Amendment No. 1 is in the name of the Minister and arises out of committee proceedings. Amendments Nos. 1 to 4, inclusive, are related and will be discussed together.
Work Life Balance and Miscellaneous Provisions Bill 2022: Report and Final Stages
I move amendment No. 1:
In page 3, line 8, after “purpose” to insert “and other purposes”.
I am pleased to be here to speak on Report Stage of the Work Life Balance and Miscellaneous Provisions Bill 2022. It is really important legislation that will allow us to implement two final elements of the work-life balance directive from the European Union. It addresses leave for medical care purposes and the ability to seek flexible working arrangements for families and carers. We are also using this Bill to introduce the right to request remote working for all workers and two other significant elements, which are the increase of the length of time in which a woman returning to work after giving birth can take breastfeeding breaks from the current six months after birth up to two years, and the introduction of five days of paid domestic violence leave. That is a significant provision. We will be one of the first countries in the European Union to have paid leave for victims of domestic violence.
Amendments Nos. 1 to 4, inclusive, are grouped. All of these amendments are technical. Amendments Nos. 1 to 4, inclusive, amend the Long Title of the Bill to include a reference to the new entitlement under the Bill introduced on Committee Stage to domestic violence leave and to the right to request remote working.
We have no difficulty with the amendments, which are just technical. I had to dip out of the debate earlier. I made points which were raised by the Carers' Association. I reiterate those to the Minister. Even if he cannot address those today, I ask him to bear them in mind for the next stage or for a response about them at some point if they cannot be included.
I touched base with officials about that. Regarding who is entitled to leave for medical care purposes, section 5 of the Bill inserts a new section 13A into the Parental Leave Act to provide for an entitlement to five days of medical care leave for parents and carers. An employee can take the leave to care for a person of whom the employee is the relevant parent, the spouse or civil partner of the employee, the cohabitant of the employee, a parent or grandparent of the employee, a brother or sister of the employee, or a person other than one specified who resides in the same household as the employee and is in need of significant care or support for a serious medical reason. That list of entitlements is in line with Article 6 of the work-life balance directive and the definitions provided for in Article 3. This type of leave is short-term. It is different to carer's leave, which is a much longer-term commitment. This leave is short-term, at five days. It provides a degree of flexibility and allows non-familial people living in the same household to avail of the leave. I am not sure if that fully addresses the Deputy's earlier points but it outlines what has been provided.
Amendment agreed to.
I move amendment No. 2:
In page 3, line 9, to delete “entitle” and substitute “provide for the entitlement of”.
Amendment agreed to.
I move amendment No. 3:
In page 3, line 9, after “purposes” to insert “and domestic violence leave”.
Amendment agreed to.
I move amendment No. 4:
In page 3, line 10, after “purposes;” to insert “to provide for the entitlement of employees to request remote working arrangements;”.
Amendment agreed to.
Bill recommitted in respect of amendment No. 5.
Amendments Nos. 5, 32 and 35 are related and will be discussed together.
I move amendment No. 5:
In page 3, lines 13 and 14, to delete all words from and including “and” in line 13 down to and including line 14 and substitute the following:
“, the Adoption Act 2010, the Irish Human Rights and Equality Commission Act 2014, the Workplace Relations Act 2015 and the Birth Information and Tracing Act 2022; and to provide for related matters.”.
I note the motion was debated earlier on these amendments and they are being recommitted.
On Committee Stage, I noted my intention to bring these amendments to the Adoption Act 2010 to alter the quorum requirements for meetings of the board of the Adoption Authority of Ireland, AAI, in order to provide greater flexibility in the context of the board members who may form a quorum and thereby ensuring that adoption orders will be made. I am also amending the Birth Information and Tracing Act 2022 to enable Tusla or the AAI to undertake a trace or verification in situations where the person applying cannot provide supporting evidence a parent named on a birth certificate is deceased.
On amendment No. 32, the board of the AAI consists of seven members, including the chair, deputy chair and two members with social work experience. The quorum of the board is provided for in section 106 of the Adoption Act 2010. Current legislative requirements mean that a quorum consists of the chair or deputy chair and two ordinary members, one of whom must be one of the two social workers on the board. The way the Adoption Act 2010 is written, when the chair is in attendance, the deputy chair does not count towards the two ordinary members required. In addition, the existing quorum requirement puts a considerable burden on the two ordinary members of the board with social work experience. The AAI has advised that the quorum requirement set out in the Act is onerous, especially in the context of an increasing number of board meetings and an increasing requirement for board meetings at very short notice. The authority has advised of a serious risk to the effect that the specific constraints set out in the Act mean the board will not be able to meet and, therefore, that adoption orders will not be made. This is a particular issue because of the growing number of children aged 17 years being adopted from long-term foster care and board meetings being required at short notice. The proposed amendment to the Act will provide that the quorum for a meeting of the board will be the chair or deputy chair and two other members, one of whom may be the deputy chair in circumstances where the chair is presiding. This proposal offers greater flexibility in the board members who may form a quorum along with the chair by allowing the deputy chair to be recognised as one of those members and removing the requirement one of the two board members must have social work experience.
Amendment No. 35 relates to the Birth Information and Tracing Act 2022, which became law earlier this year. The Act provides for the release of identity information to a person who was adopted, nursed out or boarded out, who was subject to an illegal birth registration or who resided in a mother and baby home or county home institution as a child, known as a relevant person. Equally importantly, it provides for the release of information to a relative of a relevant person in the scenario where that individual is deceased. The Act provides for the release of information to their child, and thereby ensures identity information relevant to their children is available to them. It also provides for the release of information to the next of kin of persons who died as a child in a mother and baby or county home institution. In order to provide for the release of this information, the Act requires the parent named on the birth certificate also be deceased. This amendment will enable Tusla or the AAI to undertake a trace for verification in situations where the person applying cannot provide supporting evidence to that effect. It will support the primary purpose of the Act, namely, to ensure the release of information in all cases where it is available.
Amendment No. 5 is a technical amendment to add references to these amendments to the Long Title of the Bill.
Amendment agreed to.
Bill reported with amendment.
We move to amendment No. 6. There are a number of errors in respect of this amendment but I understand that they do not materially affect it. There are some errors in the cross-references included in the numbered list circulated yesterday and dated 6 December. On amendment No. 6, within the proposed section 1(3) and 1(5), both cross-references to section 22 should read section 20. The reference to section 23 should read section 21. There is no need for a footnote on the amendment list in respect of section 20 because the reference is to the existing section 20. The associated footnote on the list in respect of section 21 should read "This is a reference to a section proposed to be inserted by amendment No. 35 of numbered list".
Amendment Nos. 6, 7 and 36 are related and may be discussed together.
I move amendment No. 6:
In page 3, between lines 15 and 16, to insert the following:
"PART 1
PRELIMINARY AND GENERAL
Short title, collection citation and commencement
1. (1) This Act may be cited as the Work Life Balance and Miscellaneous Provisions Act 2022.
(2) The Parental Leave Acts 1998 to 2019 and Part 2 may be cited together as the Parental Leave Acts 1998 to 2022.
(3) This Act, other than Parts 3 and 4 and sections 22 and 23, shall come into operation on such day or days as the Minister for Children, Equality, Disability, Integration and Youth may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
(4) Part 3 shall come into operation on such day or days as the Minister for Enterprise, Trade and Employment may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
(5) Part 4 and section 22 shall come into operation on such day or days as the Minister for Enterprise, Trade and Employment, in consultation with the Minister for Children, Equality, Disability, Integration and Youth, may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.".
These are technical amendments to provide for the separation of the Bill into Parts to allow for the incorporation of the right to request remote working. Part 1 will deal with commencement provisions. Part 2 will deal with the leave provisions of the Bill, including leave for medical care purposes and domestic violence leave, the right to request flexible working and other amendments to the parental leave Act. Part 3 will deal with the right to request remote working. Part 4 will deal with provisions relating to the code of practice and amendments to other pieces of legislation, including the miscellaneous provisions.
Amendment No. 6 inserts a new section 1 into the Bill to provide for the commencement provisions of the Parts of the Bill. Amendments Nos. 7 and 36 are consequential on this amendment.
Amendment agreed to.
I move amendment No. 7:
In page 3, line 17, to delete “In this Act” and substitute “In this Part”.
Amendment agreed to.
Amendment Nos. 8, 14, 24, 28 and 29 are related and may be discussed together.
