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Seanad Éireann debate -
Tuesday, 31 Jan 2023

Vol. 291 No. 6

Work Life Balance and Miscellaneous Provisions Bill 2022: Committee Stage

For the information of Members, the version of the Work Life Balance and Miscellaneous Provisions Bill 2022, as passed by Dáil Éireann (No. 92 b of 2022), sent to Members on 14 December 2022, contained an error in subsection (3) of the section proposed to be inserted by section 7 of the Bill, page 11, line 8. The correct text of the subsection is as follows:

‘‘(3) Domestic violence leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 5 days in any period of 12 consecutive months."

I just wanted Members to be aware of that issue.

Sections 1 and 2 agreed to.
SECTION 3

I move amendment No. 1:

In page 7, line 12, after “child,” to insert “foster parent,”.

Amendments No. 1 and 12 deal with the same issue, which is the concern that some of those who are providing parental care may accidentally or inadvertently fall outside the remit of the Bill. Amendment No. 1 seeks to include foster parents within the definition of "relevant parent" under the Bill. Whether or not it is the relevant parent in another context, in the context of this Bill people may, for example, have to take periods of leave or need to address particular care for a child. I believe it is important that foster parents would be included in that.

My understanding of it at the moment is that the phrase "in loco parentis" does not actually cover or account for foster carers as relevant parents in the same way that in many circumstances social workers are the designated people acting in loco parentis, and foster parents may need to seek permission from social workers around making decisions for the children's care.

If this is not a concern, or if it is included, it would be useful to have it clarified. It is a concern I am hearing from foster parents that it is not clear to them whether they are covered by this scope of the Bill. I do not believe it is the intention of the Bill that foster parents who do need flexible arrangements in respect of the care needs of the child in their care are not able to access the provision of this Bill.

Similarly, amendment No. 12 addresses the same issue about "in loco parentis", what it actually covers and who it includes. I have suggested the removal of the phrase there but I would also be happy if we had "in loco parentis" or "providing parental care" in the definition of relevant parent. Instead of replacing it I am happy to expand that section in amendment No. 12, which is section 13AA.

There are a couple of other categories - which I will not speak to now because I will have amendments later - where I feel the definition is too narrow in terms of other caring relationships. Amendments Nos. 1 and 12, however, relate specifically to the issue of those providing parental care.

I thank Senator Higgins. Before I call on Senator Keogan, I welcome the newly appointed Government Deputy Chief Whip, Deputy Cormac Devlin. I congratulate the Deputy. He is joined by Matthew Lynch, Keelan Archer O’Rourke and Harry Roche from Trinity College Dublin.

You are all very welcome. I hope you have a very pleasant visit to the Houses of the Oireachtas.

I thank Senator Higgins for spotting something that I missed. I took acting in loco parentis as meaning the foster parent. To make sure that it is, I welcome the Senator's insertion.

I am happy to be able to introduce this Bill. It is one of Ireland's most ambitious Bills dedicated solely to improving work–life balance. I look forward to the detailed discussion we are going to have. Not only will the Bill transpose EU law on work–life balance for parents and carers but it will also implement some important programme for Government commitments. It delivers a right to request flexible working so mothers, fathers and carers can be present for their children and families. It will deliver five days of leave per year to provide care to those with serious medical issues, such that in the most stressful moments of parents' or carers' lives, they can focus solely on supporting the person who is ill. The Bill will extend breast-feeding breaks from six months after birth to two years after birth and, significantly, introduce five days' paid leave for victims of domestic violence.

There are 29 Government amendments. They are primarily technical.

With respect to Senator Higgins's amendment, section 3 provides for the interpretation of terms used in the Bill. A definition of "relevant parent" has been provided that mirrors that in the Parental Leave Act 1998, which is the Act being amended. The Senator's amendment would include an explicit reference to foster parents. However, the definition of "relevant parent" includes a person acting in loco parentis to the child and would in our view encompass a person caring for the child in a foster relationship. As such, we see the amendments as unnecessary. As the definition in the Bill is one used in the Parental Leave Act 1998, it would not be appropriate to make the proposed change.

Amendment No. 12 is a similar amendment. It seeks to remove the term "in loco parentis" from the provisions on domestic violence leave and substitute "providing parental care". The term "in loco parentis" would have the meaning desired. It is already used in the Parental Leave Act and various definitions in this Bill and therefore the proposal is not necessary. However, it is very much our intention to include foster parents, so I will be happy to get officials to triple-check. It is certainly our intention to have foster parents included within the definition of "in loco parentis".

I would appreciate that clarification between Committee and Report Stages. I am not going to press my amendment at this point but, because there is concern, it would be useful for us to be made absolutely certain that there is no inadvertent effect.

Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4

I move amendment No. 2:

In page 8, line 8, to delete "26 weeks" and substitute "one week".

I welcome the Minister to the House. Many groups that made a recommendation to the Joint Committee on Children, Equality, Disability, Integration and Youth on the Bill recommended the removal of the six-month employment eligibility criterion. It is our view that this will negatively affect lone parents who may be in need of flexibility in order to take up a job in the first place. Those returning to work following a period out of the labour market for care are more likely to be women, as are workers on temporary contracts. Our view is that retaining the six-month employment eligibility criterion will prevent lone parents from taking up employment, directly contributing to the ongoing high rates of poverty, at 13.1% in respect of deprivation and 44.9% in respect of this cohort.

I support the amendment. I have similar amendments, relating to another Part of the Bill, on the six-month criterion. The six-month requirement makes it less likely that people will be able to enter employment in the first place because requiring full-time availability for six months with no flexibility is exactly the obstacle for those who are parenting alone or returning to the workforce. One of the huge employment issues in Ireland is that women, in particular, tend to leave the workforce and then face an obstacle on re-entering. Where an employer is considering what is needed for the employment and so forth, I would imagine that there are many circumstances in which the employer would indeed be very happy to arrange and accommodate a flexible working arrangement for somebody re-entering the workplace, perhaps with significant skills. There is a presumption that such an arrangement is granted rather than something that just makes sense for both the employer and the employee. It is unnecessary to have such a large obstacle. It means there may be a six-month hurdle, perhaps involving childcare and trying to get care arrangements in place, before one can re-enter the workforce, rather than being able to have a conversation very early on about flexible working arrangements.

I am hesitant about what I am going to say. I have checked and double-checked my thinking on it to make sure I am accurate. While I have great sympathy for the points made by Senators Warfield and Higgins, I believe the amendment is about substituting the 26 weeks for one week in the context of ceasing employment. I note the Minister nodding, so it must be right. If I end my employment with an employer and return to work with that employer within 26 weeks, the period before my ending the employment is added on when it comes to the calculation of my service for the purpose of the operation of this Act. It is taken as continuous employment. I have read and reread the legislation. While the Senators' sentiments are correct, they are misplaced in respect of section 4. They do not accurately reflect what is stated in the section. The section refers to the calculation of service and states that as long as one re-enters employment within six months after leaving, one's employment is regarded as continuous in the calculation of service. While the argument on six months is for a later point, with which I have sympathy, it is unnecessary at this point because the legislation states something that differs from what the Senators are saying it states. I am loath to make these remarks.

Senator Seery Kearney might be correct. My amendment on the six-month period is coming later, so I am glad there is support for that principle.

I said I have sympathy for it.

We will have a chance to discuss it later.

My reading of the legislation is similar to that of Senator Seery Kearney in that the proposed amendment would appear to reduce the 26-week period to one week. As drafted, it would mean that only previous employment in the past week would qualify as continuous service for the purpose of calculation. I do not believe that is the intention of the Senator in the circumstances but it is the result of the amendment proposed.

