I welcome the Minister, Deputy O'Gorman, to the House. Amendments Nos. 22 to 25, inclusive, 51 and 52 are related and may be discussed together, by agreement.
Work Life Balance and Miscellaneous Provisions Bill 2022: Committee Stage (Resumed)
SECTION 8
The Bills Office has been informed by email that I am moving Senator Currie's amendments today. She is out of the country as part of an Oireachtas delegation, so I apologise on her behalf. She has been a very strong advocate of this Bill for the past two years. I just want to make sure that a couple of her points are put on the record of the House.
Agreed.
I move amendment No. 22:
In page 14, to delete lines 2 to 4.
In Senator Currie's view, amendment No. 22 requires a straightforward deletion of the requirement to work for 26 weeks before there is an entitlement to request a flexible working arrangement or remote working. As the legislation stands, the idea is that a person still has to prove himself or herself before being entitled to flexible work, which means we are not embracing a new approach to working after all. Some get access to flexibility and some do not. Social benefits and change come when flexibility is made part of a cultural change rather than something subjected to terms and conditions.
The requirement to work in an office environment for 26 weeks, or six months, will hold people back from working and living where they want, if their roles allow it in the first instance. Location will remain a barrier to employment as people will have to base themselves where their jobs are before proving they can work remotely.
Senator Currie believes our national strategy of bringing remote work to the regions will be held back as a result of this condition. It will hold back lone parents, people with a disability and others who need flexibility from day one. Under the legislation, such people will have no guarantee after six months that they will be given flexibility.
I thank the Senator for speaking on behalf of Senator Currie. These amendments propose to delete or alter the proposed section 13B(4) in part or in full. It provides that a flexible working arrangement for caring purposes cannot commence before an employee has completed six months of continuous service with the employer concerned. Providing a minimum length of service of six months before an employee can commence a flexible working arrangement or remote working arrangement allows an employer the time to assess the plausibility and practicality of a request from a new employee. An employer may, of course, waive this period. That is an important point to note.
The entitlement to many forms of family leave requires a minimum period of employment with an employer. For parental leave and carer's leave, for example, the minimum period is one year. Statutory sick leave requires a period of 13 weeks' continuous service. The directive itself envisages a notice period for flexible working arrangements.
These amendments also propose to delete or alter section 20 in part or in full. It mirrors the flexible working provisions providing that a remote working arrangement cannot commence before an employee has completed six months' continuous service with the employer concerned. Under this Bill, a request for remote working can be made from day one and a remote working arrangement can commence at six months. Again, an employer can waive this period as the intention of the legislation is to provide floor-level protections for employees. In effect, an employee may start a remote working arrangement up to 12 weeks earlier than provided for under the original Bill on the right to request remote working, which, as we know, has been amalgamated into this Bill. We believe the provisions in the latter strike a balance between the need of the employee to have flexible or remote working requirements and the need of the employer to have some sense of the practicalities of the implementation of the request. Therefore, I do not propose to accept the amendments.
I seek more clarification from the Minister. I have amendments in this section also. The Minister indicated the employer can waive the requirement but I do not see where in the Bill this is allowed. In fact, the language is quite strong and clear in this respect. On page 14, subsection (4) states, "An employee's approved flexible working arrangement shall not commence before a time when the employee concerned has completed 6 months continuous employment with the employer concerned." The Minister will be aware that my amendment in the grouping would insert, after "not", "subject to the approval of the employer and the employee". If there were a discretionary right to ensure a flexible working arrangement can begin from the first day, with the approval of the employer, it would be fine, but the legislation states "shall not commence". It does not state "excepting where an employer chooses to have a waiver". In fact, it almost seems to prohibit it. Many employers lose out on really good people because sometimes very good people are available only if there are flexible working arrangements. Women returning to work sometimes have vast experience and incredible qualifications but may be interested in returning only on a flexible basis. If they have to work for six months without flexibility, it almost defeats the purpose. This points to a fundamental misunderstanding of flexible working arrangements as arrangements that solely benefit the employee rather than ones that are very positive and workable and result in work that is as good as, or of higher quality than, that which would otherwise be done.
The six-month requirement is creating an unnecessary hurdle. If the Minister is saying employers may have a discretionary agreement for the first six months and then operate based on a legislative arrangement, it seems needlessly messy. In that scenario, somebody would be asked to take a job on the basis of what may come down the line in six months as opposed to a clear, improved flexible working arrangement resulting in a common understanding at the point of deciding to take or do the job.