I move amendment No. 8:
In page 3, line 22, to delete “ “ ‘adopting parent’ ” and substitute the following:
“ “ ‘Act of 2015’ means the Workplace Relations Act 2015;
‘adopting parent’ ”.
These are technical amendments arising from the amendments being introduced. They rectify some drafting issues identified in the Bill, as amended on Committee Stage.
Amendment agreed to.
Amendment Nos. 9, 12, 13, 16 to 19, inclusive, 21 and 23 are related and may be discussed together.
I move amendment No. 9:
In page 4, lines 2 and 3, to delete “section 13C(1)(a)” and substitute “section 13C(1)(b)(i)”.
The amendment amends section 6 to insert a new section 13C into the Parental Leave Act. Section 13C sets out the obligations on the employer when considering a request for flexible working. The new section 13C revises the wording of the existing section in the Bill and includes an additional requirement that any flexible working arrangement includes an expiration date. This is intended to provide a clear timeframe for the agreement and to ensure clarity for the employer and employee.
Amendment Nos. 9, 12, 16 to 19, inclusive, 21 and 23 are technical amendments consequential to the new numbering sequence in the revised section 13C.
Amendment agreed to.
Amendment Nos.10 and 31 are related and may be discussed together.
I move amendment No. 10:
In page 4, between lines 6 and 7, to insert the following:
“ ‘code of practice’ means any code of practice for the time being standing approved in accordance with Part 4 of the Work Life Balance and Miscellaneous Provisions Act 2022;”.
These amendments introduce provisions for the development of statutory code of practice that will govern flexible and remote working requests. Employers will be required to have regard to the code when considering both flexible working and remote working requests. The code of practice will be developed by the Workplace Relations Commission, WRC. It is intended the code of practice will provide practical guidance to employers and employees throughout this process and the code will be developed in consultation with unions and employers. I am aware a code-of-practice type approach was one that was heavily recommended in the pre-legislative process for the right to request remote work Bill. That process is now going to be used for both requests for remote working and requests for flexible working.
I have a question for the Minister on this. Is it intended that the code of practice be developed by his Department or by the Labour Employer Economic Forum, LEEF? Will his Department be attending the LEEF or how is that going to work?
The code of practice will be developed by the WRC. It is probably the best place to synthesise the views of employers and employees. It has a central understanding of the needs and legalities around the rights of workers.
Amendment agreed to.
Amendment No. 11 is out of order.
May I say a word on it?
Briefly.
I will be very brief. I have asked the Minister, probably six times at this stage, if he can please explain how this is going to operate in practice in the civil and public service. As he is well aware, workers in the higher education sector will be entitled to ten days of leave.
Ten days is the international norm. It is what has been negotiated by trade unions. Ten days is what Women's Aid says is necessary but it is also what is now available in the higher education sector. It is not that long since the unions were in the Labour Court, where they were told in no uncertain terms that there had to be standardisation in leave arrangements. This goes against that. I am struggling to understand why the entitlement has been halved. It was given by the Minister for Further and Higher Education, Research, Innovation and Science, Deputy Harris but it has now been halved as part of this Bill. I know the difference between a statutory entitlement and a non-statutory one so I ask the Minister not to explain that to me. Ten days is what Women's Aid and all the advocacy groups have asked for. Ten days is what is accepted as the norm.
With respect, I have answered this question every time the Deputy has asked it. What we are introducing is a statutory minimum provision that will apply to all workers across all sectors. Obviously, in many sectors in both the public and private sphere, employers provide more than a statutory minimum, whether that is with regard to leave, pay or a variety of issues. What we are providing for here is a statutory minimum across all sectors. It is the first time we will have this in this State. We will be one of the first countries in the EU to have this paid leave. That is important. The Deputy makes the comparison with international best practice but it is important to remember that very few countries have actually taken the step we are taking in providing paid domestic violence leave. Some countries have more but some have more unpaid domestic violence leave. I think the Deputy and I, and everyone in this House, are in agreement on the necessity of this being a paid provision. That is what we are introducing. Of course, we will also have a review after two years to look at how it is being implemented. One of the things that I have no doubt will be considered at that stage is whether there is a need to increase the number of days. This is an important first step in the provision of paid leave and is one that has been welcomed by unions, DSGBV groups and the NGOs that work in this sector.
The amendment is out of order anyway so we are going to move on.
That is okay.
Amendment No. 11 not moved.
I move amendment No. 12:
In page 12, line 5, to delete “section 13C(1)(a)” and substitute “section 13C(1)(b)(i)”.
Amendment agreed to.
I move amendment No. 13:
In page 12, to delete lines 21 to 41, and in page 13, to delete lines 1 to 42 and substitute the following:
“Obligation on employer to consider request under section 13B
13C. (1) An employer who receives a request for a flexible working arrangement submitted in accordance with section 13B(6) shall—
(a) consider that request, having regard to his or her needs and the employee’s needs, and
(b) as soon as reasonably practicable but, subject to subsection (2), not later than 4 weeks after receipt of the request—
(i) approve the request, which approval shall include an agreement prepared and signed by the employer and employee setting out—
(I) the details of the flexible working arrangement, and
(II) the date of the commencement and the date of expiration of the flexible working arrangement,
(ii) provide a notice in writing informing the employee that the request has been refused and of the reasons for the refusal, or
(iii) where subsection (2) applies, provide a notice in writing to the employee that the employer has extended the 4 week period under this subsection for a further period specified in the notice.
(2) Where an employer is having difficulty assessing the viability of the request for a flexible working arrangement, the employer may extend the 4 week period referred to in subsection (1) by a further period not exceeding 8 weeks.
(3) When the agreement referred to in subsection (1)(b)(i) is signed by the employer and the employee, the employer shall retain the agreement and provide a copy of the agreement to the employee who shall retain it.”.
Amendment agreed to.
I move amendment No. 14:
In page 13, line 43, to delete “proposed”.
Amendment agreed to.
Amendments Nos. 15 and 20 are related and may be discussed together.
I move amendment No. 15:
In page 13, line 44, to delete “13E.” and substitute “13D.”.
Amendment No. 20 inserts a new section, 13E, into the Parental Leave Act to provide for the termination of a flexible working arrangement by an employer where the arrangement would have a substantial adverse effect on the operation of their business. The employer must give four weeks' notice to the employee and set out the reasons the flexible working arrangement is being terminated. In providing such notice to the employee, the employer must have regard to the employee's needs as well as their own. An employee may also make representations to the employer upon receipt of such a notice. This provision has been included to provide a balance between the needs of the employee and the employer, which may change over time. The four-week period is intended to give the employee time to make other arrangements. The existing section 13D, which provided for the employer to postpone the commencement of a period of flexible working until the signing of an agreement, has been removed to avoid an employee being delayed in taking up flexible working arrangements beyond the period in which it is required. Section 13E, which provides for the variance of flexible working arrangements, will now become section 13D. Amendment No. 15 is a consequential technical change to the Bill as a result of amendment No. 20.
Amendment agreed to.
I move amendment No. 16:
In page 13, lines 44 and 45, to delete “section 13C(1)(a)” and substitute “section 13C(1)(b)(i)”.
Amendment agreed to.
I move amendment No. 17:
In page 14, line 9, to delete “section 13C(1)(a)” and substitute “section 13C(1)(b)(i)”.
Amendment agreed to.
I move amendment No. 18:
In page 14, lines 11 and 12, to delete “section 13C(1)(a)” and substitute “section 13C(1)(b)(i)”.
Amendment agreed to.
I move amendment No. 19:
In page 14, lines 21 and 22, to delete “section 13C(1)(a)” and substitute “section 13C(1)(b)(i)”.
Amendment agreed to.
I move amendment No. 20:
In page 14, between lines 35 and 36, to insert the following:
“Termination in certain circumstances of flexible working arrangement
13E. (1) If, after the date on which an agreement referred to in section 13C(1)(b)(i) is signed by the employer and the employee (whether or not the approved flexible working arrangement to which it relates has commenced), the employer is satisfied that the flexible working arrangement would have, or is having, a substantial adverse effect on the operation of his or her business, profession or occupation, by reason of—
(a) seasonal variations in the volume of the work concerned,
(b) the unavailability of a person to carry out the duties of the employee in the employment,
(c) the nature of the duties of the employee in the employment,
(d) the number of employees in the employment,
(e) the number of employees in the employment whose periods, or parts of whose periods, of an approved flexible working arrangement will fall within the period specified in the employee’s approved flexible working arrangement, or
(f) any other matters relevant to the substantial adverse effect on the operation of his or her business, profession or occupation,
the employer may, having regard to his or her needs, the employee’s needs and the requirements of the code of practice, by notice in writing terminate the arrangement and the notice shall specify the day (being a day not later than the date of the end of the period of the arrangement specified in the agreement referred to in section 13C(1)(b)(i), nor, subject to the foregoing requirement, earlier than 4 weeks after the date of the receipt by the employee concerned of the notice) on which the employee must return to work.