I propose to withdraw the amendment. I reserve the right to resubmit it.

Amendment, by leave, withdrawn.
Section 4 agreed to.
Section 5 agreed to.
SECTION 6

I move amendment No. 3:

In page 9, between lines 11 and 12, to insert the following:

"(2A) Subsection (1) shall also apply to the following persons where a person is in need of significant care or support for a serious medical reason and no persons prescribed under subsection (2) have applied for medical leave for that case—

(a) a niece or nephew of the employee,

(b) an aunt or uncle of the employee, or

(c) a grandchild of the employee.".

I feel quite strongly about this amendment. It points to a gap in the understanding of care and medical care leave in the Bill. My amendment would seek to amend the provisions. The list of relevant persons included in the Bill is quite narrow. The Child and Family Relationships Act recognises the many and complex relationships that children and each of us may have. The most relevant person to a person in need of medical care may not always be a spouse, cohabitant, brother or sister.

My amendment does not expand it indefinitely, allowing multiple persons to take medical leave. Instead, it seeks to expand it to cover cases where people are in hospital or need medical care and no one else applies to give them that medical care. Relationships are complicated. People may be estranged from their parents and unwilling to provide that medical care for them. In such circumstances, an aunt or an uncle may be in a position to provide that medical care and should be allowed to do so. Similarly, a person's niece or nephew may be able to provide that care. If somebody is sick and needs that medical care but does not have children or a spouse, it may be the case that a niece or nephew could provide it. The section provides for the provision of care to grandparents but not grandchildren. This amendment includes grandchildren of an employee who need care as relevant persons where a parent of that grandchild cannot provide it. This acknowledges the reality of relationships.

As we have discussed when dealing with other legislation, relationships are complicated. I am not suggesting we add these in as extra categories but rather that we provide that, where no parent, grandparent, cohabitant, spouse or brother or sister has applied for leave to provide medical care, this slightly expanded range of relatives might be allowed to apply for that medical care leave. It would show an understanding and prevent situations in which persons are left isolated. Given the pressures on our hospitals and so on at the moment, we know it can sometimes be something as simple as there being somebody who can provide a certain amount of care that allows someone to make the transition out of hospital or acute care and into their own home. It would be a pity if we did not facilitate that.

Section 6 inserts a new section 13A into the Parental Leave Act 1998 to provide for an entitlement to leave for medical care purposes for parents and carers. This amendment would extend the cohort of parents and carers who are entitled to avail of leave for medical care purposes. I appreciate that there is a wide range of potential caring relationships but the Bill very much follows the definitions set out in the EU work-life balance directive, which is itself very broad and encompasses a significant range of family and other household relationships. The Bill provides an entitlement to leave for medical care purposes for the care of: a person of whom the employee is the relevant parent; the spouse or civil partner of the employee; his or her cohabitant; his or her brother or sister; or a person other than one specified in any of the relevant subparagraphs of the section who resides in the same household as the employee and is need of significant care or support for a serious medical reason. A broad set of categories and familial relations are already provided for in this legislation. I do not believe we need to make this particular amendment.

The provision of section 6 that provides for someone who is residing in the same household as the employee in question and who requires serious medical care or support is broad enough to encompass anything suggested in this amendment if this situation arose. If someone is coming out of hospital, to use the Senator's example, the term "resides" is loose enough to encompass these categories where a need arises. I believe an employer would be open to taking that into account. Section 6 is broad enough to include everything suggested in the amendment and other arrangements, including people who are very close and who share a house but who are not actually cohabitants. It is loose enough to include any sort of relationship really, should the need arise.

The term "cohabitant" is not always interpreted that widely, although it does cover certain households. To be clear, the provisions of the EU directive are a signal of direction, an encouragement and a move in the right direction, but they do not set a limit on what we can do. Just as many countries had much better parental leave policies than Europe required them to have, there is nothing that says we cannot have something that is better or that goes further. Ireland has a particular record in recognising different kinds of relationships, for example, through the Children and Family Relationships Act 2015. That is important. I do not believe some of the circumstances my amendment provides for would be used too much because I have included the safeguard that, if any of these other people, such a parent, have used the provisions of this section, those included in my amendment may not. For example, a cohabitant may have used the medical care leave. This only applies to those circumstances where no one is taking medical care leave in respect of a person who needs medical care. Take for example a grandparent who has a 19-year-old grandchild whom nobody else is coming to help. That grandchild may not live with that grandparent. Unfortunately, we have had situations where grandparents have been the carers for grandchildren. The parents may not be in a position to be the main carer. If you are a grandparent who works and your 19-year-old grandchild is in need of medical care, in circumstances where nobody else is stepping in, you should be able to. I am not going to force this-----

If the grandchild needs a parent or grandparent, that parent or grandparent can-----

The section says "a parent or grandparent of the employee".

If the grandchild needs-----

The Bill provides for an employee to take medical care leave to care for a parent or a grandparent. It does not work both ways. It covers grandparents but not grandchildren. It covers half that relationship. I put it to the Minister that, between now and Report Stage, he should consider this and see if there is any practical reason not to do this other than that Europe is not making us. I do not believe these provisions would be taken up to any great degree but, in a number of individual circumstances, it could make a significant difference. Again, my amendment covers aunts and uncles, nieces and nephews and grandchildren. I will not press it now but I will bring it back on Report Stage and push it at that time. It is worth considering whether there is any reason not to do this.

I would support even the addition of "grandchild" so that it reads "a parent or grandparent or grandchild of the employee". I would support that because I know many children who rely solely on a grandparent to give them care at any age. I would welcome the addition of "grandchild" and ask that the Minister give it consideration.

I understand what we are talking about with regard to residing in the same household, but there are situations where an individual who is the sole person picking up the slack is not any of the persons specified, although there are not many such situations so we are not opening up the Bill in an extreme way. Particularly in rural areas, that person might be an elderly man who is no relation whatsoever. That man is the person who calls to the person in need of care and who is there. There is no other person. The Bill should be extended.

The Department should consider that in many situations where an individual coming out of hospital needs emergency care for a short time for a serious medical reason, the person providing that care may not be a relation but there is no one else to provide it. It would be interesting to see if an amendment was possible on Report Stage to provide such an extension, albeit not in too wide a manner. It should be an extension with restrictions. It should apply solely where there is no one else available to provide the care.

We are in danger of being overly compassionate here. We need to provide certainty for employers. If we are too broad in the provisions, we will end up with a situation whereby any person could, at any time, seek to avail a protected category of leave - that is the entitlement we are providing for here - in respect of any other person. That would leave employers in a precarious situation and unable to plan because such a situation could arise at any point. We need to be careful not to broaden it out too far.

As regards grandchildren, if a grandparent is the only person who can take leave in respect of a child needing medical care, the likelihood is that grandparent is in loco parentis. All present are aware of such instances. I am not sure it is not arguable under that.

The proposed section 13A(2)(a)(vi) provides for a very broad category of persons, namely, those residing with an individual who has a serious medical condition, where those two things combine. They do not have to be a cohabitee; they just have to be residing in the same household. It is arguable as to how inclusive or definite the interpretation of residing would be, or the duration in that regard. Any legal person worth his or her salt would be able to argue for the inclusion of a person within that category if the situation arose and it was needed. What is provided for in that regard is wide enough and has scope to include anything that may arise where the care is needed.

