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Joint Committee on Enterprise, Trade and Employment debate -
Wednesday, 2 Mar 2022

General Scheme of the Right to Request Remote Work Bill 2022: Discussion (Resumed)

The purpose of today's discussion is pre-legislative scrutiny of the right to request remote work Bill 2022, the general scheme of which was recently referred by the Minister for Enterprise, Trade and Employment, Deputy Leo Varadkar, to this committee with a request for pre-legislative scrutiny this month. The Bill aims to provide a legal framework around which requesting, approving or refusing a request for remote work can be based. It also aims to provide legal clarity and procedures to employers on their obligations for dealing with such requests. The committee recently discussed the proposed legislation with officials from the Department of Enterprise, Trade and Employment. Today I am very pleased that we have the opportunity to consider the matter further and the committee members will hear from representatives of IBEC and the Irish Congress of Trade Unions, ICTU. I welcome from IBEC Ms Maeve McElwee, director of employer relations, and Ms Nichola Harkin. I welcome from ICTU Ms Patricia King, general secretary, and Dr. Laura Bambrick.

Before we start I must mention some limitations to parliamentary privilege and the practice of the Houses with regard to references the witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute, by absolute privilege.

Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. If the witnesses' statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with all such directions.

The opening statements have been circulated to all members. To commence our consideration of the matter I now invite Ms McElwee to make her opening remarks on behalf of IBEC.

Ms Maeve McElwee

I thank the committee for the opportunity to address members on the right to request remote work Bill. IBEC has been deeply engaged on the issue of remote working for some time. In addition to the statement I will make today, I have provided the joint committee with a more detailed submission setting out the views of our members on the Bill. We have also provided the Department with detailed submissions setting out the views of our members on the opportunities and challenges presented by remote working. I would be happy to share these further submissions with any members who may be interested.

IBEC and its members recognise the benefits flexible working solutions, including remote working, can bring. Of course, as well as the benefits remote working can bring to both parties, there are complex impacts for individual businesses, not least of which is cost.

It is imperative that a fair balance is drawn between the importance of achieving reconciliation of professional and private life and the need to sustain employment and enhance economic competitiveness. It is also crucial to recognise that while many employers can and will offer remote working to employees, there are some sectors and employers for whom remote working simply cannot be facilitated.

IBEC notes that the draft Bill is just one element of the Government’s broader remote working strategy. IBEC has previously welcomed Government commitments to invest in necessary infrastructure such as remote working hubs, alignment with childcare facilities, and the national broadband plan, as well as reviewing tax arrangements to incentivise remote working. We look forward to seeing further progress on these matters.

While we are generally supportive of the Government’s remote working strategy, we question whether enacting legislation in this area is the most effective way of promoting remote working. Employers are currently facing an unprecedented amount of legislative and policy reforms in the employment rights space. Legislation in respect of statutory sick pay, whistleblowing, the gender pay gap and extended family leave entitlements are all expected in the coming 12 months, and that is nowhere near an exhaustive list in terms of new employment-related regulation that businesses must consider and implement.

Government must consider these legislative proposals in a way that properly takes account of the cumulative cost and burden of administration for employers. Furthermore, businesses and their staff are continuing to learn what works for their sector, and many employers are already iterating on various forms of remote, hybrid and flexible work options. The reality is that offering remote or hybrid working, where feasible, is increasingly a competitive factor and employers will ensure they take the necessary steps to attract and retain talent. We believe that legislating for a statutory right to request remote work at this stage is premature and may stymie the ability of employers and employees to manage remote working in a creative and flexible way. It is undoubtedly the case that remote work in some form will remain a permanent feature of the labour market. However, it would be prudent to take some time to experience the post pandemic workplace before seeking to regulate this area by way of legislation. There is, therefore, a significant question around the necessity to introduce a statutory right at this stage.

If the intention is to provide a framework for employers and employees, then we are of the view that best practice guidance in the form of a code of practice would provide a much more agile and flexible way to address this whole area, particularly in circumstances where there is no one-size-fits-all approach that will work across all sectors. A non-statutory framework, with appropriate Government supports, is likely to yield much more positive support and results.

If this proposed legislation is enacted, it must not be overly rigid or prescriptive. There is no one-size-fits-all solution to managing this issue. Employers across sectors are currently engaging closely with employees with respect to requests for remote and flexible working, and they must be given the space and discretion to continue to do this in a flexible, productive and amicable manner.

IBEC welcomes the broad grounds included in the draft Bill under which businesses may consider applications for remote working. We note the criticism these provisions have received from certain parties. However, it is important to emphasise the need for employers to be given discretion to consider requests for remote working in accordance with their own business needs and objectives.

Quite apart from the suitability of the role for remote working, not all remote working locations will be appropriate for home working. IBEC submits that it is reasonable to expect that employees who request to work remotely can identify a suitable and secure work area which, where necessary, is not too far from an employer’s on-site location. It is the case, however, that there will be cohorts of employees who will find it more difficult than others to identify a suitable work area in their homes. The obligation to ensure a proper and safe place of work, ensuring data security, confidentiality and the protection of intellectual property at a place of work are paramount considerations for employers.

They must be permitted to refuse requests for remote working where there are concerns relating to these issues.

For some employers, the cost implications of granting a remote working request may be prohibitive. This is particularly the case given the general expectation on employers to provide whatever equipment they deem reasonable for employees working remotely. IBEC notes that where remote working is facilitated on a long-term basis, a higher standard will most likely be required to be met to ensure compliance with health and safety, data protection and employment rights legislation. Facilitating remote work may impose a disproportionate cost burden on some employers that they will simply not be in a position to absorb. Again, these employers must be given the discretion to decline a request where the financial position of the company so dictates. We believe the non-exhaustive, indicative list of business grounds for declining a request for remote working included in the draft Bill are fair and objective. In this regard, we note the requirement that a decision to decline a request be grounded in an assessment of business needs rather on other spurious or arbitrary grounds, and we believe this to be appropriate.

We are very concerned by the mandatory requirement for all employers, regardless of size or sector, to have a remote work policy in place and the creation of a criminal offence for a failure to do so. We believe this requirement is entirely disproportionate and is based on a misplaced assumption that the legislation can set out a one-size-fits-all approach to this issue. In addition, this proposal to introduce a legislative requirement to have a policy in place will have a number of unintended consequences. These include driving employers to have the narrowest-possible policy to ensure the number of claims, litigations or employee-relations issues arising will be reduced to the greatest extent possible. If enacted as currently drafted, the Bill would stymie innovation and creativity and certainly would not encourage employers to be as agile or flexible as they otherwise would be.

Remote working poses some practical challenges for employers. Just a sample of some of the questions with which employers are currently grappling include: where equipment or property belonging to an employer is in an employees home, who is responsible for insuring it; how an employer should ensure confidential information is adequately and properly secured when employees have highly sensitive information in their homes; and how an employer should comply with its statutory obligation to record employees’ working time when they are working remotely and thus not clocking in and out of the office. We have requested guidance from the Data Protection Commission, the Workplace Relations Commission and the Health and Safety Authority with respect to how employers can best manage such risks associated with remote working.

Furthermore, the area of health and safety in remote and hybrid working models is very complex for employers to navigate. Employers understand health and safety at work rests with the employer, regardless of whether an employee works remotely. In response to Covid-19 and increased numbers of employees working from home, the HSA published a frequently asked questions, FAQ, document, including advice on ergonomic assessments of an employee’s home workspace, equipment provision and good practice when using digital technologies. IBEC submits that further guidance from the HSA in certain key areas is required as more permanent remote or hybrid working arrangements are put in place. One area where clarity is required concerns work-related accidents that occur at home and, in particular, what exactly is reportable if there is a work-related accident at home. IBEC remains of the view that there must have been a work activity, not just an accident that took place in the home during working time. It is important further clarity be provided by the HSA in this regard, given the extent of an employer’s obligations and responsibilities determines any potential liability that may arise for employers.

Employers recognise the benefits of remote working, not least the ability to attract and retain talent. Nevertheless, the challenges faced by employers go far beyond the need to ensure adherence to employment rights legislation. The cost and administrative burden will be significant. IBEC submits that in order for remote working to become a viable flexible working solution for both parties, detailed guidance and Government supports and incentives will be required, rather than inflexible legislation. The concept of remote working remains an evolving one, the benefits and challenges of which will continue to emerge in the post-pandemic workplace. Where legislation is enacted in this area, it must be sufficiently agile to enable employers and employees alike to reap the benefits remote working can offer.

I thank members of the joint committee for the opportunity to present IBEC’s views on this draft legislation.

I thank Ms McElwee. I now invite Ms King to make her opening remarks on behalf of ICTU.

Ms Patricia King

On behalf of ICTU, I thank the members of the committee for their invitation to contribute to their pre-legislative scrutiny of the Bill, which is intended to deliver a new workers’ right. I am accompanied by my colleague, Dr. Laura Bambrick.

While most jobs require a physical presence in the workplace, as many as one in four workers in employment worked from home during the first lockdown. Remote working has now moved into the mainstream of workplace issues. For the vast majority of these workers and their employers, this was their first experience of remote working, and while it was challenging for some, in the main it has proven to be a success and there is now strong demand to make this temporary arrangement permanent. Remote working has been shown to improve workers’ quality of life and their well-being, and it can benefit the environment and foster rural regeneration. Furthermore, it makes good business and economic sense. Studies have repeatedly found most employers reported productivity either increased or stayed the same over the past two years.

This is why the Irish Congress of Trade Unions and its affiliates were the first to call for legislation on a right to request remote work in summer 2020, bringing us into line with long-established employment law in most EU member states, the UK, Australia and New Zealand. While employees in Ireland have always had a right to ask to work remotely, they have no right to be heard, nor for their request to be given proper consideration, nor to appeal a decision. This legislation is intended to end the fact a request can be ignored by the employer or dismissed out of hand for no good reason. However, as we detailed in our written submission to the committee, which is available to view online, the draft Bill has been stacked in favour of the employer at every turn and is fatally flawed in key parts. It will not deliver what we campaigned for or what it is intended to provide, namely, robust legislation guaranteeing fair procedure and balancing employers' and employees' needs.