(2) Where an approved flexible working arrangement is terminated under subsection (1), the employee concerned shall return to the employee’s original working arrangement on the day specified in the notice under that subsection.
(3) A notice under subsection (1) shall contain a statement in summary form of the grounds for terminating the flexible working arrangement concerned.
(4) Where an employer proposes to give a notice under subsection (1) to an employee of his or hers, the employer shall, before giving the notice, give notice in writing of the proposal to the employee and the notice shall contain a statement in summary form of the grounds for terminating the flexible working arrangement concerned and a statement that the employee may within 7 days of the receipt of the notice make representation to the employer in relation to the proposal, and any such representations made by an employee to an employer within the period aforesaid shall be considered by the employer before he or she decides whether to give a notice under subsection (1) to the employee.
(5) A person shall retain a notice under this section given to him or her and a copy of a notice under this section given by him or her.
(6) Where a flexible working arrangement is terminated under subsection (1), the agreement referred to in section 13C(1)(b)(i) shall be deemed to be revoked accordingly.”.
Amendment agreed to.
I move amendment No. 21:
In page 14, line 37, to delete “section 13C(1)(a)” and substitute “section 13C(1)(b)(i)”.
Amendment agreed to.
I move amendment No. 22:
In page 15, to delete lines 4 to 12 and substitute the following:
“(3) An employer who receives a request referred to in subsection (1) shall consider that request, having regard to his or her needs and the employee’s needs and, as soon as reasonably practicable but not later than 4 weeks after receipt of the request, shall provide a notice in writing informing the employee that—
(a) the request has been approved, or
(b) the request has been refused and of the reasons for the refusal.
(4) If the employer agrees to the early return to the original working arrangements but refuses to agree to the proposed date of return set out in the notice referred to in subsection (1), the notice under subsection (3) by the employer shall propose an alternative date for the return.”.
This amendment provides for a revised section 13G to be inserted into the Parental Leave Act. Section 13G sets out the procedures for when an employee is seeking to return early to their original working pattern. The new section 13G allows for an employer to propose an alternative date of return to the employee. This is to allow an employer additional time to put arrangements in place for an employee to return to their original working pattern.
Amendment agreed to.
I move amendment No. 23:
In page 15, line 28, to delete “section 13C(1)(a)” and substitute “section 13C(1)(b)(i)”.
Amendment agreed to.
I move amendment No. 24:
In page 15, line 30, to delete “notice).” and substitute “notice) on which the employee must return to work.”.
Amendment agreed to.
I move amendment No. 25:
In page 16, line 2, to delete “her.”.” and substitute the following:
“her.
Review of Part
13H. The Minister shall, not earlier than one year and not later than 2 years after the commencement of this Part, after consultation with the Minister for Enterprise, Trade and Employment, the Workplace Relations Commission, persons whom he or she considers to be representative of employers generally and persons whom he or she considers to be representative of employees generally, conduct a review of the operation of this Part, having regard to Directive (EU) 2019/1158, and shall prepare a report in writing of the findings of the review and shall cause copies of the report to be laid before each House of the Oireachtas.”.”.
This amendment inserts a new section 13H into the Parental Leave Act, which provides for a review of this Part of the Bill no later than two years after the commencement of the relevant provisions. This review will allow for an opportunity to review the operation of the new entitlements under this Part. It is also intended to consider whether the right to request flexible working under this Part be extended to all employees.
Amendment agreed to.
I move amendment No. 26:
In page 18, lines 3 and 4, to delete “section 21A(1),” and substitute “section 21A,”.
This is a technical amendment consequential to the insertion of a revised section 21A into the Parental Leave Act by amendment No. 27. The revision of this section is intended to extend recourse to the Workplace Relations Commission for an employee where a dispute arises with regard to the provisions under sections 13C, 13D, 13E, 13F or 13G. In the current draft of the Bill, this entitlement only extends to a dispute under the provisions of the new section 13C.
I note that four weeks are allowed for a worker to appeal in instances where this is being denied them. Flexibility is being given to an employer to make arrangements for a worker coming back so there is more time allowed there. There is mention in this of the WRC and the Labour Court. Is it the intention that the move to which the worker is objecting will take place, obviously under protest, and then the matter will be referred to the Labour Court? I am conscious that the time it takes to get from the decision to refer something to actually sitting in the Labour Court could be up to six or eight months. I am just wondering what is intended to happen in the meantime. Would people have to move under protest? How is that going to work?
I think that will probably have to be the practical implication of it, as the Deputy set out. Obviously we would like things to be heard as quickly as possible in the WRC but there are delays there so I think that would be the practical implication.
I just want to formally record that I think it is a bit unfair that flexibility is being given on the employer's end and that they will have time that a worker might not get back. They are getting an extension to that four weeks but the same is not being offered to workers. We all know it is going to take months and not weeks to get to the WRC.
Amendment agreed to.
I move amendment No. 27:
In page 18, to delete lines 6 to 29 and substitute the following:
“Decision under section 41 or 44 of Act of 2015 in relation to dispute under sections 13C, 13D, 13E, 13F or 13G
12. The Principal Act is amended by the insertion of the following section after section 21:
“21A.(1) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision, in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 13C(1) may—
(a) direct that the employer comply with paragraph (a) of section 13C(1),
(b) direct that the employer comply with any of the requirements of paragraph (b) of section 13C(1) as if the reference in that subsection to the date that is 4 weeks after the receipt of the employee’s request under section 13B was a reference to such date as may be specified in the direction,
(c) award compensation in favour of the employee concerned to be paid by the employer concerned, or
(d) specify both a direction referred to in paragraph (a) or (b), or both, and an award referred to in paragraph (c).
(2) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision, in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under sections 13D or 13E, may award compensation in favour of the employee concerned to be paid by the employer concerned.
(3) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision, in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 13F, may—
(a) direct that the employer comply with any of the requirements of section 13F(3) as if the reference in that subsection to the date that is 4 weeks after the receipt of the employee’s request under section 13F(1) was a reference to such date as may be specified in the direction,
(b) award compensation in favour of the employee concerned to be paid by the employer concerned, or
(c) specify both a direction referred to in paragraph (a) and an award referred to in paragraph (b).
(4) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision, in relation to a dispute between an employee and his or her employer relating to the entitlements of the employee under section 13G may award compensation in favour of the employee concerned to be paid by the employer concerned.
(5) An award of compensation referred to in subsections (1)(c), (2), (3) or (4) shall be of such amount as the adjudication officer or the Labour Court, as the case may be, considers just and equitable having regard to all the circumstances but shall not exceed 20 weeks’ remuneration in respect of the employee’s employment calculated in the manner as may be prescribed.
(6) In making a decision referred to in subsection (1), (2) or (3), an adjudication officer or the Labour Court, as the case may be, shall not assess the merits of—
(a) the decision of the employer reached following his or her consideration of the employee’s request under section 13C(1)(a),
(b) the refusal by the employer under section 13C(1)(b)(ii) or the reasons for such refusal given under that provision,
(c) the decision of the employer to terminate, under section 13E, a flexible working arrangement or the grounds given by the employer under that section for such termination,
(d) the refusal by the employer under section 13F(3)(b) or the reasons for such refusal given under that provision, or
(e) the refusal by the employer under section 13F(4) or the alternative date proposed under that provision.
(7) In this section, ‘remuneration’ includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”.”.
Amendment No. 27 amends section 12 of the Bill to insert a revised section 21A into the Parental Leave Act. The revision of this section is intended to extend recourse to the Workplace Relations Commission for an employee where a dispute arises with regard to the current provisions under sections 13C, 13D, 13E, 13F or 13G. In the current draft of the Bill this entitlement only extends to a dispute under the provisions of the new section 13C.
Amendment agreed to.
I move amendment No. 28:
In page 18, between lines 29 and 30, to insert the following:
“Amendment of section 22A of Principal Act
13. Section 22A of the Principal Act is amended in subsection (1), by the insertion of “other than Part IIA” after “this Act”.”.