People are appointed to be in loco parentis in respect of children under the age of 18 but once the child reaches the age of 18 and becomes a young adult, he or she does not have anybody to take care of him or her. The inclusion of "grandchild" is very important for this legislation and I ask the Minister to consider that provision. It is a relevant piece of care that can be given. I agree with Senator Higgins that in loco parentis applies only in respect of children up to the age of 18. After that, the young person falls under the adult services.

Is the amendment being pressed?

I will withdraw the amendment and reintroduce it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 9, line 14, to delete “5 days” and substitute “10 days”.

I invite the Minister to provide the Department's response on the amendment. I am a bit confused after the previous amendment.

In line with Article 6 of the work-life balance directive, the Bill provides for five days leave for medical care purposes. The amendment would extend this entitlement to ten days. The Bill is introducing a range of new entitlements, and that is positive. These entitlements have been discussed at length with social partners, unions and representatives of employers. I have engaged in some of those negotiations, as have my officials. It has to be understood in the context of other developments, such as the extension of paid parent's leave which, as we know, has gone from two weeks to seven weeks per parent during the lifetime of this Government. It is important that any changes we make are balanced in terms of their impact on employers. This is why we had always indicated it would be five days under this heading. It is relevant to note that carer's leave and carer's benefit may also be available to some people under this heading. I am not in a position to accept the amendment.

I thank the Minister. I apologise for my confusion there for a hot second. I raised this issue with the Taoiseach at the Oireachtas Joint Committee on Gender Equality. We have consistently made the point that many companies provide more than five days' leave. In the North, there is more than five days' leave. We thought the Government should go further. I will press the amendment. I have made these points on many occasions. As I stated on the previous amendment, many groups made a submission to the children's committee on the Bill and recommended the substitution of "10 days" for "5 days", in line with international best practice and sectors that had already commenced such a policy in Ireland, including the higher education sector, with the support of the Minister for Further and Higher Education, Research, Innovation and Science, Deputy Harris.

Amendment put and declared lost.

I move amendment No. 5:

In page 9, to delete lines 36 to 39, and in page 10, to delete lines 1 to 7.

The amendment relates to the requirement for a worker to obtain a medical certificate for a third party, which is overly restrictive and places an additional and unreasonable cost burden on parents, particularly lone parents and low-income workers, especially when coupled with the unpaid nature of the leave. It must also be considered whether supplying medical information on a third party to an employer is consistent with the general data protection regulation, GDPR.

It is reasonable to have concern in respect of this. Requiring a medical certificate in respect of a third party creates its own difficulty but I am particularly concerned that some of the language, especially that on page 10, is a little excessive in the way it is framed. It refers to such information as the employer may reasonably require in relation to the employee's relationship, the nature of the personal care or support and the evidence relating to the need of the person. It is quite expansively framed. I appreciate there needs to be a mechanism whereby the relationship and the reason for having to take this medical leave is stated but medical information is one of the special categories of information under section 10 of the GDPR. It is important that necessity and proportionality measures be included in the context of information being sought and provided, rather than it just being a case of that information being reasonably required by the employer. By framing this just in terms of what an employer may want, it poses the risk that persons will be asked to give detailed personal or medical information in respect of a third party. A minimalist approach should be taken in this regard. I appreciate there needs to be something but it should be at an absolute minimum. I reserve the right to bring amendments on Report Stage to provide that proportionality and necessity requirements apply to that information.

This could be achieved by clarifying that it is sufficient for a medical practitioner or a person of medical standing related to the individual for whom the care is required to state, without disclosing any private information in respect of the individual, that a level of care consistent with the Bill is required.

Can that be construed? A medical certificate has a specific meaning in all of our heads. We expect it to have a particular content of information. Since the introduction of the GDPR, employers are not requiring that any more. They just need to certify that somebody is absent without stating the reason for it, as long as it is on a headed paper and stamped by a GP or private doctor. Perhaps clarity in that regard, in that we do not need to disclose the information regarding the third party, but verifying that it hits the standard within this Act, is a reasonable request. Perhaps that could be clarified on the record.

This amendment intends to remove from the Bill the provisions related to the ability of an employer to seek relative evidence of the circumstances in which an employee is taking leave for medical care purposes. The touchstone of policy development from a data protection perspective is that the design of the system should seek to achieve the minimum invasion of privacy rights, be they third party or otherwise, while also achieving the legitimate objective of ensuring that the employer concerned has the sufficient information they need to base any necessary decisions.

There is a legislative basis for the processing of such data through the general data protection regulation, GDPR, and the Data Protection Act 2018. The GDPR and the Data Protection Act will apply in relation to the obligations on an employer in terms of processing, storing and the destruction of personal information, be that third party or otherwise.

The provisions of the Bill strike the balance required in that they require the minimum information necessary. It is important to note they are in line with existing provisions in family leave legislation, in particular the Parental Leave Act, which this Bill amends. Information of a similar nature is sought for other forms of leave, such as parental leave, where information on the child can be requested, including on any disability. Similarly, for force majeure leave, a statement of facts must be provided to support the leave. We have achieved the correct balance, reflecting on the fact that the implementation of this request by an employer has to be done in a way that is GDPR-compliant.

With respect to the Minister, I do not believe he has achieved that balance. The phrase he used, “the minimum information necessary”, is not in the Bill, rather it states, "such information as the employer may reasonably require in relation to ... the employee’s relationship with the person", and relationship can be construed many ways, and refers to “the nature of the personal care or support”. That is the detail of what a person will do in terms of personal or support. It addition, the employer may require relevant evidence around the needs of the person concerned for significant care or support.

I urge the Minister to take on board reasonable points that were made on the language. We have this opportunity now between Committee and Report Stage. I have suggested one route and alternative perspective that would achieve the same aim as suggested by Senator Seery Kearney, which is something that makes clear the basic requirement that the relationship satisfies the criteria and not the nature or anything that might be reasonably necessary, but whether it fits the criteria, for example, that there is a medical need and the person is in one of the named relationships. Once that is evidenced, then by leaving it as to the employer’s reasonable requirement, which each employer may or may not interpret, the Minister is relying on each employer interpreting that in a way that will be necessary and proportionate, rather than making it clear in the Bill. Why not just make it clear in the Bill? Then every employer knows what it is meant to do. There will not be a situation where you have to have a long chat with an employer where it is asking you questions and it does not know what it can ask you and you do not know what you have to tell it.

Let us make it clear, and there is a chance to do that between Committee and Report Stage. Necessity and proportionality is one simple way to do it.

This could be done by a pro forma under a statutory instrument, similar to the likes of the temporary agency worker or the organisation and working time regulations. There are set forms that would hit the standard that is required. There is no reason why that could not be done by a statutory instrument afterward.

As I said before, we are reasonably confident we have achieved the right balance in the standards set. It is clear that what has been looked for here is whether the relationship between the employee seeking the leave and the individual is meeting the criteria of the directive in terms of the named relationships that are set out. I will chat to officials and confirm that we are happy that the right balance has been reached.

Amendment put and declared lost.
Section 6 agreed to.
SECTION 7

Amendments Nos. 6, 27, 42, 44, 45, 50, 59, 60, 64, 66, 67 and 69 to 73, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 6:
In page 11, line 1, to delete “Síochána.” and substitute “Síochána;”

These amendments are to correct drafting errors in the Bill as passed by Dáil Éireann. They ensure that the provisions of the Bill are technically correct and make no amendments to what is provided for. These amendments correct spelling errors where they occur, revise punctuation and insert accurate references, such as replacing “section 13F” with “section 13F(3)”. I recommend to the committee that these amendments are accepted.