In the brief time that remains for my opening remarks, I will concentrate on the grounds for refusal and the grounds for appeal, which significantly impair the usefulness and effectiveness of the entire statutory scheme that has been proposed. Head 12 of the Bill provides that the employer can decline a request for remote working if it is satisfied the request is not suitable on “business grounds”. Thirteen examples of grounds they may ‘’include, but are not limited to” are listed. The head is explicit on this point. The explanatory note states "the phrase 'including but not limited to' is intended to ensure that the list provided does not fetter or confine the definition of ‘business grounds’ ... The list provided is intended by the Department to be purely indicative and not limiting or binding." In essence, the employer continues to be able to refuse a request on any grounds it chooses that relate to the business, including a mere assertion that remote working is not suitable to the needs of the business.

In the UK, the Department for Business, Enterprise and Industrial Strategy is in the process of completing a consultation reviewing its flexible working legislation, including whether the eight business reasons an employer can reject a request remain valid. Six of these eight reasons have been duplicated in the 13 examples cited in the draft Bill under consideration today. Despite a statutory right to request having been in place for all employees in the UK since 2014, it has not brought about the changes intended. We must learn from the UK’s policy mistake and grasp our late-mover advantage. ICTU and affiliates recommend a refusal must be justified on grounds that relate to the real needs of the business and that are appropriate and proportionate having regard to all the circumstances of the business and the employee.

Head 16 confers the employee with a “right to appeal”, whereby a complaint can be made to the WRC on the following grounds: the employer has failed to return a decision within the timeframe in compliance with head 10; or the employer has failed to provide a notice of the grounds for refusal in compliance with head 12; or an employer’s notification under head 9 was given in circumstances that did not satisfy the requirements of head 9(1) or (2). A major omission from this head is any provision providing that an adjudication officer can hold that a refusal of a request under the Bill is unreasonable, or was not justified on objective grounds, or was not proportionate in all the circumstances. The head is explicit, however, on the grounds for appeal. The explanatory note states:

For the avoidance of doubt, it is noted that the right to make a complaint to the WRC under this Head is not intended to extend to a right to complain in respect of the substance or merits of an employer’s decision to decline a request under Head 12(1). The right to complain only extends to a failure to effect notice of the reasons grounding that declination as required under Head 12(2).

In effect, the proposed legislation will only allow for a complaint to the WRC on procedural grounds. ICTU and its affiliates are strongly of the view that an appeal to the WRC taking issue with the substantive decision of the employer must be provided. Without this, the proposed legislation is utterly pointless. Furthermore, there is no provision for a complaint that an employee was penalised, victimised or discriminated against as a result of having requested, appealed or engaged in remote working. It should also be noted that the proposed limit of 4 weeks pay, by way of compensation, is wholly inadequate and completely out of line with the limit of 104 weeks that is available under most existing employment legislation.

It is important that I correct the conventional wisdom that businesses are ahead of Government on this and have put or are in the process of putting in place company policy on remote and blended working arrangements. This does not tally with what we are hearing from union representatives on the ground. Their experience is of employers reluctant to engage until this legislation is enacted. ICTU and affiliates are urging this committee and all Members of the Oireachtas to work with trade unions and the Government in getting this legislation fit for purpose and enacted without delay to ensure the gains from remote working are not lost. I thank members for their attention. We are happy to take any questions.

I thank Ms King. I invite members to discuss the general scheme with the IBEC and ICTU officials. I ask members not present in the committee room to use the raise hand function in Teams. We have a rota system under which Deputy O'Reilly is first. She has 14 minutes.

I thank the Chairman. I thank the officials for attending and for their submissions. I have a couple of questions. My first is to Ms McElwee. The IBEC submission refers to potential costs for employers and the grave and serious fear it has this is going to run out of control. I come at this from a different perspective, which I am sure will be no surprise to anyone listening. I raise the potential benefits. There are massive benefits. In addition to the specific benefit to the individual, we might look at the benefits in a climate change context of people commuting less. We know there are huge benefits that extend beyond access to a form of work-life balance, etc. From reading the IBEC submission I would not be convinced Ms McElwee and her colleagues see any benefit at all from it. Does they not see there are also savings for employers in this regard? I can see huge benefits in this and I have spoken to workers. In the ICTU submission, a myth has been busted regarding what employers are actually doing at the moment. My questions are simple. There are saving and benefits for employers and that does not seem to be reflected in the IBEC submission at all.

Ms Maeve McElwee

I thank the Deputy for her question. First and foremost, the vast majority of our members are indicating to us they intend to continue with remote and hybrid methods of working into the future. They definitely see the benefits. Even before the pandemic hit, we had already seen quite a significant move towards more remote and hybrid working on an ongoing basis. Employers recognise the benefit to themselves. Especially where we look at trying to draw and attract talent and particular skill sets into our businesses and industries, the opportunity to be able to look at a wider market, to be able to identify people who are not within necessarily within the immediate vicinity of the office or environment in which we are working is an enormous benefit. It also means that we have lots more individuals in the labour market who potentially are not now participating but are much more open to participating in remote or hybrid settings. Employers absolutely see the opportunities. Lots of employers are looking at how they might resize some of their working spaces and environments. That also provides some opportunities. It is fair to say business and employers see the opportunities and the cost savings for themselves and for their own employees directly.

The purpose of this morning was maybe to focus on the issues relating to the general scheme. There are undoubtedly challenges for employers within that because there are very considerable costs that arise. These are not just the direct costs but the potential responsibilities that fall on employers. It is the scale of the fines relating to data protection. It is the scale of the risk around cybersecurity. It is the risk that arises with very prescriptive legislation where there are challenges around occupational health and safety, accidents in the workplace, insurance queries and all sorts of equality issues that may arise. We need to focus on these. It is not in any way that we do not see the benefit. Lots of employers absolutely see the benefit and the cost benefit. It is the scale of the financial liabilities we also need to consider as we look at the development of legislation around this.

Of course there must be some form of balance but, with respect, there is no balance in the IBEC submission. It is all, I would have thought, fairly negative towards what has been done so far. I add that what has been done so far is, in the eyes of most people, actually quite prohibitive and is not in any way, shape or form going to deliver the right to remote work that people want.

I refer briefly to the ICTU submission. Ms King said that in Britain all they saw was a 4% movement in their legislation. Would she be in favour of setting a target in that regard, namely, a target for numbers who have actually moved and that that would be a reasonable assessment by which we could judge the success or otherwise of this. That is the first question.

With the civil and public services, where the Government has an opportunity to, as we might say, put its money where its mouth is, and lead on this, would ICTU be in favour of those targets being set? In the event of targets being set - and I am aware there are some there at the minute - should they be ambitious, or more ambitious? Should we see some leadership, even ahead of this legislation coming in, with the civil and public services?

Ms Patricia King

I thank the Deputy. The usefulness of any piece of legislation when it is enacted can be measured by how many people are using it and how successful it is in the change it purports to achieve. You can see in the UK legislation that has not been great but there are much more fundamental things that need to be considered outside the targets. It is pointless saying to an employer you can refuse it on any grounds you like and then an employee says I disagree with you and think you are being unreasonable and the piece of legislation before us says you cannot take that and have any appeal on it. What we are looking at is useless in terms of an employee. The proposed legislation is giving every ground an employer can put forward as a reasonable reason to reject the request. That is as good as having no right to request it, if employers can refuse it on any grounds and that is what the current legislation says. When you take that position and the employee feels it is unreasonable, he or she then goes to the WRC and cannot cite the grounds for the refusal other than just three technical things.

The legislation we are looking at is a real missed opportunity. There is no hope of reaching any target because nothing will change. From our point of view, we must grasp this opportunity and move progressively into the new world of working post pandemic. That is not to say we should not have the interests of both the business and the worker in mind when putting legislation together. Of course the legislation has to be balanced. However, it is so unbalanced at this stage that it can only be described as useless. Neither of those provisions, as set out in the Bill, will improve the position of any worker seeking remote working. The only thing that will come of it is that workers might be heard and employers might have to listen but, other than that, employers face no obligations.

To continue on that, I agree with Ms King 100% that the legislation, in its current format, will not work for anybody. It is literally a tick box for employers. If they had no imagination at all, they could just read out the lines in the legislation as a mechanism for refusing requests. We know that, but when we are talking about making it fit for purpose and when Ms King is talking about increasing the number of grounds on which to base an appeal, in what direction should we be pushing the legislation? Obviously, I have ideas, many of which are born out of experience while others I developed from consultation. From Ms King's perspective and with a view to ensuring that balance, how should we be directing this legislation? If she would like to be prescriptive, is there a country that has already done this to which we could point and whose model we could replicate? Should we try to be leaders - God forbid - and get this absolutely right and see it delivers for everybody?

Ms Patricia King

We do not even have to look at other countries, although doing so is usually an interesting and fulfilling exercise. We only have to look at our own legislation. The Protection of Employees (Part-Time Work) Act 2001 and the contract Act contain objective grounds. We do not have to rob anybody else's ideas. We already have employment legislation that includes such provisions. Employers are therefore already obliged to show that certain decisions were based on objective grounds. At the moment, decisions under this legislation are completely subjective and there is no right to appeal a decision on the basis of the grounds used. With regard to the Deputy's question on targets, she is probably more positively disposed to this legislation than I am because I do not believe any targets would be met. The question would not even arise because no one would use the legislation. Why would they? It is nonsense. It is an awful pity it is nonsense and there was no consultation with us where both employers and trade unions representatives could have-----

If I came across as being at all supportive of this Bill, Ms King has misunderstood me. I note Ms King referenced the campaign of the Irish Congress of Trade Unions in this regard. Has the engagement to date involved engaging with Government, Government Deputies, Government representatives or representatives from the Department? What response did ICTU get during that engagement? Is it the case the Bill was already written? I know submissions were asked for but was there any face-to-face, or screen-to-screen, engagement?