Amendment agreed to.
I move amendment No. 29:
In page 19, line 6, to delete “3 years.” and substitute “3 years,”.
Amendment agreed to.
Bill recommitted in respect of amendment No. 30.
I move amendment No. 30:
In page 19, between lines 9 and 10, to insert the following:
“PART 3
REQUESTS FOR REMOTE WORKING ARRANGEMENTS
Interpretation ( Part 3 )
14. (1) In this Part—
“Act of 1998” means the Parental Leave Act 1998;
“Act of 2015” means the Workplace Relations Act 2015;
“adjudication officer” means a person appointed under section 40 of the Act of 2015;
“approved remote working arrangement” means a remote working arrangement, the
request for which has been approved under section 21(1)(a);
“code of practice” means, in relation to a provision of this Part, any code of practice
for the time being standing approved in accordance with Part 4;
“Commission” means the Workplace Relations Commission;
“continuous employment” includes employment completed by an employee under 2 or
more continuous fixed-term contracts with the same employer;
“contract of employment” means, subject to subsection (2)—
(a) a contract of service or apprenticeship, or
(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency (within the meaning of the Employment Agency Act 1971), and is acting in the course of that business, to do or perform personally any work or service for another person (whether or not that other person is a party to the contract);
“employee” means a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and includes a part-time employee and a fixed-term employee and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Part, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces or a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the head (within the meaning of the Freedom of Information Act 2014), of the public body (within the meaning aforesaid) in which he or she is employed and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), or of a harbour authority, the
Health Service Executive or a member of staff of an education and training board shall be deemed to be an employee employed by the authority, Executive or board, as the case may be;
“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer and includes, where appropriate, an associated employer of the employer;
“fixed-term employee” has the same meaning as it has in the Protection of Employees (Fixed-Term Work) Act 2003;
“Minister” means the Minister for Enterprise, Trade and Employment;
“part-time employee” has the same meaning as it has in the Protection of Employees (Part-Time Work) Act 2001;
“request for a remote working arrangement” means a request referred to in section 20(1);
“remote working arrangement” means an arrangement whereby some or all of the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment is provided at a location other than at the employer’s place of business without change to the employee’s ordinary working hours or duties;
(2) For the purposes of this Part, 2 employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control and “associated employer” shall be construed accordingly.
Voidance or modification of certain provisions in agreements
15. (1) A provision in any agreement shall be void in so far as it purports to exclude or limit the application of any provision of this Part or is inconsistent with any provision of this Part.
(2) A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by this Part shall be deemed to be so modified as to be not less favourable.
(3) Nothing in this Part shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision in this Part.
(4) References in this section to an agreement are to any agreement, whether a contract of employment or not and whether made before or after the coming into operation of this section.
Regulations and orders
16. (1) The Minister may by regulations provide for any matter referred to in this Part or Part 4 as prescribed or to be prescribed for the purposes of the regulations.
(2) Before making a regulation under this Part, the Minister shall consult with persons whom he or she considers to be representative of employers generally and persons whom he or she considers to be representative of employees generally in relation to the regulation.
(3) Without prejudice to any provision of this Act, a regulation under this Part may contain such consequential, supplementary and ancillary provisions as appear to the Minister to be necessary or expedient.
(4) Every regulation made under this Part shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
Expenses
17. The expenses incurred by the Minister or the Minister for Children, Equality, Disability, Integration and Youth in the administration of this Part and Part 4 shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.
Right to request a remote working arrangement
18. (1) An employee may, in accordance with this Part, request approval from his or her employer for a remote working arrangement.
(2) An employee’s approved remote working arrangement shall not commence before a time when the employee concerned has completed 6 months continuous employment with the employer concerned.
(3) A request for a remote working arrangement referred to in subsection (1) shall—
(a) be in writing and signed by the employee,
(b) specify the details of the remote working arrangement requested and the proposed date of commencement and, where applicable, expiration of the remote working arrangement,
(c) specify, having regard to the code of practice—
(i) the reasons why he or she is requesting approval of the remote working arrangement (in this Part referred to as “the employee’s needs”),
(ii) details of the proposed remote working location, and
(iii) information as may be specified in the code of practice on the suitability of the proposed remote working location,
and
(d) be submitted to his or her employer as soon as reasonably practicable but not later than 8 weeks before the proposed commencement of the remote working arrangement.
(4) An employee who has submitted a request in accordance with subsection (3) to his or her employer shall, if the employer so requests, furnish to the employer such further information as the employer may reasonably require in relation to the request.
(5) Before the date on which an agreement referred to in section 21(1)(b)(i) is signed by the employer and the employee, the employee may, by notice in writing signed by him or her and given to the employer, withdraw a request submitted in accordance with subsection (3).
(6) For the purposes of this section, where an employee ceases to be the employee of an employer and, not more than 26 weeks after the date of cesser, the employee again becomes the employee of the employer, the period of service of that employee with that employer before the date of cesser shall be deemed to be continuous with the period of service of that employee with that employer after again becoming such employee.
Obligation on employer to consider request under section 20
19. (1) An employer who receives a request for a remote working arrangement submitted in accordance with section 20(3) shall—
(a) consider that request, having regard to—
(i) his or her needs,
(ii) the employee’s needs, and
(iii) the requirements of the code of practice,
and
(b) as soon as reasonably practicable but, subject to subsection (2), not later than 4 weeks after receipt of the request—
(i) approve the request, which approval shall include an agreement prepared and signed by the employer and employee setting out—
(I) the details of the remote working arrangement, and
(II) the date of the commencement and the expiration, if any, of the remote working arrangement,
(ii) refuse a request, which refusal shall include a notice in writing informing of the reasons for the refusal, or
(iii) where subsection (2) applies, provide a notice in writing to the employee that the employer has extended the 4 week period under this subsection for a further period specified in the notice.
(2) Where an employer is having difficulty assessing the viability of the request for a remote working arrangement, the employer may extend the 4 week period referred to in subsection (1) by a further period not exceeding 8 weeks.
(3) When the agreement referred to in subsection (1)(b)(i) is signed by the employer and the employee, the employer shall retain the agreement and provide a copy of the agreement to the employee who shall retain it.
Termination in certain circumstances of remote working arrangement
20. (1) If, after the date on which an agreement referred to in section 21(1)(b)(i) is signed by the employer and the employee (whether or not the approved remote working arrangement to which it relates has commenced), the employer is satisfied that the remote working arrangement would have, or is having, a substantial adverse effect on the operation of his or her business, profession or occupation, by reason of—
(a) seasonal variations in the volume of the work concerned,
(b) the unavailability of a person to carry out the duties of the employee in the employer’s place of business,
(c) the nature of the duties of the employee in the employment, or
(d) any other matters relevant to the substantial adverse effect on the operation of his or her business, profession or occupation,
the employer may, having regard to his or her needs, the employee’s needs and the requirements of the code of practice, by notice in writing terminate the arrangement and the notice shall specify the day (being a day not later than the date of the end of the period of the arrangement specified in the agreement referred to in section 21(1) (b)(i), if any, nor, subject to the foregoing requirement, earlier than 4 weeks after the date of the receipt by the employee concerned of the notice) on which the employee must return to work.
(2) Where an approved remote working arrangement is terminated under subsection (1), the employee concern shall return to the employee’s original working arrangement on the day specified in the notice under that subsection.
(3) A notice under subsection (1) shall contain a statement in summary form of the grounds for terminating the remote working arrangement concerned.
(4) Where an employer proposes to give a notice under subsection (1) to an employee of his or hers, the employer shall, before giving the notice, give notice in writing of the proposal to the employee and the notice shall contain a statement in summary form of the grounds for terminating the remote working arrangement concerned and a statement that the employee may, within 7 days of the receipt of the notice, make representation to the employer in relation to the proposal, and any such representations made by an employee to an employer within the period aforesaid shall be considered by the employer before he or she decides whether to give a notice under subsection (1) to the employee.
(5) A person shall each retain a notice under this section given to him or her and a copy of a notice under this section given by him or her.
(6) Where a remote working arrangement is terminated under subsection (1), the agreement referred to in section 21(1)(b)(i) shall be deemed to be revoked accordingly.