I accept most of the amendments are technical, but I want to comment briefly on amendment No. 7. Am I correct that that is in the grouping? Is amendment No. 7 separate?

Yes, amendment No. 7 is separate.

Perfect. That is fine. I will not speak to the others.

Are we discussing section 7?

Not yet. We are just doing amendment No. 6 in section 7. We will go to amendment No. 7 after this.

Amendment agreed to.
Government amendment No. 7:
In page 11, between lines 1 and 2, to insert the following:
“(viii) seek or obtain any other relevant services.”.

This amendment proposes to amend section 13AA(1), which provides for the circumstances in which an employee is entitled to domestic violence leave. The amendment does not make any policy changes, but merely rewords the section for drafting clarity, including ensuring that the list of purposes for which an employee can avail of the leave is not exhaustive.

I will support the Minister’s amendment. However, I would like to raise some of the concerns that have been raised by Women’s Aid in respect of the non-paid element. If you require domestic violence leave, you are at a particularly vulnerable and precarious time of your life. To oblige a situation whereby an individual is minus their income, as well as everything else, brings on a financial hardship that is unwarranted.

I am being looked at funnily. Should I stop? Have I moved on?

We are on amendment No. 7.

Am I on amendment No. 8? Am I too soon? I apologise. I will rise again.

I welcome amendment No. 7. It is a useful Government amendment in terms of extending the purposes of domestic leave to include other relevant services. The list in the original Bill was well intentioned but inevitably there are certain other services, including, for example, financial services and the separation of finances, which is one of the most difficult things for people who are trying to leave a situation of domestic abuse, or a parent needing to go to a child’s school and make arrangements in that respect. There are a number of circumstances that may arise. It is a wise decision of the Government to include this slightly wider catch-all of other relevant services. I welcome it.

Amendment agreed to.

Amendments Nos. 8 to 11, inclusive, are related and may be discussed together.

I move amendment No. 8:

In page 11, to delete lines 38 and 39.

Regarding amendment No. 8, there is a line in this Bill that inserts a crazily high bar on the delivery of this urgent need, which is leave for domestic violence purposes. I refer to the phrase "the state of the economy generally, the business environment and national competitiveness". The idea that the state of the economy in general would be a reason for providing or not providing people with leave in situations where they are experiencing violence or abuse or are in danger is a little bizarre. We do not put that kind of caveat on lots of things, but to impose it in this regard would be a real danger. This is not a luxury; having domestic violence leave is not something that we add on because if the economy is doing great, we can afford to give the women something. It is an essential and sensible provision to include.

In terms of the regulations, I am not objecting to the new subsection (7)(b), which refers to "the state of society generally, the public interest and employee well-being". That recognises that there are many other circumstances which might mitigate the need for this leave - if we have much better social supports, for example, or if there are much better other supports around persons experiencing domestic violence. However, the idea that competitiveness and the business environment would be determinants is problematic. If we were to attach that to every kind of leave or measure, we would find ourselves in a race to the bottom because the economy is always in flux. We have had four or five crises of different kinds in the time I have been a Senator. It is a little bit of a hostage to fortune to place that as a caveat on something that is genuinely positive and laudable, that is, the fact that Ireland is stepping up and recognising domestic violence. This is part of a progression that began with the recognition of coercive control, which Seanad Éireann fought for and won. Domestic violence leave is part of a move forward but the language used in lines 38 and 39 is inappropriate and should be removed from the Bill.

This section relates to prescribing the rate of domestic violence leave pay and there are other issues which we will come to around leave pay. Amendment No. 9 seeks the deletion of the new subsection (7)(c) for reasons similar to the reasons behind my seeking the deletion of the new subsection (7)(a). This subsection refers to the "potential impact, including the potential for any disproportionate or other adverse impact, that the rate of domestic violence leave pay to be prescribed will have on the economy generally, specific sectors of the economy, employers or employees ". Again, if we are talking about something that is very particular because it is an emergency measure, then what we do not want is special pleading from a specific sector like hospitality, for example. We do not want arguments against decent rates of domestic leave pay because a specific sector of the economy cannot pay them. Hospitality is a specific sector of the economy and is great at special pleading. The Minister is looking at me sceptically, but these provisions are in the Bill. If we do not think these measures or provisions will be used, why are they in the Bill? Why include them? Why put in place caveats in respect of special sectors of the economy in the context of whether people will be given pay? Why include those provisions? It is better for the legislation to be clear that this is something we are doing wholeheartedly and clearly because we are focused on the rights of those experiencing domestic violence and it is not something that will be variable vis-à-vis whether sectors of the economy can afford to be decent.

Amendment No. 10 seeks to insert a new provision into the subsection (7)(e), which explicitly includes "service providers working in the area of domestic violence" in the expert opinion that the Minister may consider in the context of paragraphs (a) to (d), inclusive. All of these amendments relate to the regulations that the Minister will make with regard to domestic violence leave and the rates of leave pay. The views of employer representative bodies and trade unions are included, as is the need to obtain expert opinion. However, one of the missing pieces, which may or may not be construed as part of expert opinion, is the specific opinion of service providers. Service providers, those which people are taking domestic violence leave to access, are going to be able to give the Minister very important information in respect of what kind of time people need and what is actually involved when somebody is seeking one of the services under this legislation. These service providers may be covered by the phrase "expert opinion, research, national or international reports", but explicitly naming them would be very useful. They are the bodies to which persons availing of this leave will be going and they have the greatest sense of what is needed.

Women's Aid wrote to Senators to raise issues relating to the rate of pay, and there are questions in this regard. There are differences of opinion on the idea of full replacement. I understand that Women's Aid is seeking full replacement. In general, there is a concern in the context of having unequal levels of payment in terms of who is getting what, but there is a unique circumstance relating to domestic violence leave that favours having full replacement, namely, that one of the main forms that domestic abuse takes - and we know this from coercive control - is financial control. The very fact of having a dip in one's income is, itself, a potential signal to an abuser. Those who are in coercive control situations, which are often tied up with domestic violence, do not have financial independence or full control of their own finances. One of the things that makes it very difficult for people to leave an abusive situation is the scrutiny of their finances and it is one of the reasons domestic violence is leave is so important. People often do not have control of what they are doing except for when they are at work. Those are the hours that are accounted for which allow them to make arrangements and that is why it is important that they take leave then because they do not have control of their evenings, in some cases. Every hour after work might be monitored by an abusive partner. Similarly, their finances may be monitored. Regardless of one's view on replacement rates in general, this is a particular circumstance that should be considered in the making of these regulations in terms of the rate of domestic leave pay. That is where that expertise on domestic violence hopefully comes in.

Amendment No. 11 also refers to the issue of service providers and their expert opinions. The strength of this is that it gives a wider level of input for them. I wish to indicate to the Minister that I might table some more amendments on this matter on Report Stage because these regulations will be the crux of how this works, and whether it actually works. I do not want us to be dependent solely on the Minister's goodwill or the goodwill of a future Minister. I would like the regulations themselves and the criteria around them to be really clear and rights driven, rather than interest balancing.

I am in agreement with much of what Senator Higgins is saying about the peculiarity of the criteria when making regulations. In a way, providing domestic violence leave is another step forward for us as a nation in saying this is not tolerable. Creating a set of circumstances whereby we will provide it or limit it depending on the economy, does not send out the right message. That is not in any way in keeping with what our position and intention as legislators would be. There are many unnecessary and peculiar things in the Bill that read in a meanspirited way and contrary to the thrust, momentum and intention of this legislation.