Ms Patricia King

The level of consultation was as follows. Through the Labour Employer Economic Forum, we put forward our view on remote working since 2020. We then publicly campaigned for the right to request it. At least three times the Minister in charge said, through the Labour Employer Economic Forum, that he was disposed towards putting forward legislation. We had a general discussion about that on three occasions. There was then a public consultation, in which we took part in the same way as everybody else. At the last meeting of the Labour Employer Economic Forum on 10 December, the Minister told us the heads of a Bill would be published in January. He did not share those heads with us so we had no idea what was in them, nor was there any disclosure at those meetings as to what would be in the heads of the Bill. When we saw those heads, it was the first time we knew what was intended with them. That is why it was so disappointing.

As the Deputy will know herself from previous experience, and as Deputy Bruton will also know because he participated in the process, it used to be the case that potential legislation was the subject of separate discussions with employers and trade unions. On some occasions there were joint discussions, but these were not held that often. We would be asked for our views on legislation and would engage with officials from the Department and share strong views, particularly on certain aspects of proposed legislation. To give the Deputy an example, we did that when the Bill on zero-hour contracts, which aimed to provide the flexibility needed to comply with the directive on transparency and so on, was going through. We had hours and hours of discussions on that. We did not get the Department to accept everything we wanted it to, but we at least had engagement. It is an awful pity that, on proposed legislation as important as this Bill, we did not get that opportunity because the Bill would have been much more fit for purpose had we done that.

I agree with Ms King. My time is up so I will be very brief. To be very clear, what has been lacking from the very start has been meaningful input on behalf of the people the sponsoring Minister tells us will benefit from the Bill. In truth, there can be no benefit from it in its current format. Ms King would probably agree with me that the lack of engagement and the failure to listen to the worker's voice is the reason for that. I apologise; my time is up. I will have to leave before the end of this meeting as I have to speak in the Dáil Chamber in a while.

I will share my time with Deputy Flaherty. I thank Ms McElwee and Ms King for their presentations. They both raised valid points and concerns. I note that Ms King said that union representatives on the ground are advising employers who are reluctant to engage until legislation is implemented. Will Ms King expand on that? As far as the Irish Congress of Trade Unions is aware, has it been the norm since the lifting of Covid restrictions for employees who have been working remotely to return to their workplaces and no longer work remotely at all?

Ms Patricia King

I thank the Senator for the question. There are a few things to say here. One is that we have had feedback, much of which has come from the private sector because, as the Senator will know, in the public sector there is a phased return under way at the moment, which means people are taking part in arrangements for a phased return and there are discussions ongoing with the employer with regard to various aspects of that return, including remote working. However, this has not been conceded. I imagine the public sector employer is awaiting the progress of the legislation. That is an impediment. We are getting strong feedback from those workers that they want productive legislation that allows them to seek and, in reasonable circumstances, get a right to remote working.

On the private sector side, we have received feedback from our private sector committee suggesting there is a strong interest in this. The Senator will probably have picked up on this himself. Workers will vote with their feet on this, whether they are organised or unorganised. The labour market is tight and workers are going to have their own conditions with regard to seeking and finding jobs. The tables have turned a little bit. It is now not all about what the employer wants. Because of the tight labour market, workers have a different context and background. Their views as to what they want for work will have to be taken on board. Remote working during the pandemic has proven the value of such practices to people. It is very valuable to workers who can do it. That is not meant, in any way, to discount the pieces the employers have set out here this morning. There are issues that need to be answered.

We are not against having all those issues dealt with. We are not closed to it but there has to be a reasonable outcome. There should not be barriers to progressive legislation that allows workers to request and achieve remote working.

One aspect I have not seen raised much is the significant knock-on impact remote working will have on city centres and inner cities in particular, where businesses rely on footfall for their custom. I see it in my own city of Galway. Retail businesses are already trying to fend off increasing challenges from digital giants, of which we are all aware. Fewer people in city centre areas will also significantly impact the hospitality sector. Those two sectors employ around 500,000 across the country. Has IBEC considered this?

Ms Maeve McElwee

I thank the Senator for the question. It is certainly an issue that is very alive in the minds of employers. It is entirely separate from this legislation but of course we have seen the very challenging impact Covid has had on our city centres and towns over the last two years. However, it has also added some vibrancy into our rural areas and that is to be welcomed. We want to have a strong and attractive economy and be a destination of choice. What lots of people look for when they travel and work abroad or are developing their careers is those high-density cities and towns where there are lots of opportunities and places of work. Having those strong and vibrant cities is very important and having people working on site at least some of the time is an important aspect of that.

The situation seems a bit ridiculous. As I said previously, this should be a good news story but it is not at that level yet. I do not understand why small cafés and restaurants would be required to have a remote working policy when it is not viable or feasible for them to offer remote working. I raise the matter of work-related accidents in the home. As an employer, I am well aware of this issue. My concern is the implications for employers and who determines where the liability is. I ask both Ms King and Ms McElwee to comment on that.

Ms Patricia King

It is not beyond any of us to adjust or amend the Safety, Health and Welfare at Work Act 2005, if needed, to take account of a new exigency in relation to work practice. There is nothing unusual about that. There is also nothing unusual about having a dialogue between stakeholders on that and finding the proper and most appropriate solution to it. I do not regard any of those things as barriers. Whether we like it or not, there are going to be some seismic changes post pandemic in the way our economy is structured and we are going to have to deal with some of the issues the Senator raised, such as issues around city centres, and face up to them. There are going to be changes and it is not going to be as it was before. Even from a spatial point of view, the Government had proposals for 2040 regarding building and expanding areas in which people could work and live and have essential services provided to them. We were very positively disposed towards all of that as it would be a holistic way of living. If people had children in school, their education could be adjacent, rather than 1.2 million people arriving on trains, buses and cars into the city centre of Dublin every day and doing the reverse in the evening, or getting up at stupid hours to get on trains and leaving children in crèches at 6 a.m. or 6.30 a.m. That is not a holistic way to live life. To be candid, there were not many positives from this pandemic but one of them is lifting the veil on some of that and showing what can be done. That is not to say that everything I want will be conceded or that everything the employers want will be either. We need a balanced approach. We have always succeeded in doing that in the past so I cannot see why we would not be able to do it this time.

We are strong supported of the proposition regarding the workplace hubs. The Minister is right to promote it and she was quite speedy in presenting her proposition on that. I believe they should be developed and they are one part of the answer to this remote working piece.

Ms Maeve McElwee

We agree with the Senator regarding every small business needing to have a policy in place. It does seem entirely disproportionate. There are many very small employers and businesses where there is no reality to people working remotely because of the nature of the work they provide. To make it a criminal offence to not have a policy in place that would be reissued every 12 months seems disproportionate in the extreme. I agree with ICTU on the issue of health and safety. We have sought more clarification on a number of occasions around the issues that will pertain to home working and the obligations and responsibilities on both parties in that case. It is very important that we get more clarity on that before we finalise this legislation. Those pieces are particularly important.

On a point of reflection, if we told people three years ago that we would be having this conversation now and asked them to hazard a guess as to how far we have come in with remote working, I think they all would have looked on incredulously. I agree with Ms King that one of the few positives of Covid is that it has shone a light on the challenges people face, particularly in rural Ireland, with regard to long commutes and the opportunities available through remote working. In many senses this is a good news story. It is a good opportunity for employees but also for employers. In the main, employers have embraced this positively and have engaged with the process. I ask Ms King to reflect on her private sector committee, which she mentioned briefly already. What are the stumbling blocks and big issues that are being reported back there? Where does she she those stumbling blocks, bearing in mind, as she rightly says, that there has been a partnership approach between the trade union movement and employers. At the end of the day, we want to help get employers there. Where does Ms King see the challenges? What do we need to do to help those employers?

Ms Patricia King

I thank the Deputy for the question. The biggest issue is that we have to get the protection in the legislation. Workers want to be able to avail of this and they want to be able to ask but they do not want to be "afraid" to do that and they do not want their request to be declined. If they come to a place in their own circumstances where they want to make this application, they want to feel they have a good chance of it being conceded. At the moment, that is not the context or the backdrop within which we are working in certain industries. As the committee will know, some of the bigger players in our economy in some sectors have been progressive and have moved forward but-----


We have lost Ms King.

Ms Patricia King

Some employers are not coming forward with ideas and propositions. Workers are not picking up that there would be a positive response to an application. In those circumstances, there is a fear that if they make the application, they will be refused. It is, therefore, important that we have the backdrop of legislation which allays those fears. Our point at the moment is that this proposed legislation is not going to reduce that fear. That is what we need to do. If legislation took account of the objective grounds and stated that if an employer refuses to grant it, that decision can be appealed, we would have a far better pitch that would assuage the fear of employees. There is no point in me saying that some progressive employers are in favour of this and, because of their own interests, likely to concede remote working. That is where they will build their own policies.

In the private sector, where workers are organised and represented, and a collective agreement can be built, they can make arrangements themselves collectively with their employers and this is how they will handle the prospect of remote working. There are swathes of the private sector that are not organised. As the committee knows, collective bargaining is not recognised.

I am going to interrupt. I apologise to Ms King but I am conscious that I only have a few minutes. I thank her for her response.

The Deputy would want to be very brief.

That is grand. I will turn to Ms McElwee. I know employers are doing an awful lot to make this work and I agree with Senator Crowe that this is not a realistic or attainable goal for some employers. We need to make some provision in the legislation for those employers.

The Deputy is way over time. If he has a question, he should ask it.

It is fair to say, that in the main, employers are enthusiastic and embracing this concept. Would Ms McElwee agree?

Ms Maeve McElwee

I would agree. We are hearing that in feedback from our own members and across the board. To the point Ms King raised, in a tight labour market, employees have many options and employers that are keen to recruit and retain talent have seen opportunities. Very few employers see the opportunity of fully remote working but they see great opportunity around hybrid and blended working in the longer term. We are seeing significant moves where it is practicable and sensible to introduce more remote working.