Changes to remote working arrangements
21. If, after the date on which an agreement referred to in section 21(1)(b)(i) is signed by the employer and the employee (whether or not the approved remote working arrangement to which it relates has commenced), the employer and the employee so agree, in writing—
(a) the remote working arrangement may be postponed to such time as may be agreed to,
(b) the period of the remote working arrangement, if any, may be curtailed in such manner and to such extent as may be agreed to, or
(c) the form of the remote working arrangement may be varied in such manner as may be agreed to,
and in such a case the agreement referred to in section 21(1)(b)(i) shall be deemed to be amended accordingly.
Return to previous working arrangement
22. (1) After the date on which an agreement referred to in section 21(1)(b)(i) is signed and prior to the expiration of the employee’s approved remote working arrangement, if any, the employee may by notice in writing signed by him or her and given to the employer, request to return to the original working arrangements that he or she held immediately before the approval of the remote working arrangement.
(2) The notice referred to in subsection (1) shall set out the reasons for the return to the original working arrangements and the proposed date for the return.
(3) An employer who receives a request referred to in subsection (1) shall—
(a) consider that request, having regard to his or her needs, the employee’s needs and the code of practice, and
(b) as soon as reasonably practicable but not later than 4 weeks after receipt of the request, by notice in writing, respond to the employee to inform him or her that—
(i) the request has been approved, or
(ii) the request has been refused and the reasons for the refusal.
(4) If the employer agrees to the early return to the original working arrangements but refuses to agree to the proposed date of return set out in the notice referred to in subsection (1), the response under subsection (3)(b) from the employer shall propose an alternative date for the return.
(5) On the expiration of the employee’s approved remote working arrangement, if any, the employee concerned shall be entitled to return to the original working arrangement that he or she held immediately before the approval of the remote working arrangement.
Abuse of remote working arrangement
23. (1) An approved remote working arrangement is subject to the condition that the employee continues to discharge all of their duties of employment in accordance with the agreement referred to in section 21(1)(b)(i).
(2) Where an employer has reasonable grounds for believing that an employee who is on an approved remote working arrangement is not discharging all of their duties of employment in accordance with the agreement referred to in section 21(1)(b)(i), the employer may, by notice in writing given to the employee, terminate the approved remote working arrangement and the notice shall contain a statement in summary form of the grounds for terminating the arrangement and shall specify the day (being a day not later than the date of the end of the period of the arrangement, if any, specified in the agreement referred to in section 21(1)(b)(i), nor, subject to the foregoing requirement, earlier than 7 days after the date of the receipt by the employee concerned of the notice) on which the employee must return to work.
(3) Where an approved remote working arrangement is terminated under subsection (2), the employee concerned shall return to the employee’s original working arrangement on the day specified in the notice under that subsection.
(4) Where an employer proposes to give a notice under subsection (2) to an employee, the employer shall, before giving the notice, give notice in writing of the proposal to the employee and the notice shall contain a statement in summary form of the grounds for terminating the remote working arrangement concerned and a statement that the employee may within 7 days of the receipt of the notice make representation to the employer in relation to the proposal, and any such representations made by an employee to an employer within the period aforesaid shall be considered by the employer before he or she decides whether to give a notice under subsection (2) to the employee.
(5) A person shall retain a notice under this section given to him or her and a copy of a notice under this section given by him or her.
Protection of employees from penalisation
24. (1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to make a request referred to in section 20(1) or 24(1).
(2) In this section, “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—
(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and
(e) coercion or intimidation.
(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of the penalisation both under this Part and under those Acts.
Decision under section 41 or 44 of Act of 2015
25. (1) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 21(1) may—
(a) direct that the employer comply with paragraph (a) of section 21(1),
(b) direct that the employer comply with any of the requirements of paragraph (b) of section 21(1) as if the reference in that subsection to the date that is 4 weeks after the receipt of the employee’s request under section 20 was a reference to such date as may be specified in the direction,
(c) award compensation in favour of the employee concerned to be paid by the employer concerned, or
(d) specify both a direction referred to in paragraph (a) or (b), or both, and an award referred to in paragraph (c).
(2) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 22 may award compensation in favour of the employee concerned to be paid by the employer concerned.
(3) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 24(3) may—
(a) direct that the employer comply with paragraph (a) of section 24(3),
(b) direct that the employer comply with any of the requirements of paragraph (b) of
section 24(3) as if the reference in that subsection to the date that is 4 weeks after
the receipt of the employee’s request under section 24(1) was a reference to such
date as may be specified in the direction,
(c) award compensation in favour of the employee concerned to be paid by the
employer concerned, or
(d) specify both a direction referred to in paragraph (a) or (b), or both, and an award referred to in paragraph (c).
(4) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision in relation to a dispute between an employee and his or her employer relating to the entitlements of the employee under this Part (other than sections 21, 22 and 24) may award compensation in favour of the employee concerned
to be paid by the employer concerned.
(5) An award of compensation referred to in subsections (1)(c), (2), (3)(c) or (4) shall be of such amount as the adjudication officer or the Labour Court, as the case may be, considers just and equitable having regard to all the circumstances but shall not exceed 4 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.
(6) In making a decision referred to in subsection (1), (2) or (3), an adjudication officer or the Labour Court, as the case may be, shall not assess the merits of—
(a) the decision of the employer reached following his or her consideration under section 21(1)(a) of the employee’s request,
(b) the refusal by the employer under section 21(1)(b)(ii) or the reasons for such refusal given under that provision,
(c) the decision of the employer to terminate, under section 22, a remote working arrangement or the grounds given by the employer under that section for such termination,
(d) the refusal by the employer under section 24(3)(b)(ii) or the reasons for such refusal given under that provision, or
(e) the refusal by the employer under section 24(4) or the date proposed under that provision.
(7) In this section, “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.
Records
26. (1) An employer shall make a record of approved remote working arrangements taken by each of his or her employees showing the period of employment of each employee and the dates and times upon which each employee was on an approved remote working arrangement.
(2) A record under this section shall be retained by the employer concerned for a period of 3 years.
(3) Notices, or copies of notices, required by this Part to be retained by a person shall be retained by the person for a period of one year.
(4) An employer who contravenes subsection (1) or subsection (2), shall be guilty of an offence and shall be liable on summary conviction to a class C fine.
(5) Proceedings for an offence under this section may be brought and prosecuted by the Minister.
Review of Part
27. The Minister shall, not earlier than one year and not later than 2 years after the commencement of this section, after consultation with the Minister for Children, Equality, Disability, Integration and Youth, the Commission, persons whom he or she considers to be representative of employers generally and persons whom he or she considers to be representative of employees generally, conduct a review of the operation of this Part and shall prepare a report in writing of the findings of the review and shall cause copies of the report to be laid before each House of the Oireachtas.”.
As I indicated on Committee Stage, amendment No. 30 is intended to introduce a right to request remote working for all employees. The right to request flexible working remains limited to parents and carers. This means that all requests for remote and flexible working will considered under one piece of integrated legislation simplifying the process for employers and employees, and reducing the administrative burden on employers. The application and decision process for both have also been harmonised insofar as possible. These amendments set out a framework for making a remote working request and employers are obliged to consider and respond to that request. The general scheme of the Right to Request Remote Work Bill provided 13 grounds for refusal as well as a general right to refuse on business grounds. Under these amendments, the enumerated grounds for refusal have been removed entirely and replaced with a requirement for employers to have regard to their needs and employee needs when considering requests for remote working. Employers will also be required to have regard to the code of practice which is to be established on a statutory footing and will provide practical guidance on how remote and flexible working requests should be treated.
A complaint to the Workplace Relations Commission, WRC, following a refusal is possible where an employer has not complied with the requirements of the Bill in considering the code of practice. This represents an enhanced right to complain when compared with the original Right to Request Remote Work Bill. The remote working Bill also included a statutory requirement for an employer to have a remote working policy. This requirement will not be included in the integrated Bill. Guidance to employers on remote working policy will instead be provided for in the code of practice.
Under the stand-alone Right to Request Remote Work Bill, it was a criminal offence not to have a remote working policy, this has not been included in these amendments. The service requirement in the stand-alone Bill before a request could be made was six months. Under the integrated Bill, it will be six months before remote working can commence. In effect, employees may commence remote working up to 12 weeks earlier than provided for under the original Bill.
These amendments also introduce new provisions originating from the Work Life Balance and Miscellaneous Provisions Bill 2022 to remote working requests that were not a feature of the original Right to Request Remote Work Bill. The most substantial of these are anti-abuse provisions which permits an employer to end the flexible working arrangement where the employee is not fulfilling their agreed duties. The amendments also include a provision which permits an employer to terminate the flexible or remote working arrangements where it would have, or is having, a substantial adverse effect on the operation of his or her business.