With regard to the Women's Aid perspective, the idea that we would align what a woman is paid, if she needs to take domestic violence leave, with that of sick pay and not with a full day's rate of pay brings on a level of financial hardship at a very precarious and vulnerable time. When that level of coercive control is in place, everything is monitored. People have their phones cloned. Absolutely everything in their life is controlled. Thus, seeing a sudden dip in wages gives rise to queries. If someone is controlling another individual to that point, he or she will give a good guess about 70% of the individual's rate of pay. The Women's Aid perspective on this is valid, as it calls it, in the context of a safety risk. Women's Aid is absolutely right. We should be hesitant about supporting or putting in place anything that points to an individual exercising an opportunity to get out of domestic violence or to free himself or herself from such a situation and might give that away to the perpetrator. We should be assisting that individual in keeping his or her privacy and not being exposed to this safety risk.

I very much welcome the introduction of domestic violence leave in this legislation. It is very important. I ask the Minister to consider amendments Nos. 10 and 11, because they are absolutely worthy of consideration and inclusion in the Bill. As for the criteria when the Minister is determining what the rate of pay should be by regulation, this is a copy-and-paste job from the workers' rights legislation we have. The sectoral employment orders, the national minimum wage and sick pay are the criteria. I know the percentage rate of pay is not specified here but we know from sick pay that the rate is 70%. It is worth highlighting it will be less than 70% if the board and lodgings are included. Let us think about that for a moment. If a person who is experiencing domestic violence wishes to seek domestic violence leave and is already living at his or her workplace or availing of bed and board and lodgings, he or she will receive less than the percentage the Minister will specify. A considerable issue here is putting ourselves into the shoes of somebody who will put himself or herself forward to take this leave. The real question is as to whether a person will shy away from taking the leave if he or she has to think twice about it.

We really want this leave to work. We wish to see that those who need to take this leave will take it up. However, if they will be out of pocket and there will be issues about payroll and having to run through a different rate of pay relative to everybody else, people will shy away from saying they need to take this leave. The appeal from the three of us here this evening and, I am sure, from others, is for the Minister to really consider the criteria being set down. The criteria seem to consider everybody else other than the person, especially in using the state of the economy generally or the impact on the domestic economy. Such a consideration seems heartless and unrelated to the leave in question. I urge the Minister to tighten up the criteria and to send a signal that it will not be the 70% rate and should be the full rate, because it would set out a very important message. Countries such as New Zealand, Italy and others have set domestic violence leave at a full rate of pay. I would love to see our country follow suit.

I risk being slightly repetitive. As Women's Aid noted, during the Second Stage debate in the Seanad, the Minister stated the Government is looking at parity of pay for domestic violence leave with sick pay. As my Labour Party colleague just pointed out, the proposal is modelled on the Sick Leave Act 2022 among others and is in line with the proposal by the Minister's Department. The report on domestic violence leave recommended that the daily payment from the employer be 70% of daily salary rate capped at €110 per day and that a minimum rate entitlement should also be set. Sinn Féin disagrees with that on a number of grounds, including financial hardship. Women experiencing domestic abuse and coercive control are often subjected to financial abuse, frequently do not have access to savings or family assets and have to survive on very tight budgets. Losing 30% of their daily salary if taking the leave may be very difficult for them, create real hardships for women and children and play against them taking domestic leave.

Domestic violence leave may be taken by women who are in the process of questioning the relationship or leaving the abuser. The need for counselling, court and relocation are some of the reasons for taking domestic violence leave. Separation is not only a very dangerous time but also one when women face additional and significant expenses such as legal expenses and finding alternative accommodation. Therefore, a decrease in income would be highly problematic.

Safety risks are another issue. If a woman's income is monitored or appropriated by her abuser or both, a change in her normal salary may alert the abuser. That point has been mentioned already. On privacy, unfortunately, there is still considerable stigma attached to domestic abuse and fear of the abuse becoming common knowledge in the workplace may prevent a survivor from accessing domestic violence leave. If the normal salary is paid, this would minimise domestic violence leave being identified in payslips and payrolls, while employers could still keep track of it separately. We disagree with the proposal and strongly believe that domestic violence leave should be paid in full at the normal rate of pay. I raise these issues in order to bring an amendment on Report Stage if necessary.

I echo what other Senators have been saying. I wish to speak on behalf of women in Dundalk Women's Aid with whom I work quite often and who struggle to get out of domestic violence. We heralded this legislation as positive - which it is. However, we are putting up an extra barrier with a potential financial penalty and, possibly, safety risks and a lack of privacy. I cannot remember the number of efforts it takes by a woman to consider leaving a domestic violence situation. The wish and spirit of this Bill is not to put up another barrier or for people to feel domestic violence leave is at arm's length, or that there are risks attached to applying for such leave.

I would appreciate it if this were to be examined. It is a little meanspirited.

It is important to state that the issue is not about whether to provide domestic leave but rather the rate. That was misstated earlier.

The introduction of new leave is negotiated with the social partners with whom the Government engages. As part of that engagement, some small employer groups raised real and genuine concerns, considering their circumstances, about the introduction of this leave, particularly as paid leave. Nevertheless, it is important the Government has taken the important step of going ahead.

The Senator asked about setting the rate. I am not sure it is correct to discount completely the views of employers in determining the rate, especially when that determination also involves the consideration of the state of society generally, the public interest and, importantly, employee well-being. Consideration of the needs of specific employees is part of what we are trying to achieve and is part of the consideration, but I am not sure that entirely removing consideration of the views of employers sets the right balance.

The Senator also mentioned the issue of replacement. It is important to remember we have included a two-year review in this legislation to examine the take-up of domestic, sexual and gender-based violence, DSGBV, leave. We are doing something new here. We will be among the first countries in Europe to introduce such a measure. Only a small number of countries in the world have brought in paid leave at a national level. A couple of federal states in various jurisdictions have brought in such leave. We are putting in that review position. We normally let legislation go a little longer, but because of the importance of this, we are reviewing it in two years to consider the level of take-up. Where we see barriers to take-up or wider issues with the way in which the legislation is framed, we will have the opportunity at that stage to bring forward relevant amendments.

Amendment No. 11 seeks to include explicitly domestic violence service providers. I believe their views are already included as the Bill is set out. The relevant provision is contained in section 13AA(7)(e) which refers to expert opinion, research and national and international reports. Those relate to the matters specified in sections 13AA(7)(a) to 13AA(7)(d), inclusive. I particularly draw the attention of Senators to section 13AA(7)(b) which refers to the state of society generally, the public interest and employee well-being. I see that as a clear route to bring in information about employee well-being, especially for employees who have suffered from DSGBV. There is a clear route and there could be no more appropriate source of information in respect of decisions about the rate. Those provisions are included in the legislation so I do not believe it is necessary to list explicitly the views of service providers. I believe there is already protection in that regard.

The problem, as others have pointed out, is that the tool the Minister has described has been borrowed from another toolbox. It is not a tool designed for this situation. The Minister referred to balancing different interests. Are we tackling domestic violence and trying to introduce domestic violence leave? A rights-based approach recognises domestic violence as an egregious breach of human rights. We as a society should have no tolerance for it. Workplaces and all other parts of society are due to challenge and address domestic violence. Is that the approach we are taking? Are we balancing our approach to measure its effect on employers and employees? Tackling domestic violence is not just a nice thing for employees to have. It is essential to make our society more equal. It is central to making us a society that does not have the scourge of violence, domestic violence and violence against women in different forms. Those acts of violence occur internationally but have a long history in Ireland. This is a different matter from negotiating between interest groups. It is a rights-bases piece. It is not a matter of balancing the interests of employers and employees. This is something we as a society are trying to take robust steps to tackle. I do not know who is concerned about domestic violence leave in particular business sectors and I will not hazard a guess. The Minister has made it clear that the issue is not about whether the leave will happen but rather about the rate that will apply. If we balance interests in the way the Minister has suggested, we may end up with a meaningless rate of domestic violence leave with so many caveats that it becomes effectively unusable.

