under Part III of the Maternity Protection Act, 1994 :

Provided that health and safety benefit shall not be payable for any day in respect of which maternity benefit under section 37 is payable.

(2) If the woman who is entitled to health and safety benefit dies, the benefit shall not be payable for any subsequent day.

Rate of benefit.

41D.—Subject to this Act, the weekly rate of health and safety of benefit safety benefit shall be as set out in column (2) of Part I of the Second Schedule.

Increase for adult and child dependants.

41E.—(1) The weekly rate of health and safety benefit shall be increased by the amount set out in column (3) of Part I of the Second Schedule for any period during which the beneficiary has an adult dependant, subject to the restriction that a beneficiary shall not be entitled for the same period to an increase of benefit under this subsection in respect of more than one person.

(2) The weekly rate of health and safety benefit shall be increased by the appropriate amount set out in column (4) of Part I of the Second Schedule in respect of each qualified child who normally resides with the beneficiary.

(3) Any increase of health and safety benefit payable pursuant to subsection (2) in respect of a qualified child who normally resides with a beneficiary and with the spouse of a beneficiary shall be payable at the rate of one-half of the appropriate amount in any case where the spouse of the beneficiary is not an adult dependant, and subsection (2) shall be construed and have effect accordingly.

Disqualifications.

41F.—A woman shall be disqualified for receiving health and safety benefit during any period in which she engages in any occupation other than domestic activities in her own household.".

7 Description of benefit.

7. Section 30 (1) (as amended by section 13 of the Social Welfare Act, 1994 (No. 4 of 1994)) of the Principal Act shall have effect as if modified by the insertion after paragraph (b) of the following paragraph:

"(bb) health and safety benefit,".

8 Amendment of Second Schedule.

8. Part I of the Second Schedule to the Principal Act is hereby modified by the insertion after the rates of benefit contained at reference 1 of the following rates:

"1A. Health and Safety Benefit. . .

PART III Maternity Benefit

9 Entitlement to benefit.

9. Section 37 of the Principal Act shall have effect as if modified by the insertion after subsection (1) of the following subsection:

"(1A) The requirement in subsection (1) (c) shall not apply in the case of a claim for maternity benefit made by a woman who was in receipt of health and safety benefit under section 41A at any time during the pregnancy as a result of which it is expected that she will be confined.".

GIVEN under the Official Seal of the Minister for Social Welfare, this 30th day of January, 1995.

PROINSIAS DE ROSSA,

Minister for Social Welfare.

EXPLANATORY NOTE.

The Safety, Health and Welfare at Work (Pregnant Employees, etc.) Regulations, 1994 ( S.I. No. 446 of 1994 ) outline the specific requirements for employers in respect of the health and safety of employees who are pregnant, have recently given birth or are breastfeeding in accordance with Council Directive 92/85/EEC of 19 October, 1992. Where a risk to an employee is identified, the employer is required to provide the employee with other work where protective or preventive measures are not feasible. Where the provision of other work is not feasible, the employer is required to grant the employee health and safety leave under section 18 of the Maternity Protection Act, 1994 .

These Regulations provide for the payment of Health and Safety Benefit, which is a social insurance payment, to a woman, who:

* is pregnant, has recently given birth (up to 14 weeks after giving birth, including a still birth from 24 weeks onwards of the pregnancy) or is breastfeeding (up to 26 weeks after giving birth),

* has been awarded health and safety leave under section 18 of the Maternity Protection Act, 1994 and

* satisfies the contribution conditions, i.e.

— has at least 13 paid contributions in the 12 months before the expected or actual date of her baby's birth, or

— has at least 39 paid contributions since first becoming insured and at least 39 paid or credited contributions in the governing contribution year, i.e, the last complete tax year before the benefit year which includes the 1st day for which Health and Safety Benefit is claimed, and

— has average earnings of not less than a prescribed amount.

Under the Maternity Protection Act, 1994 , a woman is entitled to receive remuneration from her employer for the first 21 days of health and safety leave. Health and Safety Benefit is payable for the remainder of the period of health and safety leave, i.e, until she becomes entitled to Maternity Benefit or for 14 weeks after the baby's birth (26 weeks in the case of a breastfeeding woman) as the case may be. Health and Safety Benefit is not payable for any day on which a woman is entitled to Maternity Benefit and payment ceases if the woman's employment, being for a fixed contract, expires. The weekly personal rate of benefit is £61, increased by £36.60 where the claimant has an adult dependant and by £13.20 in respect of each qualified child.