The Minister has mentioned this waiving of this six-month waiting period a number of times but I do not see the clause that allows for it. It may be that it is included in another part of the legislation that I have not seen, in which case I would be delighted and happy to withdraw my amendment.
I take Senator Higgins's point and support my colleague, Senator Currie, who has done an awful lot of work on this. Employers have a right to offer contracts with terms and conditions that exceed statutory minimums. They cannot contract people out of statutory provisions but they can always give more than is statutorily required. I disagree on one hand in that I believe employers can put in whatever working arrangements they wish. I see the "shall" in the Bill as being restrictive with regard to whether there is recourse to the Workplace Relations Commission, WRC, which would only be the case where these arrangements were decided upon in a discriminatory manner. There would only be recourse to the WRC from day one with regard to employment equality. The "shall" in the Bill would have the effect of denying the WRC jurisdiction but would not prohibit an employer from providing such an arrangement. In that light, I am half way with Senator Higgins.
As Senator Seery Kearney has stated, any employer is entitled to provide flexible arrangements in contracts now, and many do. The Senator has already spoken about how many employers get really good employees by making work as attractive as possible. What we are working to put in place here is a statutory system that, as Senator Seery Kearney has said, employers will not be able to contract out of and through which they will be bound to offer the right to request these arrangements to all employees, including even employees working in firms that do not see the benefit or understand the attractiveness of the offer of flexible work to employees. We are providing this as a basic level of entitlement. It is a very significant step forward with regard to that right to request but it does not take away an employer's right to offer flexible work arrangements from day one, as some already do.
If there is no objection to employers putting such arrangements in place from the beginning, why not accept the amendment, which would allow employers to apply the statutory measure from day one? It is a choice. If one is choosing between two jobs, it would be good to know.
I am happy for the provisions to be subject to an additional bar or to mutual agreement in the first few months but, if both parties who are relevant and affected are happy to waive the six-month period relating to the application of this statutory measure, which has justiciability at the WRC and so on, why not allow for that? Why is the State requiring employers to wait six months before this statutory measure can take effect?
For persons who are choosing between two competing offers of employment, it seems like an unnecessary obstacle that contracts can only have this one statutory provision. We have come to a couple of other points whereby the State is imposing an assumed preference on the part of the employer on the legislation rather than allowing flexibility. If it is the preference of the employer and the employee for this statutory provision to begin from day one, why does the State want to impose a six-month waiting period? I appreciate that the Minister may wish for the sole right of initiation, which sits with the employee at the moment, to be there but surely there should be some flexibility from the State in that regard.
What is the procedure here? If I officially moved the amendment, is it up to me to decide whether to withdraw it or is it up to Senator Higgins?
It is for Senator McGahon to decide whether to press it.
In that case, as I moved it, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 23 not moved.
I move amendment No. 24:
In page 14, line 2, after “not” to insert “, subject to the approval of the employer and the employee,”.
Amendment put and declared lost.
Amendment No. 25 not moved.
I move amendment No. 26:
In page 14, line 27, after “certificate” where it firstly occurs to insert “, care order, voluntary care agreement”.
Amendment No. 26 seeks to ensure that care orders and voluntary care arrangements are included as documentation that may be used as part of a request for a flexible work arrangement. This is to ensure that foster parents are able to submit such requests even if they do not have access to a child's birth certificate.
I do not believe we are at variance here but I am concerned about adding these in. It is important to say that the list of documentation provided for under the legislation is not exhaustive. The proposed section 13B(7) provides for the information an employer may require from an employee who has made an application for a flexible working arrangement, which includes documentation such as a birth certificate or certificate of adoptive placement, although this is not an exhaustive list.
Our concern is that it may not be appropriate to insert references to care orders or voluntary care agreements into this section due to the nature and types of orders this could encompass. As the list of documentation is not exhaustive, it is not clear to us what is the purpose behind this amendment. There is an openness to the use of documents as supporting evidence so we do not feel it is necessary to go into this level of detail. We understand that these would already be included as documents that could be used.
I am again surprised at the lack of willingness to take on constructive proposals. While the Minister may choose to understand that these documents are included, employers will not be experts on the foster care system, care orders and so forth. The concern is not that the list needs to be exhaustive. We have already spoken about the concerns regarding people who may not in fact be acting in loco parentis and may not be covered by that definition in another part of the Bill. Rather than putting it on employers, who may not know anything about foster care or the system, to figure out if a care order is a legitimate document, why not specifically list care orders when they are a document likely to be used by those providing foster care, who we expect to be able to use the provisions of this Bill based on our debate the previous day? Why not make life easier for both the employer and the employee seeking to activate this provision by mentioning something that we know is likely to be used rather than leaving it for an employer to interpret the provision, an employer who might argue that such an order is not a birth certificate, which may cause needless stress at what is likely to be a stressful time for those involved? I just do not understand why we do not include it.