I appreciate the Minister has referenced on multiple occasions the section that mentions the state of society generally, the public interest and employee well-being. I am not trying to remove that part of the Bill. I like that section. In fact, I think the references to the state of society generally and the public interest are sufficient to cover the economic elements. Where there are economic issues that might affect the public interest of economic factors within society generally, section 13AA(7)(b), which refers to the state of society generally and the public interest, is sufficient. However, we should not be balancing the public interest, society and employee well-being against the specific preferences of different sectors, whether it has been a good or bad year for any one sector and whether companies in some sectors believe they can afford to offer this paid leave. I urge the Minister to consider section 13AA(7)(a) and some of the language that is used in section 13AA(7)(c). It is still inappropriate. The Minister is not an adjudicator around a balancing of interests. He is the Minister with responsibility for equality and is trying to address a social ill and ensure our employment regulations reflect and support that. That consideration needs to be centre stage in the mission. I urge the Minister to take a more ambitious and thoughtful approach and to use the right criteria. I also urge him to listen. There are separate issues around piece work, extra work and overtime, but we need the basic rate of pay to remain the same because of the safety issue. The Minister is recommending the use of a particular tool for a particular set of circumstances but the circumstance we are considering is one in which a person may be unsafe.

I know it is hard to bring forward these arguments. We argued in the Seanad for coercive control legislation and were told by a Minister for Justice that all the tools we had already would work. We kept saying they do not work. It took quite an argument for even the officials to understand that coercive control was particular and required particular measures to tackle it. I am glad there was a shift in understanding and a willingness to listen to the detail and reality of people's experiences and to design policy that works for people rather than taking existing policy tools and simply trying to ram them into a new situation. There was a real breakthrough on coercive control.

As the Minister has said, we have the opportunity to be leaders in respect of domestic violence leave. It would be a brilliant initiative if we had good legislation. Because we are leaders and one of the first to do it, we must do it right. Let us design it for the actual needs of those experiencing domestic violence. Let us set a good template rather than borrow an old template. Let us set a good template for other countries which I hope will follow and bring in similar leave.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 11, to delete lines 42 and 43, and in page 12, to delete lines 1 to 3.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 12, line 6, after “opinion” to insert “, including that of service providers working in the area of domestic violence”.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 12, between lines 9 and 10, to insert the following:

“(fa) the views of service providers working in the area of domestic violence;”.

Amendment put and declared lost.

I move amendment No. 12:

In page 12, line 13, to delete “in loco parentis” and substitute “providing parental care”.

Amendment, by leave, withdrawn.
Section 7, as amended, agreed to.
SECTION 8

Amendments Nos. 13 to 16, inclusive, and 74 are related and may be discussed together by agreement.

I move amendment No. 13:

In page 13, line 2, after “arrangements” to insert “including”.

All the amendments in my name in this group make the same point. I will talk about the Title first. I do not believe the Bill at any point stipulates the kinds of working arrangements that might be available. Much emphasis has been put on remote working over recent years for obvious reasons. Remote working is only one part of flexible working; there are many others. Without reference to the types of possible flexible working arrangements, people will not know what to ask for. For instance, it can be core working hours, flexible hours or compressed hours. Does any part of the Bill spell out what flexible working arrangements actually are?

It is great that this is being offered to carers and parents. While we are making it easier for them, we are not challenging the status quo that it is normally women who take parental leave and who will request flexible working arrangements. In 2020, Permanent TSB carried out a survey which indicated that 33% of men and 22% of women would not take parental leave as they would be concerned about it damaging their career progression. The level of uptake of parental leave is extremely low. Even in my old job in advertising and marketing, taking parental leave was unheard of; people just did not do it. I have always been of the view that flexible working arrangements should not just be for parents and carers; it should be for employees. That is how we change the culture.

Without having reference to the types of flexible working arrangements available, how can we communicate to people that they will now have the option of doing this? How will they know? How might employers know how to manage it when employees come to ask? It is asking a lot of people for them to know themselves, for example, that they can ask for compressed hours when the culture is not there for such hours. Other countries' legislation has standardised types of flexibility. For instance, Finland has core working hours and predominantly for office workers it has compressed hours. It has flexible hours and it has remote working hours.

As has been discussed throughout, it is an ideological debate at this stage. Is it for parents and carers or can it be for all workers? I am still in the persuasion mode I am hoping that it can be expanded to all employees.

I want to speak to amendment No. 15.

The Senator may speak to all of the amendments in the group.

Indeed. I agree with everything Senator Currie said. In some ways our amendment strikes to the very heart of the Bill and what I see as an artificial distinction between remote work and flexible work. In the world of work people want flexibility on both hours and location. We have already heard the debate here about who should be included - whether within a family a niece or nephew or even a neighbour is included. As we all know, life is messy. I am very uncomfortable that we would prescribe the types of caring responsibilities that take place in households.

Flexible work is not just about children or care, although, obviously, that is what is being alluded to here. It is about so much more than that. It is about the ability to take public transport or to consider alternative means of working. I continually come up against this and I am sure the Minister is also hearing it. People want flexible hours because travelling to work during rush hour will take them twice as long than would be the case if they can start a bit earlier or a bit later. That is a really simple thing. If we are serious about trying to encourage people onto buses or trains or to cycle - I know from trying to encourage people to cycle that they do not want to cycle while the city is heaving but maybe cycle a bit later - then we must allow those flexible hours. My appeal is that we allow flexible work for all. I know this legislation is subject to review within a certain period, but why wait for that review? Why not do this now?

I refer to the difference in the uptake of flexible work between men and women. A legitimate concern has been expressed that in giving flexible work rights to certain workers, only those who predominantly have the caring responsibilities will take that up. That is the antithesis of what want. We want greater equality in the household between men and women, and within workplaces we want just as many men as women taking up flexible work arrangements. I would cast a serious question mark over the incidence of men requesting flexible work arrangements because of caring responsibilities. We need to encourage as many people as possible to be able to stay in the workforce when they have other responsibilities in their lives. How can we ensure people can stay in the workforce when they do not necessarily have easy public transport or other transport options?

The right to flexible work for all employees would really help those in a number of categories.

First are those with a disability. Compared with every other EU member state, Ireland has the largest number of disabled persons who are jobless. That is a stark figure. Second are lone parents. Compared with every other EU member state, Ireland has the highest share of jobless lone parents. The Minister might say that lone parents are somewhat covered in these flexible work provisions, but only up to a certain age, after which caveats apply. Where does this Bill speak to those with disabilities? We are not speaking to them at all. This legislation could be a tool for trying to improve the appalling employment rates among those with disabilities. I have no doubt that, in the broad Department he manages, the Minister wants to introduce legislation that encourages people with disabilities to join the workforce and that said legislation will come further down the line, but there is an opportunity to do it in the here and now.

It is sad that we are seeking to have an artificial distinction between remote work and flexible work. There have been myriad surveys. Senator Currie mentioned the Central Statistic Office's data on the demand for flexible work in terms of place and hours of work. I appeal to the Minister to reform this Bill dramatically so as to ensure that flexible work is available to all.