I thank our guests for their presentations. I welcome the publication of this legislation and introducing it swiftly is the right thing to do. It is, however, disappointing to find that the two sides are so far apart, with IBEC stating that no legislation should be considered at all and the Irish Congress of Trade Unions, ICTU, stating the legislation is useless. I see our role as trying to find a middle way to make this legislation meaningful but also to take account of the concerns that may exist in some reasonable and proportionate way. I will ask both parties if we could proceed by way of the Workplace Relations Commission developing a code of practice? That might be a way to explore some of the difficulties that have been put up on the employers' side as being major obstacles that we should not be trying to address in primary legislation. Could we evolve a code of practice which would then become relevant where an employee feels an employer unfairly failed to respect the code in respect of the employee's particular circumstances? That would give some flexibility, rather than trying to enshrine in primary legislation a set of tests or criteria which I think we cannot do in the time available to us. That is my primary question to both sets of witnesses.

IBEC has raised many issues that I understand the principles of. There are issues around data protection, intellectual property, IP, confidentiality, insurance, working time directives, and health and safety. We are now two years into using these practices and while there may be issues to iron out in health and safety, and in some of these codes, has a fair amount of evidence built up as to how employers have, in practice, overcome the issues of insurance, data, IP or confidentiality? We should not be putting up ab initio arguments when we are already two years into using these practices in many workplaces. Can we drill down to a few net issues that need to be resolved from an employer point of view? IBEC and ICTU recognise that health and safety needs more work. Can we identify a few net areas where more work could be done which would, in turn, inform a code which could be drawn up by the Workplace Relations Commission?

Ms Patricia King

Perhaps I can respond to the question on a code of practice. A code of practice does not have any enforceability. It is what it says it is. A code of practice can possibly highlight best practice and both parties can probably agree what best practice would look like. That is all it does. It creates a set of principles that suggest what should be done to do a job right from the perspective of both worker and employer. However, it has no further significance. It is not going to allay the fears of those workers whose position I outlined in response to Deputy Flaherty. It is not going to allay those fears at all. Therefore, in my judgment, it is not the route to go. There is a provision in the Act whereby the Minister can put forward a code of practice if he wants to. That probably relates more to the development of a remote working policy. There is a requirement in the proposed Bill for employers to publish their policies. I presume the code of practice was to assist consistency in that. Other than that, the answer is not a code of practice. I am clear on that.

Ms Maeve McElwee

As we set out in our opening statement, we feel a code of practice might be a useful way to address some of these issues. The scale of the differences across sectors and industries means this will be a legislative challenge. We have already seen that in the ability of employers to set out different types of business cases that the legislation is already trying to recognise. A code of practice might give us some more flexibility in dealing with that. A statutory code of practice would have significant standing. We have a number of statutory codes of practice that have significant standing within our employment rights framework. It can be linked to legislation, in that failure to comply with the code of practice could be relevant to an adjudicator's decision, which could make it an effective mechanism for dealing with some of the challenges.

I will also comment on the issue the Deputy raised around the fact that we now have two years' experience. He was asking if we are raising issues that have already been dealt with. It is important to point out that many of these issues have not yet been dealt with, which is a point I have made on many occasions. Over the past two years, we have had the overarching obligation, first and foremost, to manage public health and to address issues of public health and safety. That has been paramount, above all other considerations, as was right and appropriate in a pandemic situation. Employers and employees have tolerated situations that are less than ideal and that have created significant risk for many employers but because of the overarching public health issue, we have supported that.

As the members are aware and as I am experiencing myself here today, there are challenges around broadband and connectivity that continue. Many employers have tolerated that because there has been no option and it has been the safer option to deal with reduced quality in terms of connection than to have people come into the office. We have tolerated significant challenges around data security and privacy. We know that when we look at younger cohorts of workers, many of whom are living in shared accommodation, we are going to need to dip into very significant privacy issues around dealing with some of these questions that will come up, such as who they share their home with, where they lock away information, and whether others in the home also have rights to work remotely. We will deal with questions such as how data are secure, for example, when a person works for one of the big legal houses and the person her or she shares his or her home with works for its biggest competitor. We will deal with questions of whether conversations are overheard and how a worker can be sure that he or she has not inadvertently left a document on the table at home. There are big issues for employers to consider. They have not been worked out in any way. We have not, in any way, worked out the issues around occupational health and safety or how they arise. We have not worked out, in any way, how we provide adequate support for people with mental health difficulties and how they operate in the isolation of remote working. We certainly have not dealt with any of the issues around cybersecurity. We have tolerated situations where it was more important to protect public health and to make it work than actually focusing on long-term situations where employers bear the overall responsibility and the fines for any of these breaches. That still needs a lot of work and perfecting before we go down the line of this type of legislation. I want to put on the record that it is absolutely not settled yet. We know that people can all work remotely. We have very little experience of how people work in a hybrid environment. We certainly do not have the investment required to say that this will work positively in the long term.

I wish to come in briefly to suggest the following. If we have legislation to ensure it is a statutory obligation to have a policy and for employers to behave reasonably, and if a code of practice is developed by the Workplace Relations Commission, which may be relevant to adjudication, so we are therefore moving beyond the existing scope of adjudication in the Bill to test something with reference to this code, would that not be a significant strengthening of this legislation? I believe it would.

Ms Patricia King

Ms McElwee and I know that codes of practice, even with statutory provision, are just that. All codes of practice mean is that if a person takes a case, cites the code of practice and the adjudicator in the WRC looks at the code of practice, they may very well tell the employer that it has not complied with it. When it suits the employer, it will argue that it did not have to because it is only a code of practice. That is the answer to that. Codes of practice fall on their feet. They do not stand up to robust opposition. That is the reality. If they did, they would be used a lot more than they are currently. In a situation where we need to have a legislation that states that a worker can request remote working and that the refusal has to be on objective grounds, if it is left freefall and open for an employer to pick whatever ground it likes and that cannot be appealed, it is of no meaningful assistance to the worker who wants to achieve home working. I understand that Ms McElwee has gone into great detail on some of the issues that might arise. However, some of the issues that she cited might arise whether a person works from home or not. For example, if a person is a professional working in a legal company and has to read papers for the next morning, he or she could take them home to read at night and could inadvertently leave them on a table. A person does not have to be working from home for breaches of confidentiality to occur. There are lots of circumstances around everybody's work that can present those sort of risks.

I appreciate that. Our time is limited and Deputy Stanton has to come in.

I will be brief. I wish to raise a few issues. I have had a look through some of the examples that the Department provided with respect to what happens in other jurisdictions. It seems to me that the right to request remote working is basically it, and that from what I can see, this legislation is on a par with that is already in place in other jurisdictions. One of the core issues that Deputy Bruton touched on a bit is the right to go to the WRC and what the WRC can do. Specifically, it is about whether it can adjudicate and decide on procedural issues or on a substantive issue. I ask Ms McElwee the following. If the WRC was given the power to adjudicate on the substantive issue as to whether a right to remote work should be granted in the first place, would that give clarity to the whole situation?

I have a question for Ms King. With respect to what they do in New Zealand, if a person has the right to work from home and the employer is responsible for the health and safety, should the employer have the right to, somehow or other, either remotely or in some other way, inspect the workplace or work location? It seems to me that it could be the case that a person is working from home and the employer is responsible for the worker's safety, yet the employer cannot gain access because it might be a worker's private residence. Has Ms King thought how that might be dealt with in any way?

I note that there is an internal appeals procedure. Within two weeks of the start of the internal appeals procedure, a claim can be taken to the WRC. In Ms King's view, does that mean that there could be two processes ongoing, an internal appeal and the WRC procedure, at the same time? Would it not make more sense of the internal appeal procedure was finished first? If it reached some kind of agreement in that way, there would be no need for the WRC claim. I will finish there and perhaps come back in later.

Ms Maeve McElwee

I can answer the Deputy's first question around whether the issue would be resolved by the WRC having the ability to conduct a substantive investigation. The challenge there is the whole issue of how the WRC would actually manage to investigate that. The important thing here is that an employer is seen to give appropriate and adequate consideration, and that in line with all best practice and with the legislation, they have considered all of the angles and give a reasoned response to an employee as to why that request is being refused or perhaps being offered in a different format. For the WRC to investigate, we are really looking into very substantial challenges for employers. In many ways, with issues that are so significant, it would be very difficult for the WRC to actually determine at the individual level of a practice at an operational level, whether that person is critically needed. We could spend huge amounts of time and WRC resources trying to identify all of those different reasons why it might be necessary for one person in a particular role to have either on-site or a different type of-----


Ms Maeve McElwee

It would take up a huge amount of resources. It is reasonable that a very strong business case is set out and a reasoned response given. In relation to on-site inspections, it is really important to state that there are challenges for employers that we would love to see more clarity from the Health and Safety Authority, HSA, on this point. There will be people working alone in their homes. Sending in inspectors to identify risks and any of the normal ergonomic considerations that employers are obliged to undertake is quite challenging. Issues include the cost and the geographic distances that may have to be covered. There is also the reality of people working alone and having strangers moving around their homes, which throws up lots of other considerations for employers. Briefly, on the last issue raised by the Deputy on the two processes ongoing, we think that it does appear that there are two processes ongoing.

We would prefer to see that any policy would have a reasonable timeframe in which an appeal should be heard after which point, consistent with all other pieces of legislation, an external appeal could go forward as opposed to two weeks into an internal appeal process that may well resolve the issue.

The next member to have indicated is Senator Sherlock.

I thank Ms McElwee and Ms Harkin from IBEC, and Ms King and Ms Bambrock from ICTU for attending this session. In the Labour Party, we are extremely clear that we need to build towards a right to flexible working in this country. We agree with ICTU in that we need robust legislation guaranteeing fair procedure and that we ensure a greater balance between employers and employees.