That last sentence on whether a worker is not doing their full duties worried me a bit. If a worker is not carrying out their full duties, believe me, there are plenty of polices, procedures and everything else that can ensure they do. I do not see the need to put that into this legislation, to be frank.
The reason we are here discussing this is that despite having nearly two and a half years to deliver what he said he was going to deliver, the Tánaiste, Deputy Varadkar, failed to do so. Now we have a situation where the Government is trying to circumvent its own failure by allowing the Tánaiste to effectively affix or annex his remote working legislation onto this legislation. The result is that complex legislation which should be delivered by way of a stand-alone Bill is being introduced by way of an amendment bypassing key legislative Stages in the Oireachtas. By introducing the legislation as an amendment on the Final Stage of the Work Life Balance and Miscellaneous Provisions Bill 2022, the Government is bypassing three key Stages that a stand-alone Bill would have gone through in the Dáil, namely, Second, Committee and Report Stages. The Government and the Tánaiste are attempting to pull a fast one in relation to remote working. They are denying elected representatives an opportunity to query or raise concerns regarding these complex legislative changes around remote working. There are a number of questions regarding the recently published amendments which need to be answered and I will put them to the Minister now.
Section 18(2) states that a worker approved for remote working arrangements will not commence before a time when the employee concerned has completed six months' work. I do not know where the six months came from. As I said to the Minister before, he should at least be trying to do as well as, if not better than, the Tories over the water. We know they have said it is a no-brainer that employees can start work as remote working. Plenty of people start remote working from day one. This is the new form of working; they start from day one and work remotely.
The following question arises in terms of the six months. Does it interfere with the ability of a worker and their employer to agree remote working, for example, in the event where they agree remote working? It is a growing thing that many people will start work as a remote worker and may never have an office-based job but where they do have an agreed remote working arrangement, if it is agreed before the six months has passed, are they entitled to the protections under this Act? Are they entitled to the protection of the WRC and the other machinery of the State and if so, how will that work?
Section 18(3)(c)(i) provides that a worker must state the reason they are seeking remote working arrangements and it is "referred to as the employee's needs". This is massively disrespectful, that is, the idea that you would have to go in and talk about your own personal circumstances. I mean you have to be able to demonstrate that you can work remotely and that is fine. You have to do your work and, as I said to the Minister, there are plenty of policies and procedures there to ensure a worker turns up and does their work. There are also plenty of punishments, by the way, and the Minister does not need to add anything extra. I think this is a bit paternalistic.
Take Betty, for example, who has three kids and looks after her elderly mother. She can go to her boss and tell them she has three kids at home, an elderly ma and all of that kind of stuff going on. She could tell them that life is hard and, therefore, she would like to request some of this remote working. Then you could have Peter who may be a single man and who cannot demonstrate a need, or does not want to actually go in and discuss that aspect of his personal life with his boss. I genuinely fail to see why we are coming at it from this perspective. It is 20-odd years since the first time I had a negotiation with an employer on remote working, teleworking or e-working as we used to call it. That is a long time ago and at that time it was thought of as a bit of a treat or a grace in favour arrangement where you could have a bit of the flexible working and it was reserved for certain staff members. This should represent something new, different and better.
With regard to section 18(3)(c)(ii) and the need for a worker to provide "details of the proposed remote working location", I fail to see why this is there as well. As long as they are in the State, it really is not anybody's business as long as they are doing their work. Again, all of this is predicated on the worker being able to deliver the work they are contractually obliged to do. If they can do that, I do not see what business it is of the employer where it is that they are working.
Regarding section 20, I ask the Minister what constitutes a "substantial adverse effect" on the operations of a business. I ask this because subsection (d) states an employee's flexible working arrangement can be terminated for a substantial adverse effect which reads to me like it could be terminated for any reason.
On section 23(2), I ask what constitutes "reasonable grounds" for believing an employee is abusing remote working. I gave the example earlier of a person working at home or working remotely in a hub or wherever. If they are spotted by HR on a half-day in SuperValu picking up some shopping, are they going to be subject to some kind of disciplinary procedures? If they are hitting all their key performance indicators, KPIs, and their targets and doing their work, what checks and balances are going to be put in place here? Section 25(5) provides for 20 weeks' remuneration as compensation. This could be pushed out to 26 weeks to make it six months' pay.
On section 25(6), I ask why there are so many exclusions as to what an adjudication officer or Labour Court can consider in terms of the conduct and the decisions of the employer to reject or terminate an employee's flexible working arrangement. I say that in light of the discussions that were had. The reason the Tánaiste's appallingly anti-worker legislation had to be effectively binned was that there were multiple lists of reasons an employer could refuse.
One of the mistakes we make here in this Chamber is that sometimes we take far too long with legislation and other times we rush it. There are some really good positives in the Work Life Balance and Miscellaneous Provisions Bill 2022 and it is welcome. As I mentioned, there are many groups such as Family Carer's Ireland which are really happy to see this come forward.
This particular section being inserted into it is unfair to the Bill, for want of better words, but also as there are many queries raised by Deputy O'Reilly, we should have the normal time to tease them out through pre-legislative scrutiny, Committee Stage and all other Stages. It needs to be separate legislation. That is not what is going to happen now obviously but I want to make the point that I see where Deputy O'Reilly is coming from in this regard and how we should have the opportunity to interrogate this separately. It takes away from all the good things and the long-overdue aspects in the Work Life Balance and Miscellaneous Provisions Bill around leave for parents with sick children etc. for which many people have been waiting a long time. There are genuine questions in regard to that. I do not know whether we will get sufficient answers to them this evening. Is this part of it going to be reviewed? Will it be reviewed separately? There was mention earlier of a two-year review. Will that be built into it? Has the Minister comments on that?
It is not lost on us that the Work Life Balance and Miscellaneous Provisions Bill is being debated at 9.40 p.m. on a Wednesday night. It certainly says everything about not having a good work-life balance. I pick up on the point that Deputy Funchion made. There is good reason to have five Stages to legislation. It means it has been thought out and teased out, that the principle of it has been talked about, that amendments have been tabled and considered on Committee Stage and reported back to the Dáil. There is then a further debate on it and if something needs to be amended on Report Stage it is possible to do it. There is a purpose in doing that, which is to ensure we have good, solid, robust legislation that is future-proofed. A massive opportunity is being missed here. Essentially what has happened is the Tánaiste’s legislation has been binned. It was awful legislation. I would have looked for it to be withdrawn and recrafted anyway. However, we are going to miss an opportunity in doing that because there was the possibility of doing something very constructive.
I do not understand what the mindset is that would consider this six-month rule, that it does not apply until six months. That is almost a negative. That should be something that is embraced in legislation that is adopting a different kind of culture of remote working as an entitlement and a benefit. As I said when I spoke earlier, one of those benefits is very much a climate benefit. It is a regional balance benefit. That is the huge lost opportunity.
Will the Minister address the issue of what was the thinking in regard to the six-months provision? For the life of me I cannot think of anything other than a paternalistic approach, as Deputy O’Reilly said, that it is assumed that people must be kept an eye on for six months to see if they are working out and then maybe let them work remotely. It is that supervisory, old-fashioned way of doing things. When you look at the analysis done during Covid-19 on people who worked remotely in actual fact it was the reverse of what you might think. Productivity went up, not down. People worked longer than the set hours. This notion that people must be stood over to make sure they are good employees is not the kind of culture we should be trying to adopt in a good work-life balance or in terms of crafting legislation creating an environment for working remotely.
I have been at all the committee meetings and this Bill is important as are the Report Stage amendments. I spoke about remote working. It is part of our future so we need to have the balance right. I also asked about the two-year review. It is important to clarify that because while I raised the issue on Committee Stage that it is vitally important that business owners are brought along on this journey with legislation, it is hugely important that an employee who needs the time can access that time but that the business owner is not also losing out because that would not be good for the working relationship. I welcome the fact there is an obligation on employers to facilitate this. Work-life balance brings the most benefits when the options are available which suit the organisation's needs and those of the employees. I say this because while this work-life balance is really important we are here at 10 p.m. on a Wednesday night. I know our time has been extended. An extra few hours were put on today but we need to lead by example. It is important that we get this legislation through but it is also important that we ourselves are examples of how we go forward.
We have had many committee meetings on this. I welcome that. I want to ask the Minister about the two-year review. What exactly will happen within the two years? What is the plan to go forward? Will the Minister come back to us with that information?