I support these amendments. I have similar amendments to the section on remote working. The detailed points made by Senator Currie and, though blunt, the wide frame of amendment No. 15 are important. Despite its Title, the Bill's contents are actually about needs – the urgent needs of those suffering domestic violence, the urgent need to medical care and the need to care. That is not work-life balance, though. Rather, that is addressing urgent care needs. The Title should read, "Work (Accommodation of Care Needs)", which is different from "Work Life Balance". We have always understood work-life balance to mean having a life and a job that fit together well.

There are many reasons for people to seek flexibility. I understand that there is a particular urgency around the need for flexible working arrangements for those who are balancing care needs but claiming that we have achieved work-life balance because we are letting people who have to contribute to society in some other way design their work around that contribution is not the same as work-life balance. There would be a danger in framing flexible working as just being for these care needs. There is an urgent need to accommodate them and I understand why the Minister might begin there, but despite what it is called, this is not a transformative work-life balance Bill. People might want to move to a four-day week for many reasons, and I might reserve the right to table an amendment on this matter on Report Stage. Perhaps people are volunteering. Perhaps they are artists in other parts of their lives and a four-day week would make a difference. Perhaps they want to spend three days in nature. None of this has anything to do with needs, but with people's work-life balance. Compressing 40 hours of work into a four-day week might make a significant difference to them. In terms of remote working, maybe they work better with music in the background. Maybe it is a matter of the commute. Maybe people have environmental reasons for not wishing to commute to work when they do not believe it is necessary to be there in person every day to perform their jobs and deliver as employees.

I understand the urgency for beginning with these particular care needs, mainly because society has been relying on people to deliver unpaid care and extra care. When that work is not accommodated by schedules and employers, it creates extra pressure, but I am worried that we are narrowing the meaning of "flexible employment". Coming out of Covid is a transformative moment and we know that many workplaces have been proven to work well with flexible arrangements and hybrid work being a greater part of the package. If we narrow the definition to just asking what concessions employers might give to employees instead of asking how the world of work could be redesigned to fit better into life and society, we will be framing it as an assumption that the employer does not want people to do flexible work because it is a disadvantage and will only make a concession if the need is proven. I will come to this point later.

I am concerned about the needs framing being used in the section on remote working as well as in the section on care needs. If someone is looking for remote working, why must he or she frame that in terms of needs instead of as an option? The narrow framing of flexible work arrangements towards care seems to be leaking into the wider discussion on flexible work and how we approach remote working. I understand why the Minister might be beginning at this point, but I am worried that we are setting a template that is needs based rather than possibility based. I urge him to consider these amendments.

Section 8 inserts a new Part IIA into the Parental Leave Act to provide for a right to request a flexible working arrangement for caring purposes. The provisions of the new Part IIA go towards the transposition of Article 9 of the work-life balance directive. Part IIA has been carefully drafted to ensure that the directive is correctly transposed and provides the right to parents and those providing personal care or support for serious medical reasons to be a person who falls within the range of family or personal relationships set out in the directive.

A definition of "flexible working arrangements", which was Senator Currie's point, is set out within the definitions section of the Bill. It reads: "'flexible working arrangement' means a working arrangement where an employee's working hours or patterns are adjusted, including through the use of remote working arrangements, flexible working schedules or reduced working hours". These are the three elements that I have always thought of – remote working, flexible schedules and a reduction in hours. This definition is reasonably clear as regards what constitutes flexible working and is stated in section 3, which amends the principal Act. It will be repeated in the code of practice to be delivered by the Workplace Relations Commission, WRC, in terms of how the legislation will be implemented.

Senator Currie's amendments seek to broaden the right. The review period of two years that is set out in section 13H allows us to consider broadening the entitlement.

Regarding the narrower application of flexible working to remote working, this legislation is the result of two Bills, those being the right to request remote working Bill, which the now Taoiseach was developing while he was Minister for Enterprise, Trade and Employment, and the existing work-life balance Bill. When we considered bringing the two together, we discussed the application of remote working to all workers as opposed to the application of flexible working to parents and carers. I wanted to enunciate that, in the review period, we would examine whether flexible working should be extended more broadly. Reading the text around the review, that intention could be more explicit. There is a direction of travel that I would like to see us go in terms of making this provision broader.

While I am not in a position to accept the amendments, I will look to make the review under section 13H more explicit to ensure that we are enunciating that extending flexible working to groups beyond just parents and carers would be considered.

I thank the Minister for taking on board the direction of travel regarding what we would like to see in the review, although this was an opportunity to include it here and now. For the reasons I stated, there is a difference between legislation that will predominantly help women and, on the other hand, gender equality legislation. The knock-on effect of that is that we are dealing with numbers of women falling out of the workforce, especially as they have children, but we are also talking about a new generation of the workforce that works very hard and wants more flexibility. Giving people the flexibility to work compressed hours and take longer holidays is where the workforce is going. Other countries are recognising the fact flexibility is not just for parents and carers but for everyone.

Moreover, when there are standardised forms of flexibility, there will also be a better ability to disconnect. If people have various agreements in the office and if some people are entitled to flexible working arrangements and others are not, that is a perk, and sometimes people feel they need to work harder when they are given a perk. Having standardised forms such as I mentioned, and which the Minister mentioned in the broader sense of the Bill, will help to put parameters around what that flexibility is. It is good that he made those references in the legislation to reduced hours, flexible working arrangements and remote working, but we need to help employers with this if it is to do what it should do, namely, create a cultural shift in the workplace.

Amendment, by leave, withdrawn.
Amendment No. 14 not moved.

I move amendment No. 15:

In page 13, to delete lines 4 to 37, and in page 14, to delete lines 1 to 11 and substitute the following:

“13B. (1) Any employee may request a flexible working arrangement.”.

Amendment put and declared lost.
Amendment No. 16 not moved.

Amendments Nos. 17 to 21, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 17:

In page 13, line 24, to delete “shall” and substitute “may”.

The Minister spoke about the review. In a way, we have already had a trial period because of Covid. I worry that if we lower our ambition for two years and let the status quo sink back in, we will be on the back foot. We had a trial period for remote and flexible working and it largely worked. There were some learnings or improvements to be made, but we are losing some momentum by making flexible work available to some people some of the time, based on needs, after a period when it has been a widespread practice. I worry that we are narrowing that down. We should not be at a point of piloting this idea. We should try to take the momentum and move as far as possible.

One problem is this concessionary mind-set that wrongly assumes flexible working is always going to be a burden on an employer, whereas there is much evidence it does, as Senator Currie outlined, deliver very positively. It also means we can keep a lot more women in the workplace who have been shown by the figures to fall out of the workplace at various points.