The legislation outlines the information an "employer may reasonably require in relation to the person in respect of whom the request is made", which includes the documents set out in section 13B(7)(a), the section the Senator is seeking to amend, and, in section 13B(7)(b) which states: "in the case of a person referred to in subsection (1)(b): (i) the employee’s relationship with the person in respect of whom the request is made", from "an employee who is or will be providing personal care or support to a person to whom this paragraph applies".
We can list every single potential document that has ever existed if we want to, but we are not doing that. The legislation clearly provides for the sort of documentation that would establish personal linkage to prove that personal care is being provided as would be provided in the case where a foster parent is providing care to a foster child. Its inclusion risks becoming overly prescriptive, which is why I do not propose to accept it.
It is not overly prescriptive or exclusive. I am leaving it wide open for other documents that may emerge as being relevant. I am not looking for every single document to be listed. That would be if I was looking for an exclusionary list. I am simply saying let us put in and name something we know is likely to be used. That is not the same thing. It is important to be clear on what is being proposed. I am proposing the inclusion of two kinds of documentation not the construction of a completely comprehensive list. With respect, wanting to include one thing is not suggesting we will have to put everything in. That would apply to any of these documents mentioned. It is simply one that we know is likely to be used. It is one that people are not likely to be familiar with. It would be better to name it. I regret the Minister cannot accept the amendment.
Amendment put and declared lost.
Government amendment No. 27:
In page 14, line 29, to delete “(1)(b):” and substitute “(1)(b)—”.
Amendment agreed to.
Amendments Nos. 28, 32, 34, 35, 38 to 41, inclusive, 47, 54, 61 and 62 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 28:
In page 14, line 37, to delete “is signed,” and substitute “is signed by the employer and the employee,”.
These amendments harmonise the language in the drafting of the Bill. They ensure that the provisions can be clearly understood and there is continuity of language in the relevant provisions. They do not substantially change any of the provisions referenced but merely ensure that the policy intention is clear. I commend amendments to the House.
Amendment agreed to.
Amendment No. 29 not moved.
Amendments Nos. 30, 31, 53 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 30:
In page 15, line 14, after “needs” to insert “, relevant to the functioning of his or her business,”.
These amendments relate to the slightly strange language used in the Bill. It is not really typical of how we would normally approach it. We have already discussed the solely needs-based approach rather than a rights-based or good practice-based approach. It does not focus on work-life balance as a positive good but on the balancing of pressing needs. In the way that some of these are framed there is an assumption of a tension between employer needs and employee needs rather than positive arrangements which may be put in place and which suit all. Section 13C states:
(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,
Consideration of the employee's needs is one thing in this particular arrangement. The same language is echoed elsewhere. In this section it relates to the issue of a flexible working arrangement in respect of care. Framing it in terms of an employer's needs is odd. We do not sign contracts simply with abstract references to the employer's needs. Needs can be anything. Needs can be the need for control or the personal desire to see people smiling at you every day. Instead, when making these decisions, I have suggested inserting "relevant to the functioning of his or her business". It is not this very loose and amorphous phrase of the employer's needs, but specifying the employer's needs that are relevant to the functioning of his or her business.
Amendment No. 31 proposes perhaps a better way to put it of describing the needs as "relevant to the fulfilling of the employee’s duties,”. An employer may have multiple needs, which I as one single employee should not be bound to be considering or managing. I should be considering whether I do the job that I have been contracted to do and that I am required to do, and whether I can perform the functions that are relevant to my duties as an employee. That is the relevant thing to consider when considering a flexible work arrangement and not a kind of power balance or emotional play-off of needs.
That language relating to the employer is not appropriate for workplace legislation. We should be tying the consideration process to that flexible working arrangement. I accept needs might be appropriate in this case which relates to the flexible caring duties or needs of an employee. However, for an employer the key thing to consider is if the employee can perform the role they have been hired to perform and what the employer needs from them for the functioning of the business.
That particular one relates to where an employee is requesting flexible working arrangements in terms of care. Amendment No. 53 relates to a different section, section 20 on the right to request a remote working arrangement. Senator Currie has been very articulate on remote working arrangements. Remote working arrangements are not based solely on need. They should not need to be based on need. Remote working arrangements are not simply based on someone's need to care. It should not be necessary to put a needs case forward when requesting remote working.