I thank the Deputies for their contributions. Deputies spoke about the process both in terms of the work we have done through committee on the original work-life balance directive and of course the work that was done through the Right to Request Remote Work Bill. I am aware that a very detailed pre-legislative scrutiny, PLS, process was undertaken and the detailed PLS report was published. In regard to the amendments being brought forward today, we are implementing the recommendations of the PLS report. I struggle to think how often I have seen such a clear implementation of a PLS report in legislation. In recommendation 5 the committee recommended that codes of good practice quickly evolve so that once in place refusals must be grounded in a stated policy from employers founded on these codes. Recommendation 6 states that the committee proposes the principles underpinning a reasonable code of practice should now be set out in law and allow the WRC to design how this should be applied in different workplace situations. We are doing both of those with this legislation. The committee advised to accompany the primary legislation with a WRC code of practice to elaborate on and encourage reasonableness on the part of employer and employee. We are doing that and we are using the WRC. In recommendation 8 the committee proposed legislation should mandate the WRC to draw up a code of practice in the first instance upon which the policies of employers can be based. We are doing that. Finally, the committee proposed that the legislation should align with the general scheme of the Work Life Balance Miscellaneous Provisions Bill. We are doing that. We are implementing the recommendations brought forward from PLS on remote working. Deputy Funchion and I have had discussions on how much PLS has gone into legislation. I think a great deal of the PLS has gone into this legislation. It is worth setting that out at the start.
There will be a two-year review of this legislation. That is important. We are doing a number of new and innovative things here. The area of remote working is an innovative one. As Deputy O’Reilly said some companies now offer it from day one and that is a positive thing. We are putting in place a statutory right to request it. There will be a review after two years. As we know that review will also look at potentially expanding the right of flexible working, which is the right for varied hours or a shorter working day. As implementing the EU directive only applies to parents and carers, it will examine expanding that further as well. That could be a potential further advancement of workers' rights generally and of course it will look at the provisions of the five days. It will look at the update of DSGBV leave and see what changes need to be made there. I wanted to make those general points.
In regard to the six months within which the right to request gets its statutory basis, that allows an assessment in terms of the needs of the work of the employer and of the employee. It may not automatically be available in every workplace from day one for a full understanding of whether a request for remote working meets the needs of the employer and the employee.
It is also important to remember that the right can be granted after six months but that does not stop an employee applying for it earlier. As we know, there is an application process of a number of weeks in which their application is judged. That can happen before the six-month period but the actual ability to take up the right kicks in after that six-month period.
As I said, remote working is about balancing the employer's rights and the rights of the employee. On that point, it is worth drawing a comparison. Deputy O'Reilly referred to the UK legislation and she argues part of the approach adopted there is better than the approach being adopted here. It is worth contrasting the UK proposals with our own. Our own proposals contain no statutory grounds for refusal, and that was in the original proposal on remote working, with the 13 reasons. Now, we have no statutory grounds for refusal, unlike the UK legislation, which has eight statutory grounds of refusal. The Irish legislation contains an explicit legal obligation for employers to consider the employee's needs. That is part of the balancing test under the Irish law but that is not the case in the UK legislation. Also, the Irish law contains no limits on the number of requests that can be made whereas, under the UK legislation, that is limited to one request per year. In terms of the overall strength of our legislation, it stacks up well vis-à-vis what is being proposed in the United Kingdom.
I will deal with some of the other specific points. On the definitions Deputy O'Reilly spoke about, “substantial adverse effect” and “reasonable grounds”, both of those will be fleshed out within the code of conduct which we discussed and which will be brought forward by the Workplace Relations Commission. In terms of the ask on the location, some remote working requests will probably be granted in terms of also having reasonable access to the office if the employee is needed to attend in the office or in the workplace at some point. In that context, it is reasonable for the employer to understand where the employee is based and will be proposing to undertake the work.
Regarding the exclusions, this has to be understood in the context of what this is. This is a right to request. It is not a statutory right to remote working, and we recognise that. It is a right to request and, as we know, not all occupations, not all industries and not all particular roles within an enterprise will be suitable or appropriate for remote working. As such, there has to be some element of an exclusion provision. Again, that is something that can be looked at in that two-year review we spoke about earlier.
It is important to point out, lest anyone think pre-legislative scrutiny, PLS, was done on this, it was not. The PLS was conducted on an entirely different piece of legislation, one which, as we have already discussed, was inherently flawed, exactly as we might expect from this Government.
I asked the Minister a specific question in regard to the protections that apply. I take it from his answer that if someone agrees a remote working arrangement with their employer, those protections cannot kick in for six months even if they agree it on week one. I would be delighted to be wrong on that but my understanding of what the Minister has said is that if someone agrees it in the first week, or starts from the first week, on a remote working-type arrangement, the protections the Minister has outlined do not kick in until six months are up. Is that right?
I think that is very wrong. Protection should be there for people who are remote working. Again, it is that paternalistic, grace and favour arrangement and attitude.
The Minister referenced the importance of an employer knowing the worker can access the office. As it stands, an employer does not need to know where a person lives. All they need to know is that the worker turns up. If the requirement is to be in the office on a Wednesday, they need to be in the office on a Wednesday. If they have to get up a couple of hours early or stay overnight in their mother’s because she happens to live close to the office, it is not really their bosses’ business. I am a little disturbed that the Minister thinks it is. This is a new form of working. It is one which many people benefited from during the pandemic. It cuts down on people commuting and it improves their work-life balance, which is what we are talking about. If it is not someone's boss's business now where someone lives, and it is not, then I do not see how it can suddenly become his or her business just because they happen to apply for remote working. Again, it is that attitude of a grace and favour arrangement or it being almost like a treat.
I have done enough legislation in this place to know that when the answer to every second question is either “code of conduct” or “review”, it is a red flag that the legislation is being rushed and is not being done correctly. I would love to be proven wrong but that is my worry. It is regrettable that someone could come to a voluntary arrangement with their employer and find themselves outside of the protections, limited as they are.
A PLS process has been undertaken on the original proposals in terms of the right to request remote working. PLS was also undertaken in terms of the work life balance Bill. The core recommendation from that PLS process was the use of that code of conduct. That is central. There are 20 recommendations and six of them referred to the importance of the code of conduct, and they also referred very clearly to the unacceptability of legislative reasons for refusal. Having taken the guidance of the PLS to do that piece of work, particularly in terms of the determination, and to let that be done in a code of conduct drawn up by the Workplace Relations Commission, it is strange to then criticise our use of the code of conduct in terms of elements that will be decided there. We are following what I think was good advice from the Oireachtas joint committee in terms of the use of the code of conduct. This Bill and the use of the right to request remote working is going to be significantly strengthened as a result of the strong recommendations that came from the PLS process. Contrary to what Deputies are arguing, it is an example of the Government listening to Deputies, listening to the opinions that came from that PLS report and legislating for stronger legislation and a stronger ultimate right for workers to avail of that.
There was no PLS conducted on this section of that Bill. The PLS was on an entirely different piece of legislation. That is the point I was making. If it was any way unclear, I apologise, but I thought it was a fairly simple and straightforward point. The PLS and the report that arose from it was on a completely different piece of legislation. I am not disputing that PLS took place in regard to the work life balance Bill but there was no PLS on this section. I understand the Minister took on board some of what was in the recommendations. However, there was no PLS conducted on this Bill, which is essentially, or should be, in my opinion, a stand-alone piece of legislation, and it is not. What is effectively a Bill on its own has now been wedged into another Bill. That is fine. That is the Government's prerogative, it has the votes and that is grand, but it is being wedged into another Bill. To say that PLS has been done on it is not correct. PLS was done on an entirely different piece of legislation. It was done on the work life balance Bill without what is effectively another Bill being put into it. That is the point I was making. It is a relatively straightforward point but it would be erroneous for anyone listening to this to think that PLS had been conducted on that section of this Bill. Some of the PLS which was conducted on another piece of legislation has been incorporated into this, and I do not dispute that, but there was no PLS done on that section of the Bill. It was done on the work life balance Bill without that section in it. It was done on an entirely different piece of legislation by another committee in regard to the right to request remote working.
Amendment agreed to.
Bill reported with amendment.
I move amendment No. 31:
In page 19, between lines 9 and 10, to insert the following:
“PART 4
CODE OF PRACTICE
Definitions – Part 4
28. In this Part—
“Act of 1998” means the Parental Leave Act 1998;
“Commission” means the Workplace Relations Commission;
“Minister” means the Minister for Enterprise, Trade and Employment.