I refer to the detail of the submissions and direct my questions to IBEC first. I hear that employers have concerns and we need to understand those. I agree that we need updated guidance from the Health and Safety Authority on the ergonomic suitability of workplaces and such issues. However, I refer to three other issues Ms McElwee raised, which is the insurance of equipment within a person's home, clocking in, and digital security. We are 24 months on from when thousands of workers were forced into working from home. Is IBEC suggesting that employers are only beginning to grapple with these issues now? They include vital issues of insurance, clocking in and that employers have not been putting software in place to ensure working time is recorded. With regards to digital security, I find it hard to believe that employers have allowed a Wild West scenario with regards to digital security systems in place for their workers working remotely. From what I hear today, these are concerns IBEC is raising now with regard to remote working. Is IBEC saying that these are issues that have not been dealt with in the past two years?

Ms Maeve McElwee

No. We are not saying these are issues that have not been dealt in the past two years. In fact, we have been saying this for at least two years and we were saying it pre pandemic as we were looking at more organisations moving to remote working. However, they are big challenges to grapple with and it takes employers time to work them out. When we talk about the scale of remote working and the fact that we have recognised it is possible, we are saying some of it is possible and some of it will absolutely remain longer term; a lot of what happened would not have been done with the blessing of employers in the absence of the public health guidance and advice. It is certainly not a Wild West of cybersecurity. Employers have been investing significant amounts in managing cybersecurity, but it is a fact that where we have challenges around networks and connectivity, and challenges around where people are actually working from, they open up avenues of additional concern for employers and they need to be taken care of.

Insurance of equipment continues to be an issue. Everybody has operated within a pandemic environment for two years, including our insurers, employees and employers, and we have looked at this as being temporary, albeit that its temporary nature has been extended. When we start to look at permanent solutions to this, we will start to see different issues coming through and we need to have that clarification. Insurance should just be a matter of clarification.

Clocking is extraordinarily difficult because software is not going to be sufficient by itself and there is paperwork required. Just because a person is not logged in, does not mean he or she is not working, and that is a challenge for many employers in professional environments where people are not monitoring their workday all day long through technological means.

What I am hearing is that there is a question of trust in respect to workers. Of the challenges Ms. McElwee outlined, I believe many employers have managed them in recent years and can manage them with workers continuing to work from home. The other issue I want to ask is about costs-----

Ms Maeve McElwee

I apologise for cutting across the Senator. It is definitely not a matter of trust. It is very much a matter of responsibility that lies, appropriately, with the employer and we have to be able to demonstrate our responsibility in those area. It is not a matter of trust, necessarily. It is our obligation under other pieces of legislation.

What Ms McElwee is saying is that people have to be in the office for an employer to be able to verify that they are actually working the hours they say they are working. As for costs, what detailed information does IBEC have from its members with regards to the costs of remote working and, indeed, the benefits? I read Ms McElwee's submission in detail. I have seen many of the complaints and am aware of those that have been issued in the context of other legislation that has come before this committee. What experience has been gathered from surveys conducted within IBEC? In the Labour Party, we have conducted surveys and the overwhelming reaction from the public has been that they want remote working and flexible work options. What are the detailed cost issues that IBEC has identified?

Ms Maeve McElwee

I will reiterate that the purpose of this meeting, as we understand it, is to talk about the issues we have with the Bill and the challenges the Bill presents for employers so that we have the best balanced piece of legislation that we can possibly have. It is important to say again that the vast majority of employers are saying that they are supportive of introducing elements of remote, flexible and hybrid working. I appreciate that it sounds as though we are complaining all the time, but when looking at the specific issue of the Bill, it is important that we highlight where we see those challenges. It is important to clarify that. Looking at the surveys we have done, very significant numbers-----

Can they be shared with us?

Ms Maeve McElwee

-----have said to us that elements of remote working will be very important and they want to see that coming through.

In looking at the costs, we know they will be very different. We have not done a specific survey on the costs, but as an employers' organisation, we clearly understand our obligations under legislation and we understand where penalties lie under legalisation. There will be penalties around making sure we have the clocking and time recording system adequately in place. There will be penalties under miscellaneous provisions if we cannot demonstrate the hours people are working when they are clocking in and out. I am not saying people have to be on site for that. I am saying there have to be mechanisms in place to do that. There are costs around data protection breaches that we have to introduce so-----

Sorry, Ms McElwee. We are running out of time.

I would love to see a survey from IBEC on the cost because that would help the work of the committee. I have two quick questions to ICTU.

Very quick. The Senator does not have time for an answer.

I will put the questions and the witnesses can answer them at a later stage. I agree with everything Ms King said in her submission. On the waiting period of 26 weeks, does she think that is appropriate before an employee can request a right to flexible work? What is her view on the impact of having to wait 26 weeks, particularly for those who seek remote working opportunities? We need to expand working opportunities for those who want to work but cannot work. We have a pensions affordability issue. We need to expand the labour market. The second question relates to the request-----

Sorry, Senator Sherlock, you are taking up too much time.

This is the last question.

There is no time for an answer.

I just wish to put the question. On the waiting period of one year before an employee can submit another request, I know Ms King dealt with it in her detailed submission. She might refer to that in her comments later on.

The next member to have indicated is Deputy Paul Murphy.

I thank the witnesses for their presentations. On behalf of ICTU, Ms King spoke about the limited engagement ICTU had with the Government on the issue of remote working. What engagement has IBEC had with the Government on that issue?

Ms Maeve McElwee

We have largely had the same engagement that ICTU has had. We have had engagement through the Labour Employer Economic Forum. We have engaged through various public consultations and through this committee.

It is a matter that we have raised on a number of different platforms but in terms of tripartite engagement, that is largely where it has been. That has formed the bulk of our engagement with Government on this draft Bill.

There are more than 100 lobbying returns from companies, including five from IBEC and multiple returns from the Dublin Chamber of Commerce, on the issue of remote working. Was that not engagement? What went on to become the heads of this Bill?

Ms Maeve McElwee

As I said, we have had engagement through the Labour Employer Economic Forum, LEEF. That would be seen in the lobbying returns. We submitted our submissions.

I can check for the Deputy specifically which lobbying returns relate to each of the issues. We will have addressed issues to the Data Protection Commissioner around remote working, etc., looking for that guidance that we have spoken about. As I say, the main part of our engagement will have been through the Labour Employer Economic Forum.

I thank Ms McElwee. I will ask about one particular lobbying register item, which is down as a virtual meeting. The date is not given. It is between 1 September 2021 and 31 December 2021 and Ms McElwee is listed as the person primarily responsible for lobbying. Those people who appeared to be at the meeting - Ms McElwee can correct me if I am wrong - include the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Varadkar, the Minister of State, Deputy English, the Minister of State, Deputy Troy, and Mr. Brian Murphy, chief of staff in the Department, Mr. John Shaw, assistant secretary in the Department, Ms Clare Dunne, assistant secretary in the Department and Mr. Matthew Lynch, special adviser in the Department. Was that a virtual meeting about the question of remote working?

Ms Maeve McElwee

I would have to check the specific meeting itself. If it is registered in that way, it was certainly one of the issues that we would have raised. I would expect that that was a meeting that came up through a subcommittee of the Labour Employer Economic Forum but I can check the specific reference. I do not know off the top of my head. I do not have access to open it here.

What is listed on the lobbying return is that the intended results were to ensure understanding of the business position on proposed statutory sick pay and the right to request remote working. It seems like IBEC met the whole caboodle. It was not just some special adviser. It was the Minister and the two Ministers of State in the Department. Is that not quite a high-level meeting for IBEC to get its position across?

Ms Maeve McElwee

I cannot comment specifically because I do not have the record. Those are typically Labour Employer Economic Forum meetings and, therefore, they would be tripartite meetings that we would participate in. They would be shared.

As I say, I am happy to go back and confirm for the Deputy which meeting exactly that was. It would not be unusual that we would meet through LEEF and talk about these issues. It would be on the agenda of subcommittees.

There is no mention of LEEF or it being tripartite on the lobbying register.

I have a question for Ms Patricia King. Did ICTU have such a meeting with the Minister and the two Ministers of State present to discuss remote working in advance of the heads of Bill coming out?

Ms Patricia King

The only engagement we had was with the Labour Employer Economic Forum. There is a subcommittee of that which is chaired by the Tánaiste and on one occasion that I can recall those two Ministers attended a subcommittee. I want to make it clear that at those meetings, the substance, content or detail of a remote working Bill was never discussed with us. They were working on producing heads of Bill but there was never discussion with us on the details of those heads. I want to make it clear that there was nothing of that nature.

I thank Ms King. I will return to Ms McElwee, if I may, and ask whether that is the case for IBEC.

Ms Maeve McElwee

That is the case in terms of any of those meetings. We were not given the detail of the heads of Bill. We are afforded an opportunity to address the fact that the legislation was being brought forward and the impact that we feel it may have for the labour market as is appropriate to the remit of the Labour Employer Economic Forum. We did not discuss or negotiate in any way the heads of Bill. As Ms King has said, they were not made known to us.

In that meeting, is it likely that IBEC asked for the grounds of refusal for employers to be broad and general, asking probably for a general business ground for refusal? Did IBEC ask for appeals to be only on procedural, and not on substantive, grounds?

Ms Maeve McElwee

I will check back. I can tell the Deputy from recall, because we did not have sight of the heads of Bill, we would have been speaking in broad terms. Exactly as I am saying to the Deputy this morning, it would be important that there would be balance and flexibility within the legislation. Certainly, we would not have been discussing anything like the kind of detail around whether there was a substantive or just a procedural appeal. That never came up for discussion in any meeting that I can recall.

Is it fair to say IBEC's position has very substantially shaped what is in the Government's proposal and that it is close to what IBEC was in favour of? IBEC is clearly against any legislation at all but if there is to be legislation, IBEC's position is that the employer has the absolute right to say no with no substantive appeal.