An employee may simply prefer a remote working arrangement. As we discussed the last day, an employee might simply prefer not to commute four days a week or three days a week. An employee may, for example, like to listen to music while they work. They might want to be able to look out their window. They may think they work better when they are at home. There are lots of reasons for seeking remote working. Framing this as the weighing-up of employees' needs and employers' needs is the opposite of seeking a transformative work-life balance which encourages work-life balance as a positive thing wherever possible.
I do not understand why this needs framing is being inserted. The same language is being copied across from something which at least on the employees' side has a need basis relating to the need to provide care. Why is that same language being used for remote working arrangements? This is in section 21 on page 27. I have used the same wording in amendment No. 53. I will reserve the right to come back on that because I think that needs framing is wrong altogether. At a minimum, we should be speaking solely about the needs that are relevant to the functioning of his or her business. I think the needs framing in general needs challenging in that section.
The new section 13C to be inserted into the Parental Leave Act sets out the obligation on the employer to consider a request for flexible working and the process and time limits to be followed. The provision sets out that employers must consider their own needs and the employees' needs. I appreciate that the amendment seeks to add more detail to this point, but there is a risk that this might inadvertently limit the consideration to a narrow frame and disadvantage the employee in some way.
Section 21 of the Bill deals with the employer’s obligation to consider a request for remote working arrangements, having regard to the employer’s needs, the employee’s needs and the requirements of the code of practice. In a similar manner to the proposed flexible working amendment, we would have a concern about limiting the scope of consideration as is proposed by amendment No. 53. It is important to note that with regard to the needs framing that the Senator talked about, in using that language, we are replicating the language of the directive that sets out needs framing. Ultimately, this section of the Bill is a transposition of EU law.
On perhaps the beauty of the language, I would share the Senator’s view. The flow is not as if we were drafting it from scratch. However, this is transposition. Certainly, in the Office of the Parliamentary Counsel, there is a strong view that in order to make sure that our transposition is correct, we are using that language of the directive. That section and the balancing section contained within the directive is an essential element in ensuring the employer’s needs, which is the term used in the directive, and the employee’s needs are appropriately balanced within the domestic legislation that is transposing the EU directive.
It is important and we need to take a step back in terms of the functioning of the legislation. The legislation strengthens the employee’s entitlement to consideration further than what was set out in the directive by the introduction of the statutory code of practice. That statutory code of practice was called for in the pre-legislative scrutiny process by the joint Oireachtas committee on the original right to request remote working Bill and that code of practice is now part of this Bill. The detail of the consideration of request will be set out in the code of practice, which will be worked through by the Workplace Relations Commission.
This language is being used because we are transposing and the advice we received is that it is important to rely on the language used in the directive. It is also for the practical application of the directive. There are strong protections for the rights of employees here through the innovation that we decided to implement, which is the statutory code of practice.
I would like the Minister to clarify a matter. Is the directive being specified in relation to the section on flexible arrangements for care or the section on remote working? Is that same directive argument applying to both of those parts?
I am speaking on the use of the language on the needs of the employee and the needs of the employer. That is language set out within the directive and that is why it is being reflected in these provisions.
To clarify, the Minister mentioned one part of the Bill is transposition of the EU directive. I am just clarifying because there are two areas where the language is used. One is in respect of seeking flexible working arrangements for care and the other is in respect of remote working. I am looking for clarification as to whether the EU directive-motivated section applies to both of those or solely to one of them. That would be useful for us as we continue on to the next stage of our debate.
The language used for direct transposition is in the context of the flexible working provisions. However, we also think that in respect of the coherence of the legislation, it is important that we use similar language and a similar approach throughout it.
I wish to clarify a couple of points. I accept, to a degree, the point on the coherence of the language. I still have concerns on it. I do not accept that my amendments would have in any way inadvertently disadvantaged employees because my amendments solely related to the definition of “needs” in respect of employers and that there be clarity.
On flexible working arrangements, the hope would be that the code of practice would then provide clarity on how the needs question gets interpreted in a meaningful way, for example, making it clear that it should be the needs in relation to the functioning of a business or the performance of a employee’s functions - the kinds of things that I have looked to put in the primary legislation. Am I to understand that the Minister believes that those kinds of concerns can be addressed through the statutory code of practice and the guidance it will provide on the decision-making process for the flexible working arrangement?