While I do not think this is the intention, the way in which section 13B(3) is framed suggests a hard measure whereby the flexible working arrangement for the care of a child "shall" end not later than the date on which the child has achieved 12 years. Why is the State requiring that this flexible working arrangement end? If an employer and an employee are happy to have this continue, why would we provide that it must end not later than a certain date? That is the language used here. The amendment, which is a simple one, will simply replace "shall" with "may" in order that this will become the point at which the arrangement may end. The evidence for this came through when lone parents were required to have their care work become invisible within the system in that they became ineligible for the jobseeker's transitional payment when their child reached the age of 14, a point that relates to my other amendments, which concern the age provision, by making them have to be available full time from the point at which their child turned 14, in contrast to other parents in the State. It did not look to the reality that teenagers often still need care, and that while the parent may have some availability, he or she may still need flexibility. Those hours between 4 p.m. and 6 p.m. might be very important. There have been cases, for example, of hostile scheduling, where older workers, who might have slightly better rates of pay, find themselves always scheduled for the evening shift. We have seen this in retail, where older workers were always being scheduled for the evening shift because the employer knew they had teenage children whom they did not want to leave unsupervised between 4 p.m. and 9 p.m. Perhaps one 14-year-old would be fine and would be able to be at home on his or her home, whereas another one would not be. Similarly, in the case of 12- and 13-year-olds, the idea of ending the provision at that point is very blunt. When a child reaches the age of 12, that may be a useful point to negotiate a flexible working arrangement, but the idea of the flexible working arrangement ending, and bluntly being required to end, at that age is not appropriate. When we send out a signal like this, it almost acts as a perverse measure that encourages employers to end it at that point. I recall that when the Department of Social Protection sent out a circular stating that child support did not have to be paid after a certain point, that led, of course, to a fall-off in child support payments. When a signal stating something "shall" end is sent out, that is very negative.

A number of other Senators also tabled amendments in this grouping, so I will give them some space. My other amendments relate to the provision concerning children with a disability. Again, it is not clear why the age of 16 years is specified. It should be 18 for all parents. Children of 16 years cannot apply for the disability allowance, as I understand it, and do not qualify for their own payment at that age.

Do they? Is that the argument for the provision relating to 16 years? I was concerned that there was a state of limbo where children reach the age of 16. Even in that circumstance, the child is still a minor. I refer to children with a disability.

It could be that two years of having to make complicated special arrangements is exactly what makes a parent who is balancing out the cost of care, especially the very expensive cost of additional care, with the value of their continued employment fall out of the workplace in that two-year period before, for example, a child with a disability might go to college or move on. I echo Senator Sherlock's point about disability. Having curtailed capacity or needing to manage one's capacity is one of the very good reasons people might be looking for flexible work.

I want to speak on this section as well as I have a couple of amendments. I can never put it as eloquently as Senator Higgins but I am going to try. My amendments are Nos. 18 and 19 and I have tabled amendment No. 21, which is the same. The age of 12 is far too low. The age limit does not make sense. If a 13-year-old or an older teenager requires the care of a parent or legal guardian, the Bill should not exclude them from availing of the flexibility of work-from-home benefits. While the Bill does include greater provisions for parents of children who have disabilities or long-term illnesses, there are many children who require care who may not have a disability or a long-term illness. For example, children may have behavioural issues. More often children have mental health issues. Sometimes these issues can result in self-harming. I am not too sure if anybody in this room has had a child who self-harms or who would be on suicide watch. That parent is required there all of the time. He or she is literally watching the child morning, noon and night to make sure the child does not take any action that might cause very serious harm or death. The age of 12 just seems a little bit young. I would like it increased to 16. With regard to the disability provision, I would also like that raised to age 18.

Tusla has a short guide for parents arriving into Ireland. It answers the question, "Can I leave a baby home alone?" with, "No, not even for a few minutes." It states that a young child should never be left at home alone, not even for a short time. On the question of leaving an older child at home alone, the guide states that it is recommended that children under the age of 14 should not be left home alone for more than a very short time and that a child over 16 can be left home alone. We are at a variance here, coming back to Senator Higgins's point around "shall". The age limit of 12 is at a variance with Tusla advice with regard to children and minors being left alone. Are we saying children over 12 do not need their parent or that an arrangement that is working in the context of a workplace should be set aside because the child has attained 12 years of age? Tusla's advice is completely different. There is a disparity and we need some sort of consistency with regard to ages.

I thank the Senators. There are several amendments which seek to amend the age limits at which a parent of a child is entitled to leave for medical care purposes and a request for flexible working arrangements. The age limits for relevant parents to request a flexible working arrangement for care purposes are aligned to the age limits for applications for parental leave, that is, the leave can be taken before the child's 12th birthday, or 16th birthday if the child has a disability or long-term illness, or the arrangement can be put in place until the child's 12th or 16th birthday. It is important to say the directive itself sets a maximum age of eight. The provisions we have here go significantly beyond what the directive sets out in this regard as we are going up to the age of 12. In addition, under the Bill, and Senator Keogan touched on this, a relevant person can also qualify for the right to request a flexible working arrangement where they are providing personal care and support for a serious medical reason, regardless or the age of the child. This may also include an adult child where there is a serious medical reason.

On amendment No. 17 and the issue of "may" versus "shall", obviously a parent or carer is fully entitled to agree a flexible working arrangement with an employer beyond the age of 12. It just will not necessarily be given the full range of protections that are contained within this legislation. There is nothing in the legislation that stops an arrangement that is working. It just will not be covered directly under this legislative process.

The problem is that the "shall" sends a signal that the arrangement must terminate. A simple thing would be to use "may" to indicate it may be reviewed at that point and then continued rather than providing that it shall end not later than the child's birthday. This sends a very strong punctuation piece and would become the de facto end so that people would not get flexible leave arrangements after a child was 12. At that point a person is in an employment long enough. By using this language, we are having this arrangement fall off a cliff and going back to the very beginning. It is not like when someone is first applying for a job and maybe negotiating a contract. The person is in a job and trying to negotiate based on nothing, rather than saying the arrangement is working, asking to continue it, and having a review point with possible adaptation of the arrangement that is in place. I cannot see a reason not to provide that it may end at that point. Another way to approach it would be a provision that it shall end, excepting where, for example, the employee and employer agree to continue it for another period. I would like to put something in that encourages the option of continuing it rather than leaving it to the individual to start a whole new cold negotiation and sending a signal that the State expects this arrangement to end when the child reaches the age of 12.

To add to the good points that were made about medical need, and those are quite extreme medical need situations, in terms of the child of 16 being left alone, there is a little bit of that limbo of what is meant to happen to a 12- or 13-year-old child between the hours of 4 p.m. and 6 p.m. I know this because I have worked extensively with lone parents. In terms of the impact of that caveat of the age limit of 14 when it came in on them, in a way it is easier with a younger child who can go into childcare. One cannot hire a babysitter for a 14-year-old in the same way or put him or her into care. A lot of the time it is simply about being present in the house with them, doing something completely different but being present so they are not alone in that house. That can be very important. Even an equalising of the age limit to 16 for all measures would be very constructive. That was the proposal made by Senator Keogan. Is it the case that disability allowance can be accessed from when somebody is 16? Can I have that confirmed as well?

Disability allowance is a matter for the Department of Social Protection.

It is the intersection. I was trying to see how it intersects.

I cannot give the Senator that answer but I trust the Senator.

I will take it from the Senator.

Amendment put and declared lost.

I move amendment No. 18:

In page 13, line 26, to delete “12 years” and substitute “16 years”.

Amendment put and declared lost.

I move amendment No. 19:

In page 13, line 30, to delete “12 years” and substitute “16 years”.

Amendment put and declared lost.

I move amendment No. 20:

In page 13, to delete line 35.

Amendment put and declared lost.

I move amendment No. 21:

In page 13, line 35, to delete “16 years” and substitute “18 years”.

Amendment put and declared lost.
Progress reported; Committee to sit again.

When is it proposed to sit again?

Cuireadh an Seanad ar athló ar 9 p.m. go dtí 10.30 a.m., Dé Céadaoin, an 1 Feabhra 2023.
The Seanad adjourned at 9 p.m. until 10.30 a.m. on Wednesday, 1 February 2023.
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