Code of practice
29. (1) The Minister may, following consultation with the Minster for Children, Equality, Disability, Integration and Youth, give a direction to the Commission requiring the Commission to prepare and submit to him or her a code of practice for the purpose of practical guidance to employers, employees and any other persons as to the steps that may be taken for complying with one or more provisions of Part IIA of the Act of 1998 or Part 3.
(2) The Commission shall comply with a direction under subsection (1) and shall prepare and submit to the Minister a draft code of practice.
(3) Before submitting a draft code of practice to the Minister under subsection (2), the Commission shall request any person that it considers appropriate, including trade unions and employer representative bodies and the Irish Human Rights and Equality Commission, to make representations to it in relation to the draft code of practice, and the Commission shall consider any such representations made.
(4) The Minister may, at the request of the Commission or of his or her own volition, after consultation with the Minister for Children, Equality, Disability, Integration and Youth, the Commission and the Irish Human Rights and Equality Commission, give a direction to the Commission to revise the draft code of practice submitted to him or her under subsection (2) in such manner as is specified in the direction, and the Commission shall comply with the direction and resubmit to the Minister a revised code of practice.
(5) The Minister may, following consultation with the Minster for Children, Equality, Disability, Integration and Youth, by order, declare a draft code of practice submitted or resubmitted to him or her in accordance with this section to be an approved code of practice for the purposes of Part 3 or Part IIA of the Act of 1998, and the text of the approved code of practice shall be set out in the order.
(6) The Commission shall publish the approved code of practice on its website.
(7) The Minister may, by order, after consultation with the Minister for Children, Equality, Disability, Integration and Youth, the Commission and the Irish Human Rights and Equality Commission, revoke or amend an approved code of practice.
(8) Every order under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
(9) A code of practice standing approved under this section shall be admissible in evidence in proceedings before a court, the Labour Court or an adjudication officer appointed under section 40 of the Workplace Relations Act 2015.”.
Amendment agreed to.
I move amendment No. 32:
In page 20, between lines 32 and 33, to insert the following:
“Amendment of Adoption Act 2010
20. The Adoption Act 2010 is amended in section 100—
(a) by the substitution of the following for subsection (5):
“(5) Subject to subsection (7), the members present at a meeting called under subsection (4) shall choose one of their number to chair the meeting.”,
and
(b) by the substitution of the following for subsection (6):
“(6) The quorum for a meeting of the Authority is—
(a) the chairperson or deputy chairperson, or
(b) in the case of a meeting called under subsection (4), and where applicable, the member chosen under subsection (5) to chair the meeting who, for that meeting, shall be regarded as the chairperson for the purposes of subsections (9) and (10),
and 2 other members, one of whom may be the deputy chairperson where the chairperson or another member chosen under subsection (5) is presiding.”.”.
Amendment agreed to.
Bill recommitted in respect of amendment No. 33.
I move amendment No. 33:
In page 20, between lines 32 and 33, to insert the following:
“Amendment of Irish Human Rights and Equality Commission Act 2014
21. The Irish Human Rights and Equality Commission Act 2014 is amended by the insertion of the following section after section 45:
“45A.(1) Subject to section 45, a person who was a member of the staff of the Human Rights Commission and who—
(a) prior to the establishment day, ceased employment with the Human Rights Commission, or
(b) has a preserved superannuation benefit with the Human Rights Commission,
shall, with effect from the date of commencement of this section, be deemed to be a civil servant in the Civil Service of the State in respect of superannuation benefits payable, in accordance with the provisions of those schemes, as a result of his or her membership of the superannuation schemes created under section 20 of the Human Rights Commission Act 2000.
(2) With effect from the date of commencement of this section, superannuation benefits referred to in subsection (1) shall be payable by the Minister for Public Expenditure and Reform out of funds provided by the Oireachtas.”.”.
As set out on Committee Stage, this amendment provides for an amendment to the Irish Human Rights and Equality Commission Act 2014 to allow for the payment of pensions for retired former staff of the Human Rights Commission through the Department of Public Expenditure and Reform. Section 45 of the Irish Human Rights and Equality Commission Act provides for the transfer of staff of the Irish Human Rights Commission and the Equality Authority to the Irish Human Rights and Equality Commission. The new section 45A will address an anomaly regarding the pension provision for the former staff of the Human Rights Commission to have their pension payments made by the Department of Public Expenditure and Reform.
Amendment agreed to.
Bill reported with amendment.
I move amendment No. 34:
In page 21, to delete lines 7 to 9 and substitute the following:
“(b) in section 41(7)—
(i) by the substitution in paragraph (c)(iii) of “father or other parent” for “father”,
(ii) by the substitution in paragraph (g) of “the occurrence of the dispute,” for “the occurrence of the dispute, and”,
(iii) by the substitution in paragraph (h) of “the occurrence of the dispute, and” for “the occurrence of the dispute.”, and
(iv) by the insertion of the following paragraph after paragraph (g):
“(i) in the case of a dispute relating to the entitlement of an employee or the obligation of the employer, as the case may be, under Part 3 of the Work Life Balance and Miscellaneous Provisions Act 2022, it has been referred to the Director General after the expiration of the period of 6 months beginning on the day immediately following the date of the occurrence of the dispute.”,
(c) in Schedule 1, by the insertion in Part 2 of the following paragraph after paragraph 19:
“20. Part 3 of the Work Life Balance and Miscellaneous Provisions Act 2022”,
(d) in Schedule 5 by the insertion in Part 3 of the following paragraph after paragraph 8:
“9. Part 3 of the Work Life Balance and Miscellaneous Provisions Act 2022.”,
and
(e) in Schedule 6—
(i) by the insertion in Part 1 of the following paragraphs after paragraph 38:
“39. Section 21A of the Parental Leave Act 1998
40. Section 26 of the Work Life Balance and Miscellaneous Provisions Act 2022”,
and
(ii) by the insertion in Part 2 of the following paragraphs after paragraph 38:
“39. Section 21A of the Parental Leave Act 1998
40. Section 26 of the Work Life Balance and Miscellaneous Provisions Act 2022”.”.
The amendment provides for the replacement and insertion of new provisions into section 20 of the Bill, which amends the Workplace Relations Act 2015. These amendments are technical in nature and consequential on other amendments being made today, including the separation of the Bill into Parts.
Amendment agreed to.
I move amendment No. 35:
In page 21, between lines 9 and 10, to insert the following:
“Amendment of Birth Information and Tracing Act 2022
21. The Birth Information and Tracing Act 2022 is amended—
(a) in section 5(2), by the insertion of “In this section,” before ‘‘ ‘public body’ ”,
(b) in section 25(2), by the insertion of “to section 33A or” after “Without prejudice”,
(c) in section 31(2), by the insertion of “to section 33A or” after “Without prejudice”,
(d) in section 32(4), by the substitution of “section 33 or for the purposes of section 33A,” for “section 33,”,
(e) by the insertion of the following section after section 33:
“Agency and Authority may conduct trace for certain purposes under Part 3 or 4
33A. The Agency or the Authority may—
(a) where either receives an application under section 21(1), 22(1), 27(1) or 28(1), or
(b) on the request of another relevant body that receives an application referred to in paragraph (a),
conduct a trace for the purposes of establishing, for the purposes of section 21(3)(b), 22(3)(b), 27(3)(b) or 28(3)(b), as the case may be, whether a person is deceased.”,
(f) in section 34(1)—
(i) by the insertion of “or where section 33A applies,” after “section 33,”,
(ii) in paragraph (a), by the substitution of “relates,” for “relates, or”,
(iii) in paragraph (b), by the substitution of “direction, or” for “direction.”, and
(iv) by the insertion of the following paragraph after paragraph (b):
“(c) where section 33A applies, trace the person concerned for the purposes of establishing whether the person is deceased.”,
and
(g) by the insertion of the following subsection after section 34(8)—
“(8A) Where the Agency or Authority, in a case to which section 33A(b) applies and having taken the steps referred to in subsection (1)(c)—
(a) establishes that the person concerned is deceased or not deceased, or
(b) is unable to establish whether the person concerned is deceased,
it shall, in writing and without delay, inform the relevant body concerned of that fact.”.”.
Amendment agreed to.
I move amendment No. 36:
In page 21, to delete lines 10 to 18.
Amendment agreed to.
Bill, as amended, received for final consideration and passed.
The Bill will be sent to the Seanad.