On the question of remote working, they are quite different. One is, as the Minister said, transposition and there is a need for it. There is a clear needs frame. I have not challenged the fact of a needs frame for the employee regarding the flexible working arrangement. However, remote working arrangements are very different. I would ask that the Minister consider whether the needs framing is the appropriate framing in remote working arrangements. That is not bound by the concerns of the EU directive. That is probably the one where I have the greatest concerns.
I have one amendment that I will press but I indicate now that I will bring further amendments on that section on Report Stage. Simply saying “coherence” and that we used it in one place is not a good enough argument for saying that the Government wants to use the same frame to deal with a completely different situation later on. The right tool for the right task is what is appropriate.
A better tool regarding the consideration of requests for remote working could be found. I would urge that rather than cut and paste across, we find something targeted and relevant to a positive approach to remote working. I would also check whether the statutory code of practice will be separate for each or if one code will cover both. Perhaps that could be clarified as well.
On the right to seek remote working, in requesting remote working, an employee must have the opportunity to set out his or her needs, that is, the reason they are seeking the right to remote working. The requirement to share a need is intended to be a practical element of a request to support fair and balanced consideration by the employer. It is not intended to force employees to share information they do not wish to. Work-life balance is a legitimate reason of its own right if someone is applying for remote working arrangements. Again, guidance on this element will be developed further through the code of practice. It gives that opportunity for that needs analysis to take place. As the Senator knows, there are well-used practices within the Workplace Relations Commission for the development of codes of practice.
-----reasons might be better language but we can come back to that again on Report Stage.
I withdraw the amendment and reserve the right to reintroduce.
Amendment, by leave, withdrawn.
I move amendment No. 31:
In page 15, line 14, after “needs” to insert “, relevant to the fulfilling of the employee’s duties,”.
I withdraw the amendment and reserve the right to reintroduce on Report Stage.
Amendment, by leave, withdrawn.
Government amendment No. 32:
In page 15, to delete lines 22 and 23 and substitute the following:
“(II) the date of commencement and the duration of the flexible working arrangement,”.
Amendment agreed to.
I move amendment No. 33:
In page 15, between lines 32 and 33, to insert the following:
“(2A) Where an extension under subsection (2) occurs, the employer shall notify the employee in writing of the reasonable grounds upon which such the extension is required.”.
I do not see my notes but I will continue anyway. Amendment No. 33 effectively is related to the fact that an employer can extend the period of time of making a decision on a flexible working arrangement request. My amendment states that where there is an extension of the time period for making a decision on a flexible working arrangement request, the employer shall notify the employee in writing of the reasonable grounds on which the extension is required. Basically, this is to ensure that it cannot be simply automatic. At the moment, the Bill simply states that they can extend it by another eight weeks. That is two months. Two months is very long for people, for example, seeking a flexible working arrangement because they have a difficult family situation, such as a family member stepping down from hospital in need of care who needs them to be able to work at home for part of the time.
It should not simply be sufficient that the employer can say they have taken a month, and now they are going to take another two months and they will get back to you then. I am not objecting to the extension. I am simply saying that a rationale should be provided. It cannot simply be that they decided not to think about it, or chose not to examine the issue, or that they are basically against giving you this leave so will stall it as long as they can in the hope that your family situation resolves itself and that you stop the request. There are lots of things. It should be reasonable grounds. For example, if you are looking at and examining the work balance in the workplace, or at how the rota might work. Lots of reasonable grounds can be imagined. In such circumstances it is fine for an employer to take an extension. However, an automatic two-month extension on not getting back to somebody leaves people in limbo. It means people will be in limbo for three months waiting for the decision, without knowing why they are waiting that extra two months. It is a reasonable balance for the reason to be given as to why the extension is being taken, rather than sought, because it is there for the taking.
I thank the Senator. A lot of thought has gone into the process of how these requests will be made, and there is an element of trying to balance the needs of the employees, as the Senator articulated, and the needs of employers. We are covering a diverse range of employers, many where the right to request remote or flexible working will be easily or reasonably easily provided for. However, there are others where it will not so easily be provided for and it will be difficult. It may take some time and consideration. The provision for additional time to consider the request is not automatic. It requires the employer to inform the employee that they are taking additional time. In a situation where they have not been able to come to final conclusion about the reasonableness of the request, to require them to set out why they have not come to that conclusion, I am not sure how beneficial that is, in terms of the process. I hope this reassures the Senator, but what is secured is that there is not an automatic right on behalf of the employer to allow the two extra months to just run on. They have to inform the employee who has made the flexible work request that additional time is needed. Again, in terms of a situation where no final decision has been made, to be looking for reasons for the request for extra time is significant and may not be deliverable in a meaningful way.