Ms Maeve McElwee

What we would say in this regard is the Government has recognised that there are real challenges for employers, that every situation is unique and that the difference between an individual who has an ambition to work remotely and the overall obligations of an employer, from the background of all of the legislation by which we have to be governed, as well as the rights and obligations we have to every other employee within the business, is very difficult to marry up under a single item of legislation. That is what we have been discussing and engaging with publicly around the issue. It is trying to understand the fact that your right to request remote working impacts on your colleague who sits beside-----

I am sorry, we lost Ms McElwee there briefly.

Ms Maeve McElwee

As an employer we have responsibility for that.

I will go back with a final question to Ms King.

Very quickly.

How much of ICTU's position informed the drafting of the Government's Bill?

Ms Patricia King

Very little, if any. In fact, I would probably struggle to find any one piece that took account of it.

The only time that we shared in detail was through our public campaign document and through the public consultation. I personally believe that they probably did not even read our public consultation document or give it any great attention at all. If they did, it is not reflected in the heads.

I thank Ms King.

I thank our guests this morning. We are all on the one page in that we welcome some progress on the idea of offering remote and flexible working to employees but it has to be said it will not work for every business sector and every employer.

In relation to the discussion about how the heads were arrived at and who was involved, I have stated on a number of occasions that I would like to see Irish Small and Medium Enterprises, ISME, represented on the LEEF, which it is not. I am not sure that small businesses here, in terms of the small and medium-sized enterprise, SME, sector, are being properly represented. A couple of people have made comments already that to oblige small businesses, which have no opportunity to offer remote working, to engage in having a policy in place, renewing it every year etc., is only one more onerous task that small businesses do not need. That needs to be recognised from the outset.

It may be my own analysis but I wonder whether a large amount of the rhetoric in the discussion here today essentially is trying to marry the private and the public sector as if they are exactly the same. I would say that remote working works in many administration jobs and we have a great deal of that in the public sector. We do not have the same across the private sector. Maybe Ms King tell us has ICTU done any analysis to determine what percentage of work in the public sector can be done remotely.

Before Ms King answers, I would remind the Deputy that we have written to ISME seeking its submission on this issue and it has not come back to us as of yet.

Ms Patricia King

We have not done a survey of public sector workers. There would be good reason for that.

The gradual return to the workplace in the public sector is only evolving as we speak, so it would be too early to do such a survey. I agree with Deputy Shanahan that not every job is conducive to remote working. I understand that. It is perfectly normal for employers to have rights in legislation. A bricklayer or somebody else working somewhere where the work has to be done on site cannot be at home doing that sort of work, so a rationale and a level of reasonableness have to come into this. The Deputy mentioned rhetoric. I hope this is a little more substantive than rhetoric. We will not be unreasonable about this but we do know that a considerable level of home-working could be done successfully. What we are saying is that if legislation is put in place, it should be made meaningful. As drafted, this legislation is not.

I accept Ms King's position on that and I am in some ways in soft agreement with her. There is certainly no one-size-fits-all solution here. The problem with legislation such as this is that that is essentially what we are trying to craft.

Ms King referred to private employers earlier. She talked about the tightening labour market, and it is absolutely a tightening market out there. I was speaking last night to guys in the hospitality industry who want to extend their opening hours and they cannot do so because they cannot get the staff. That is the situation out there. There is flexibility for employees to look around for jobs. If a job entails the possibility of working from home, I think most employers, as long as they get productivity, will offer that. That raises the question of where exactly the problem is, which brings me back to what I said. Many public sector administration jobs can possibly be done through remote working. During the Covid pandemic, however, and other Members of the Oireachtas might agree with me on this, it has been difficult enough for us to do our jobs, trying to meet public servants and civil servants. That was made even more difficult because of Covid and remote working. It is very hard to know how productivity is being assessed when so many people are not on site, they are not meeting day-to-day and they are extracurricular, if you will. These issues need to be brought into this policy before we start enacting policy that will make it very difficult for small and medium-sized enterprises to deal with this legislation on top of everything else we are now putting on top of businesses, given the tightening business environment out there.

Who wishes to respond to that?

Ms King again, possibly.

Ms Patricia King

Deputy Shanahan made a general comment about hospitality. It would not be appropriate to engage on that this morning. I am sure the Deputy and I could have a very interesting conversation and debate on what needs to happen in the hospitality sector. I am not sure we would ever have a meeting of minds on the matter.

As for remote working, the Bill at present states that if a worker requests remote working, the employer can use any grounds - any - unfettered to refuse. That is not objective, fair or reasonable and it needs to be addressed. The current proposition in the legislation states that if a worker has from his or her employer a rejection of a request for remote working, that worker cannot appeal that substantive objection to the WRC. That is unfair and unreasonable. From our point of view, there are several ways to remedy that. We are looking for a remedy to this. We think that engagement would address a lot of this and that we could have reformed legislation that works. That would not confer a right to remote working on every employee. It would allow workers to apply for remote working in reasonable circumstances and allow the employer either to accept it or to refuse it on reasonable, objective grounds. It would allow the worker to say, "I do not think that is fair so I will go to the WRC and appeal it.". It would allow that appeal against the decision of the employer to happen. Neither of those exigencies is included in this proposed legislation. Our aim is to have that reformed, and we hope the Deputies and Senators on the committee will assist in arriving at that place.

May I ask just one more question, Chair?


Where in the legislation are employers offered the ability to look only at a blended or hybrid working model as opposed to a full remote working model?

Ms Patricia King

The application from the worker would set out what he or she is looking for, whether two, three or five days of remote working or a whole remote working scenario, as I understand it. That would be the grounds on which the employer would then respond. It might be the case that if we had reformed legislation, the employer could say, "I will not agree to five days' remote working because that would not suit our business at all, but we can arrange for two days or one day.". Again, if a worker did not think that fair, he or she could take an appeal on reasonable grounds to the WRC. None of those options are available in the Bill as drafted. We wish to have those pieces included in any scrutiny the committee carries out in order to try to get a resolution to this.

Deputy Shanahan, your time is up. Two further members have indicated to speak. Senator Ahearn is next, followed by Senator Gavan. If other members wish to speak and have not indicated, I ask them to speak up. We will then move to a second round.

I thank Ms King and Ms McElwee for their contributions. They are miles apart in their views; nonetheless I thank them for coming before us.

Ms McElwee spoke about how employers are not yet fully aware of the opportunities of remote working. What, if anything, is IBEC doing to inform employers of the positive opportunities available to them? Is it engaging with companies that have been facilitating remote working for a long time, learning from them and giving that information to people who have concerns about offering remote working, whether blended or full remote working, to their employees?

In Ms McElwee's view, should the right of appeal be procedural, that is, should it follow legislation, or should it be substantive? Does she think it is right to disagree with the employer's decision where the WRC can adjudicate if the employer was correct to refuse? Some people would have concerns about that.

This legislation is being brought in for companies of all sizes. What is Ms McElwee's view on exempting some small companies? How would that be done? What size of companies would be exempt? The obvious problem is that if companies with five to ten staff are exempted, a company with 11 staff will have an issue with that. Where does Ms McElwee see that going? I understand how having this on top of everything else employers face could be a burden for small companies.

Ms Maeve McElwee

I thank the Senator for his questions.

In response to his first question, we have been doing quite a lot of work on the area of remote and hybrid working. As I said, the issue is of huge interest to our member companies. We have used the opportunity of the past two years to share lots of the good advice and best practice that has grown in those organisations, some of whose staff were working remotely or in a hybrid manner pre-pandemic and had experience of these types of operations. Also, in sharing that experience through member networks, we have done quite a lot of work on developing frequently asked questions and putting together toolkits for employers as to how to go about setting up a remote working policy and on the types of considerations that need to be taken into account. It is a matter of working through how such a policy might be got up and running in the organisation. We have been asked for a lot of advice and guidance on that. Then it is a matter of highlighting the areas in the legislation that need to be looked out for and the areas where companies need to make sure their compliance is appropriate.

There is a great deal of work going on and a lot of very positive engagement for members in the context of getting good practice in place and learning from one another as to how they can best deal with the implementation of remote working.

Most employers feel that we have done remote working relatively well. There are questions around productivity because we are not measuring people in the same way. We know lots of people are not in the ideal environment to be as productive and, as a result, that has not been measured in quite the same detail. Hybrid is very new, and the technology that requires half the people to be in a meeting room versus everybody remotely on one particular screen is different. Sound systems and the etiquette are growing up and we are very much learning. The management of that is a very big learning curve at the moment as well. We are looking at how we train managers and how we put in place appropriate safeguards in order that people do not get forgotten and that they get adequate opportunity. All of those issues need to be addressed. There is a lot of learning going on, and some very strong engagement from members around that.

In response to the second question, we support the procedural element of the WRC investigations. That is because there is a requirement for an employer under this proposed Bill to give a reasoned response. That should, therefore, already be a matter of record which demonstrates that the employer has considered the questions, looked at their own particular circumstances within their business and addressed the issues. We must bear in mind that there may be individual and team-related complexities that are private to other members of the team, but that an employer or section manager may need to take into account in the wider application of some of those requests.

I fully accept the Senator's point on the exemption for smaller organisations as to where the cut-off lies, but we suggest that for very small and microenterprises, the exemption from a legally required right to request remote working policy would alleviate it. That is there.

I apologise for taking up Senator Ahearn's time, but while I have the floor, I confirm that I have opened my own responses on the lobbying register and, in response to the question Deputy Murphy asked me, I understand from my own records that there is a meeting of the Labour Employer Economic Forum subgroup on enterprise, trade and employment. As we have already outlined, that would have been a very general discussion about our views and would not have got into the detail of any of the heads of the general scheme because they were not known to us at the time.

I thank Ms McElwee very much. There is no problem taking the time to clarify that point. Could I have Ms King's view on small companies being exempt from this proposed legislation?

Ms Patricia King

It is probably not that reasonable and I will outline why that is. It is because we have a labour market that has a very high propensity towards small- and medium-sized businesses, and we should not be including such divisions in the labour market and not giving the same rights and entitlements to people just because they work in a small business. There are other ways of handling those exigencies, but I am not in favour of causing any further division within the labour market.