I would disagree that it is not automatic. It is automatic. It simply states the employer may extend the four-week period by a further period, not exceeding eight weeks. It is absolutely at the discretion of the employer to extend it by the extra two months. Simply saying you have informed somebody that you have extended it by two months does not mean it is not an automatic right to extend it by two months. I was not even taking away the automatic right to extend it. I was simply saying that as well as informing the employee they are taking another two months to decide, it would be reasonable to say they are taking another two months to decide for certain reasons. It is a difficult thing for people even to put in this request, and they are being left in limbo for a quarter of a year waiting for the decision. The Minister mentioned that they may not have come to a conclusion. It may be that they have not even begun the process of thinking about it. By inserting my amendment, where they at least have to give a reason as to why they want the extension, it would be a positive incentive for employers to have at least begun the process. They have to at least have begun the process to be able to give a reason as to why they need the extension. At the moment, difficulty assessing the viability could literally be they have decided not to start assessing the viability. Their schedule could be busy and they could have other things they want to do instead. The imperative in the Bill is very low for an employer to decide within the first month. I do not believe the balance has been rightly struck here, and I would again urge the Minister to consider what I think is an incredibly mild amendment. I am not removing the eight week extension. I was simply looking that, be they only two sentences, a reason would be given for the eight-week extension.
Amendment put and declared lost.
Government amendment No. 34:
In page 15, line 39, after “signed” to insert “by the employer and the employee”.
Amendment agreed to.
Government amendment No. 35:
In page 16, line 10, after “signed” to insert “by the employer and the employee”.
Amendment agreed to.
Amendments Nos. 36, 55 and 57 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 36:
In page 17, line 10, after “occupation” to insert “that are reasonable and demonstratable”
I apologise to the Minister as Senator Currie is unavailable. I will speak to the overall grouping, in particular amendments Nos. 36, 55 and 57. The point that Senator Currie is quite keen to get across in relation to amendment No. 36 is that whatever the grounds for refusal are, be it for remote or flexible working arrangements, they need to be reasonable and demonstratable. Using existing parental leave legislation is a good approach because it gives the employee conditions to request flexible work in the first place. The grounds for terminating the arrangement are far too wide, in Senator Currie's view. She is quite concerned about their potentially sweeping nature. What the Senator is trying to do in amendment No. 36, and on what she is hoping the Minister reassure her, is that by adding "reasonable and demonstratable" it puts the onus on employers to be reasonable in refusing or terminating the arrangement in a way that they must be able to demonstrate to the Workplace Relations Commission, WRC.
On amendments Nos. 55 and 57, the issue here is that it removes the condition that someone might have to be available in the office to cover the work of somebody working remotely. Senator Currie does not see the point of this amendment. If the role is remote, someone is not needed in the office to do it in the first place because the person working remotely is already doing that job from a remote location. The point of remote working is that operations accommodate people and their ability to work from home and work remotely. It is not to expect someone else to do their job when they are not there. On amendments Nos. 55 and 57, Senator Currie believes the legislation misses the point of remote working in the first instance.
I thank the Senator. These amendments seek to amend the provisions relating to the termination of a flexible or remote working arrangement and could represent an undue interference in how the employer operates his or her business. The proposed insertion of the words "reasonable and demonstratable" is unnecessary. The bar for termination is set appropriately high. Employers cannot terminate an arrangement for trivial reasons. The termination provisions can only be used when the employer is satisfied that the arrangement is having, or would have, a substantial adverse effect on the operation of their business. Employers must be able to stand over the reasons for termination, as they are required to provide the employee with a written notice detailing the grounds. The proposed insertion of the word "business" to limit the employer's consideration of their own needs is also unnecessary as the termination provisions can only be used when the employer is satisfied that the remote working arrangement is having, or would have, a substantial adverse effect on the operation of his or her business. This means that the employer's scope to use this provision is already limited to a significant degree. The final proposed amendment concerns the circumstances where an approved remote working arrangement can be terminated. The unavailability of a person to carry out the duties of the employee at the employer's place of business is a legitimate reason for an employer to terminate a remote working agreement. It is right that employers should retain the authority to make decisions in the best interests of their businesses and be able to respond to challenging circumstances. This Bill does not allow for terminations without due consideration. It requires employers to consider employees' needs, as well as business needs, when making a decision and they must also abide by the code of practice.
Employees have a right to make representations to the employer with regard to an employer's proposal to terminate an arrangement and can make a complaint to the Workplace Relations Commission, WRC, if they believe their employer has not fulfilled their obligations under the section. I am not in a position to accept these amendments.
I thank the Minister for his very detailed response-----
(Interruptions).
Does the Senator wish to come in?
I will speak briefly in favour of Senator Currie's amendments. They demonstrate the fact she has a very good understanding of remote working and how it operates. I do not believe there is the right balance. There are problems with the language in the Bill about the basis on which an employer can withdraw the arrangement. It is very fair to put in the words "reasonable and demonstrable" because, otherwise, a considerable amount is resting on the individual psychology or preferences of an employer. I wish to note areas in this section, because I may bring amendments to them on Report Stage. One of them is the fact that only the employer needs to be satisfied with the arrangement. The person who needs to be satisfied by the argument is solely the employer. If the employer can demonstrate that I agree with myself, as it were, that is almost the bar that is being set here.
Even if the issue is brought to the WRC, we do not have objective language such as "reasonable and demonstrable". We simply have the test around whether it is trivial and whether the employer is satisfied with his or her own argument. It is a bit of a tautological loop. The other point is about the concern with the employer's satisfaction. I am concerned not only that the arrangement "is having" but also "would have ... [an] adverse effect on the operation". Rather than give evidence, a person can simply say he or she believes it would have an adverse effect. That person is not being required to demonstrate why it would have an adverse impact or reasonably to show that. He or she is given space for speculation and agreement with him or herself. That is a concern.
Even if written reasons go to the employer, who might go to the WRC, there is very little for the employee to lean on unless we have objective standards that are not solely in the psychology of the employer, but are separate, "demonstrable", as Senator Currie said, or "reasonable", which is an established phrase in multiple parts of legislation. We are always asking that things would be reasonable. The word has good legal form.
The amendments by Senator Currie are very good. I urge that they be properly considered. If the Minister will not accept them at this point, I urge that he examine section 13E, in particular section 13E(1), and look to how there could be some kind of strengthening or improving of the language in them.
I thank the Minister for his engagement and thank him on behalf of Senator Currie. I am happy to withdraw the amendment. Senator Currie may consider on a future Stage. I apologise that she cannot be here. The Bill has been very close to her heart in the past two years.
Amendment, by leave, withdrawn.
Amendments Nos. 37 and 58 are related and may be discussed together by agreement.
I move amendment No. 37:
In page 17, between lines 18 and 19, to insert the following:
“(1A) Where a termination of a flexible working agreement occurs due to circumstances described in subsection (1)(a), the termination shall only be valid for the period in which such seasonal variations occur and upon the conclusion of that period the flexible working agreement shall resume.”.
Amendment No. 37 seeks to introduce a new subsection to section 13E which would require that, ""here a termination of a flexible working arrangement occurs due to circumstances described in subsection (1)(a) [which is seasonal variation], the termination ... [should] only be valid for the period in which seasonal variations occur and upon the conclusion of that period the flexible working arrangement ... [should] resume."
The is an amendment to ensure that seasonal variations in work or business do not prevent flexible work arrangements from being agreed on at all or that we do not have a situation where seasonal variations are used as a reason or an excuse to end a flexible work arrangement permanently where it would be appropriate to continue it outside the period of seasonal variation. We know businesses have one, two or three busy months, such as during a good summer in certain areas. The business may have one busy month, such as a Christmas period which is extremely busy, and requires many more people to be there in-person. However, we should not have a situation whereby some seasonal variation or one or two busy weeks or months in the year are used as a reason, with somebody having gone through the laborious process of flexible working arrangements with regard to care, to fully terminate an arrangement that is working for the other 11 months or 50 weeks of the year.
There is a concern that, in the Bill, the fact of seasonal variations, which are very common in many workplaces, is being used as a reason for terminating the norm. The exception is effectively being used to overturn the rule rather than simply accommodating the exception. My amendment seeks to recognise there may be periods where a flexible working arrangement may need to be suspended for a period of time but also to ensure it is not an indefinite suspension or termination of such an arrangement.
Amendment No. 58 is a similar issue to amendment No. 37. It relates to the termination of a remote working arrangement due to the circumstances described in subsection (1)(a) with regard to seasonal variation and says that termination, and the language should probably be that it should be a suspension, should only be valid for the period in which such seasonal variations occur, and upon the conclusion of that period of remote working, the remote working agreement should resume. The amendment is to ensure seasonal variations in work and business do not prevent remote work arrangements from being agreed upon and that seasonal variations are not used as a reason to end flexible work arrangements permanently when it is appropriate to continue them outside the period of seasonal variation.