Does Ms King have any suggestions in terms of other ways of handling it?

Ms Patricia King

That all comes down to the grounds on which an employer can object. Some of the grounds that are listed are reasonable and some are not. An employer must give what would be regarded as a reasonable refusal, and this will be done on objective grounds. All we have to do is look at the legislation for contract employment or part-time working applications and it deals with all of those things. The same challenges for small businesses occur in those circumstances, and they were dealt with by including the objective grounds provision.

I thank Ms King and Ms McElwee for their patience. I might start with Ms McElwee. My reading of her documents is that, effectively, IBEC is opposed to a statutory right to request to work remotely. That is what it amounts to. Is that a fair summary?

Ms Maeve McElwee

Employers are looking at significant changes coming down the tracks. Where we try and capture questions like a right to request remote working under one-size-fits-all legislation, we see that is much more difficult. We would be much more strongly in favour of a code of practice that is more flexible and open, but where the legislation comes through, we need to make sure there is a fair and reasonable balance.

There is a difficulty with a code of practice. I speak as someone who practised as a trade union official for many years. I am always reminded of Captain Jack Sparrow when he spoke about the pirates' code and reminded his fellow pirates it was more a set of guidelines than an actual code. I know from years spent as a trade union official that codes of practice do not work when it comes to vindicating employees' rights. That is just my experience and I thought I would put it out there.

"Flexibility" and "agility" are key words these days in terms of business, but they seem one-sided in nature. I will give an example of that in terms of how the general scheme is currently drafted. I echo a point my colleague, Senator Sherlock, was hoping to get a response on earlier. Under the proposed legislation as it stands, an employee must have worked for an employer for six months before he or she can request a right to work remotely. Employers then have three months to consider the request and can demand more elements or meetings to discuss the request further, so it would be close to a year before an employee has an answer. Employees who want to appeal the matter to the WRC could be waiting for up to a further year. Once the request is refused, a person is barred from making a new request for 12 months. My question to both parties is simple. Where is the flexibility or agility in that? Is agility a word that we only use for employers and not for employees?

Ms Maeve McElwee

First and foremost, I might suggest that the code of practice on grievance and disciplinary investigations has been a fundamental pillar of our industrial relations and employment rights, so codes of practice can have a very strong impact. Senator Gavan might agree that that one has been very effective over many years.

When it comes to agility, it is not unreasonable that an employer would say that somebody must be with them for six months in order that they have an opportunity to meet colleagues, learn the culture of an organisation and learn things that one cannot write down on how we operate, what our normal methods of engagement are and then the opportunity to have the conversation. It is not necessarily a case that an employer cannot permit somebody with less than six months' service to work remotely. It is a piece whereby, if an employer had somebody very new or very junior, he or she might want to make sure that they were very well versed. For instance, when I think of some of our own team coming in, we want to be very clear that people have the training and background before we send them out to WRC cases and so on.

Senator Gavan says that an employer would then have three months. It is not an unreasonable timeframe in which an employer would have an opportunity to answer. I am not thinking of smaller microenterprises here, but of an employment where multiple requests might be coming in, and they must be sequenced against requests for annual leave, carer's leave, parental leave, adoptive leave, work-life balance and every other request, whether that might be for a career break, a secondment or a recruitment gap that an employer has. Where an employer has multiple requests and larger numbers, they must sequence all of those requests adequately and appropriately and to be fair and respectful to other people within the business where roles might fall to them in the event that somebody is working remotely. I think in particular of where somebody who is going on leave or on secondment might have supervisory duties that another requester may be required to take up for a period. It is complex, but it does not mean-----

I apologise for interrupting, but due to the shortage of time I will summarise. Is Ms McElwee saying she does not see a lack of flexibility in that two-year wait for a worker?

Ms Maeve McElwee

I do not see a lack of flexibility because I do not see that an employer is bound by these timelines.

An employer can move much faster, but it is reasonable that we have to set out a limit under which an employer has an opportunity to be able to respond depending on the complexity of the situation facing him or her at any one time. He or she is not bound to take this amount of time.

Okay. I would read that as a kind of one-sided right. I would like to give Ms King an opportunity to respond before I run out of time.

Ms Patricia King

I thank the Senator for the question. Our guide on this would be the Minimum Notice and Terms of Employment Act, which provides that someone must give 13 weeks in terms of their notice and so on to an employer. We think that is a good guide. It is explicit in other legislation as well. Therefore, 26 weeks should be 13 weeks in our view. There is very little flexibility cited in the provision. That there would not be that in-built flexibility in the piece did not surprise me considering the main pieces of the legislation are framed in the way they are.

As the Senator well knows, those are the sorts of pieces that should and could have been reasonably resolved in a tripartite engagement on these matters. They have gotten some of these pieces badly wrong in our view. When we leave that alongside the main issues - that is, the grounds and non-right to appeal of the grounds - that is why I make the assertion that it is useless.

To follow up on that, and I appreciate I am almost out of time, I think a fair summary is to describe this Bill as window dressing. It talks about granting a right to request remote working but it does not translate it into giving any right whatsoever. Is that a fair summary?

Ms Patricia King

Some people are mixing up and confusing the right to request with the right to remote working. I wish we were talking about the right to remote working. We are not. We are talking about the right to request remote working. We can see the level of dismissiveness towards the points we made to try to have a reasonable legislation that takes account of that.

A worker will get a right to request as a result of this legislation if it were to be put in place. That is not the right to remote working; it is the right request it with grounds for the employer to say "No". At the moment, those grounds are unfettered and there is no right to appeal on those unfettered grounds in terms of any refusal. That is how unreasonable this is, or as common parlance would say, this piece of proposed legislation has landed very badly.

I want to ask one final question on that issue of the procedural grounds being the only grounds on which a worker can appeal. That means, in effect, that a worker can only appeal the refusal, not the reason the employer gave for refusing. How is that fair?

Ms Patricia King

They cannot appeal the reason and they are limited in their appeal to three technical grounds - for instance, asking if the appeal was received on a Monday and not a Tuesday. That is really technical. It is meaningless. Who cares? The thing was refused. A person needs to try to address that with a good solid appeal and he or she has no right to do it.

The Senator's time is up. That concludes round one, so we will move on to round two. The people who have indicated to speak are Deputies Stanton and Shanahan followed by Senator Sherlock. Anybody else who wants to speak should please indicate.

Is Ms King aware of any jurisdiction where the right to remote working has been granted through a legislative process in the European Union or beyond? I would be interested to find out if any other jurisdictions have that particular right built into their laws. I cannot find it but I am sure that does not mean it is not there. I am sure if it is there, Ms King will have located it and might be able to tell me.

Ms McElwee in her submission spoke about excluding certain cohorts of employees from the right to request remote working. That is something on which Ms King might come in as well. Would I be right in suggesting there are a certain number of employees for whom remote working just would not work? Is Ms McElwee suggesting that it should be somehow or other built into an understanding or contract that they would never have the right to request remote working? Is this what she is suggesting if they are excluded, as per the wording in her submission? Ms King might come back in and speak to that.

I asked a question earlier with regard to employer responsibility. I would be interested to hear Ms King's points on the home as a workplace, and the responsibility of the employer to ensure it is safe and that all the other issues regarding equipment, data protection, cybersecurity and so on are in place. How will the employer ensure that is done to a standard required? Does it mean the employer would have to have access to the workplace in the employee's home? Does Ms King see any conflicts or problems around that?

Ms Patricia King

In the first instance, I will ask my colleague, Dr. Bambrick, to address that piece about the European Union.

Dr. Laura Bambrick

We might look at other countries that have remote working legislation. As was mentioned in our opening statement, 12 EU members states already have this legislation. Six, including Ireland, are in the process of including it. The others are the UK, New Zealand and Australia.

When we look at it, the vast majority of the legislation is around the right to request for all the reasons we have spoken about today. While many people will be in jobs that have tasks that allow them to work remotely, the vast majority still need to be in the employer's premises on-site to do the job. There are two exceptions to that.

In the last year, Finland has introduced legislation whereby employees have the right to work where they want and for the hours they want for half of their contracted hours. The legislation addresses flexitime and the location of their work, within limits, which are the same limits we are talking about today. It has to be done in a way that works for the business as well. I cannot say I would like to work between midnight and 6 o'clock if I am required to be contactable by members during the working day. Therefore, there is a balance. Finland has gone the furthest there in half-year contracted times. A person can choose where and when he or she wants to work within reason. We must recognise, however, that this has been built on by generations of looking at workers' rights around flexibility. They are not coming at this anew. Ireland is a laggard here. That legislation did not happen overnight.

The only other one exception is Romania where workers have the right to one day of working remotely from home. Again, it must suit the needs of the business. As Ms King mentioned earlier, the bricklayer still would not be entitled to it. Those are two countries that go that bit further around the right to request. For the vast majority of jurisdictions that are way ahead of Ireland in this regard, it is around the right to request. I hope that helps.

I will come in with a supplementary question. In those instances Dr. Bambrick mentioned in Finland and elsewhere, is that done by agreement with the employer?

Dr. Laura Bambrick

No, that is in legislation but it would still have many of the parameters we will hopefully have within this Bill whereby it is not an automatic right; it still has to fit in with the needs for the business. It goes beyond a right to request, however.

Is that enough for Deputy Stanton? The next speaker is Deputy Shanahan.

I am sorry, Chairman; I am not sure that my time is up. I have other questions for Ms King.

The Deputy may work away. I am sorry; that was my fault.

Ms Patricia King

With regard to the workplace, as the Deputy knows, health and safety legislation at the moment requires the employer to ensure the employee is safe, as far as is practical and reasonable, while he or she is at work.

When a worker works from home, the home becomes a workplace, under current legislation. The employer would be expected to take action for the employee to be safe in the workplace and, therefore, the role of the Health and Safety Authority is important in order that, again, we will get that balance right. This is about meeting this progressive new way of working, and I have no doubt the means of doing that could be established.

Does that mean the employer should have the responsibility or the right to inspect the workplace, whether using cameras or something else? How would that square with a person's right to a private residence?

Ms Patricia King

They are challenges that occur and have occurred for the two years of the pandemic. We have had some feedback on the over-reliance on certain technologies, and some people have referred to the Big Brother aspect of this in respect of how employers have tracked employees and so on. What we are looking for is a reasonable solution. I take the point Ms McElwee makes about how, when we were operating in pandemic-type circumstances, we did not have a choice and that, therefore, the exigencies that arose had to be dealt with. Some of those experiences are valuable and will order how we manage those issues into the future.

In New Zealand, the employer has a right to view photographs and footage of the workplace in the home. Would Ms King see that as a reasonable accommodation here, given the responsibility employers will have to ensure safety of the workplace? How can we square that?

Ms Patricia King

What is required in the proposed legislation is that the worker, when making an application, would give a detailed outline to the employer as to how he or she would envisage the remote working and how he or she would order these matters in regard to the location and so on. Currently, under the Safety, Health and Welfare at Work Act, the obligation on the employer refers to it applying “so far as is reasonably practicable". The employer has an obligation, therefore, and that home space becomes a workspace.

We would have to draw guidelines on how that would work. It goes without saying it would be unreasonable for the employer not to know what was available in the workplace and what the circumstances were, given it is responsible for it. The guidelines would have to be more detailed than are currently available under the health and safety legislation, although I do not see that necessarily as a barrier. What we are talking about here is an arrangement in which there is a dual interest.

I can see that much work would have to be done in this area. For instance, an employee could fall down his or her stairs, whether because it was not safe or for whatever reason, and if the home is the workplace and he or she was deemed to be at work, that could be an issue. I will not go on because I do not have enough time, but this definitely needs further examination.

Will Ms McElwee expand on the issue of excluding certain cohorts of employee and how that would work? Ms King might also give her views on that.

The Deputy's time is up but Ms McElwee might answer briefly.

Ms Maeve McElwee

We recognise it would be very challenging for employers to go out to employees who have no prospect of working remotely, and every year to have to update their remote working plans and policies and bring people up to speed. We are thinking about people in the experience economy such as bartenders, housekeepers, baristas, line operators and factory operators. Reasonably, there is no prospect of them ever working from home remotely, and there is a challenge for employers in trying to balance the needs of on-site workers and the flexibilities they require against those of a cohort they believe are being afforded all the responsibilities and the work-life balance. Rather than going out every time and presenting the policy with an explanation of why the employees can never avail of it, we should probably just exclude those types of roles.

I might return to the issue of employers restructuring and re-organising in the context of remote working. Where an employer has agreed to accommodating remote working for an employee and, subsequently, has a need for sick cover or maternity leave cover, how would that be dealt with? If I have given someone a contract that allows him or her to work for home and I am now stuck for cover in the office, where normally I would be able to delegate someone to do that and where I want the person who is working at home to come back to the office, where do I stand as an employer?

Ms Patricia King

That is the value of having a good, solid remote working policy, in which those exigencies would be covered, in the very same way as job sharing, career breaks, part-time working or all the other issues. There is mention of the development of a remote working policy in the legislation. Those policies will be much better and more likely to be adhered to if they have been agreed between the employer and the employee group. Dealing with these issues is the purpose of producing that type of policy because the policy will be intended to meet the needs of the business and the workers in it. Those exigencies will occur, where, unfortunately, workers will become sick and there will be a requirement for cover. All of that can be included in the procedure and dealt with on that basis. It is not unusual and it can be dealt with.

Somebody who is working outside the office continuously may either complain of discrimination or seek constructive dismissal compensation if he or she claims to have received no advancement in his or her career and blames that on the fact he or she was remote working while other people were closer to the business decision-making and so on. I think we may have seen examples of this. Is that something ICTU has considered? How will it give comfort to employers in that instance?

Ms Patricia King

Two issues arise. If somebody requests the right to have remote working, the employer will try to meet the request. I think trying thereafter to put together a constructive dismissal case, which is usually based on the employee claiming to have had no choice but to leave because he or she could not deal with the circumstances, would be really difficult.

As for the issue of promotions and so on, there are issues arising from remote working - Ms McElwee may have alluded to them - such as how it would pan out in overall terms in the context of gender-related issues, promotions and so on. I would not in any way want to minimise the points the Deputy made, because they are significant issues. Previously, in the case of work sharing, job sharing and so on, policies were developed to try to ensure people would not be disadvantaged by virtue of the fact they were remote working, and that can be done using the procedures that are in place in a company.

The Deputy's points relate to real issues, but there are ways and means by which we can at least minimise those effects.

I do not want it to come across that I do not agree with providing the right to remote working. I think that if it can be explored, it should be explored and everyone should have the right to have it considered. Nevertheless, all the unintended consequences need to be considered, from the points of view of both the employer and the employee.

If we are saying people will have the right to request to work from home, even where a company employs people remotely, will that give them a right to request that they be allowed to work in an office? For example, if there is an office in Dublin and somebody decides he or she wants to work in town one day with his or her workmates because he or she does not like the idea of being contracted to work from home, can that person, inter alia, make a different request such that, given the employer is allowing people to work from home, he or she should equally be allowed to work in the office?

Ms Patricia King

The contract of employment between an employer and a worker stipulates the relationship between them. Therefore the employer will stipulate where the normal place of work is. The right to request remote working is over and above stipulating that normal location and therefore it is either conceded or not in circumstances in which both parties can agree within a policy framework. The normal place of work is stipulated by the employer. We have not quite had the revolution yet.

I thank Ms King. The idea of a right to request remote work should be available to all workers but the microenterprises have to be kept to one side. I would like it to be noted that if ISME is putting in a submission, we should get sight of that. I would like to hear what the smaller business sector has to say about all of this.

We will sort that out.

When I read the Government’s remote work strategy that was published last year, there was a certain ambition in it on the role that flexible and remote work could play in expanding work opportunities to those who want to work but who cannot do so because of structural barriers in their lives, particularly those with a disability or disabled people and I am also thinking about lone parents. When I look at the detail of the Bill I see that you have to wait 26 weeks after taking up employment before you can even submit a request for flexible work. That is a real obstacle, particularly for those with a disability or disabled people and lone parents taking up flexible work. I would like to hear the views of the Irish Congress of Trade Unions and of IBEC on that 26-week waiting period.

Ms Patricia King

As I said in response to Senator Gavan, our view is that it should be 13 weeks, which is what is stipulated in the Minimum Notice and Terms of Employment Act 1973 and which is used in other employment Acts. A period of 26 weeks is long and we think that 13 weeks would be reasonable.

Is that 13 weeks upon taking up employment before you can-----

Ms Patricia King


If the first request is refused would it be another 13 weeks before one could put in a second request?

Ms Patricia King

That is our understanding of it. Those periods are far too long. In essence there is a provision such that an employer is insulated from a further request within a period of time. From our point of view that is long but those are the issues that should be thrashed out in a tripartite way between the people who are penning this legislation, the employers and the trade unions to see if it is reasonable.

What is IBEC’s position?

Ms Maeve McElwee

When we look at the policies that organisations will put in place, they may well vary their terms. We know that there are organisations that already hire remotely. Some organisations will have had experience of hiring remotely during the pandemic and they may be well prepared to do that in the future. Lots of organisations might just make adjustments to the timelines or the level of interactivity they will want in order to support people who may have different and challenging needs when it comes to their labour market participation, as the Senator has outlined. The 26-week waiting period is typically there and it is protective for lots of employers because it provides them with the opportunity to get someone in, do induction and get them well settled within the organisation before they begin working remotely. It is not to say that an organisation could not accept a request earlier or that it could not reflect on a person's particular circumstances.

The 12-month period is also reasonable in circumstances where nothing else has changed. As I understand it from the Bill, an employee could not regularly submit requests to seek a right to remote working where the employer would then be obligated to undertake a formal process and write up a business case on every occasion. In larger and mid-size workplaces that could be become unfeasible and would become contentious because if nothing has changed, the likelihood is the employer will continue to refuse the request.


Ms Maeve McElwee

-----in the legislation that would prevent somebody from raising a request earlier if the circumstances have changed, either in the role or for the organisation more broadly.

Could that flexibility be included in the Bill? As I see it there is currently a rigid interpretation of the types of circumstances people find themselves in when they want remote work. Sometimes it is for temporary reasons and other times it is for permanent reasons. Could a provision be inserted into the Bill that would allow for those temporary situations where people need to work remotely for a period of time?

Ms Maeve McElwee

It can be difficult to put those types of provisions in legislation because it comes down to what the cut-off period would be or what the circumstances are. However, they can be worked into organisation-level policies in an effective way or they can be addressed in codes of practice. There are times when challenges arise and when employers may want to deviate from the legislation in favour of the employee. It is not possible to deviate when it is something that would adversely affect the employee. Head 7 of the general scheme states:

For the Purposes of this Act, an employee, in the same or substantially similar employment position following a previous request ..., shall not be entitled to submit a new request ... until after 12-months’ continuous service following ... the employer’s final [response].

This is only in the case of “the same or substantially similar employment”, so that already provides for the fact that circumstances may change.

I firmly believe there is potential in this Bill to allow for cohorts of workers who cannot access work at the moment, such as lone parents and disabled people, to enter the workforce. Therefore that 26-week waiting period needs to go and we have been working with the Disability Federation of Ireland, SPARK and others to put an amendment to that provision in the Bill.

I thank the witnesses from ICTU, Ms King and Dr. Bambrick, and from IBEC, Ms McElwee and Ms Harkin, for assisting the committee in its consideration of this matter. The committee will further consider this important matter as soon as possible.

Sitting suspended at 11.48 a.m. and resumed in private session at 11.52 a.m.
The joint committee adjourned at 12.16 p.m. until 10 a.m. on Wednesday, 3 March 2022.