There is a process to go through and there may be a three-month waiting period. We do not want a situation where every employee who wishes to have a flexible or remote working arrangement is in a position where he or she needs to reapply for the arrangement. An employee may have to reapply in September, because August was busy, wait another one, two or three months and then it is gone again. That is not serving anybody. It is unnecessary and cumbersome and moves both the employer and employee right back to the beginning of the process, when an employer may simply want flexibility around a temporary suspension of an arrangement rather than having to go back to the very beginning.
Amendments Nos. 37 and 58 are amending the process around termination. It is important to make the point that the provisions of the Bill do not preclude employees from making a request for follow-on, flexible working or remote working arrangements to commence, once a period of seasonal variation concludes. A flexible working agreement could address the seasonality of the workplace with regard to the use of shortened or flexible hours during certain parts of the year. However, that would have to be done with agreement between the employer and the employee as part of the flexible working agreement. Where an employer seeks to terminate on the basis of seasonality, the employee can make a new request, which could be designed to reflect the seasonality of work in that workplace.
I addressed the fact that one may end up with people reapplying a one- to three-month period of waiting for a decision, after reapplying, and all the paperwork being done again.
This is the kind of measure that is going to make this legislation not work. When things like this are put in legislation, people will apply, they will do it, it will be this whole process, they will get it and then they will find the arrangements pulled out from under them. This may be done by an employer who says they really need people this month. The Bill does not provide the employer with an option of seeking a temporary suspension for, say, a four or six-week period. The option for the employer is also that they must deal with a whole new request and go through the whole process again from the start. How is that serving anybody? How is that not needless extra paperwork? Why would not provide for this in the legislation? If seasonality is an issue and there are such variations, why not recognise that? Rather than giving this nuclear option of termination to employers, we should give them something they can actually use, like a temporary suspension. That might be something that would serve both employer and employee better, rather than going back to the whole process again and starting that whole piece again. Of course, it does not preclude people going through it again if they wish.
Do we as legislators genuinely want people to be accessing flexible and remote work, rather than just pretending to offer it to them and having legislation in order that we can go on the plinth and say, is it not great this is available? If we want something that works, let us look to how it will work in practice. We all know how it will play out if many arrangements are put in place coming into termination in August or in December at a busy time of year. We risk having an initial rush of people applying for this and then the process wears them down and it becomes one of those things people can technically go for but they feel it will only be taken away from them again in six months' time. People will wonder if it is really worth going through the hassle. Why not give tools that will work? When we are saying things to the Minister in the Chamber, I have been concerned by the very flat non-acceptance of what are constructive, straightforward ideas. Why not accept a constructive idea that deals directly with the issue of seasonality in a way that suits both employer and employee rather than lumping seasonality, which is a temporary issue, in with the other more permanent and substantial reasons for termination that are here? Why not treat it differently? It is, after all, different.
We discussed this earlier with respect to how the employer, in making a decision on a flexible working relationship, has the right to consider his or her own needs and the rights of the employee. In doing so, the seasonal nature of a business will no doubt be a significant part of the considerations about the decision to grant flexible working arrangements or not but also how those flexible arrangements operate. Employers who see the importance of this legislation to making themselves attractive to employees will be able to work to design a flexible working arrangement that includes whatever is necessary to get their business, in terms of their business needs, through a particular seasonal variation in work patterns. It may be the case they try it once and the process does not work but subsequent to that, the employee can come back and seek a new arrangement and the seasonal nature of that particular workplace can be reflected. As for an automatic suspension, if the employer has been concerned enough about the impact of the flexible working relationship on their business, an automatic suspension perhaps does not recognise the potential significance of that impact for the employer by allowing a termination in that situation. The legislation also places no restriction on the employee's right to seek a new flexible arrangement. Thus, the legislation allows for the employer to be able to protect the business if there is a particular part of the season where the flexible working arrangement is creating a concern for them, but it also allows a renegotiation of the flexible working arrangement subsequently.
Amendment agreed to.
Amendment put and declared lost.
Government amendment No. 38:
In page 18, line 3, after “signed” to insert “by the employer and the employee”.
Amendment agreed to.
Government amendment No. 39:
In page 18, line 7, to delete “commencement” and substitute “approval”.
Amendment agreed to.
Government amendment No. 40:
In page 18, to delete lines 11 to 17 and substitute the following:
“(3) An employer who receives a request referred to in subsection (1) 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 not later than 4 weeks after receipt of the request, by notice in writing, respond to the employee to inform him or her—
(i) that the request has been approved, or
(ii) that the request has been refused and of the reasons for the refusal.”.
Amendment agreed to.
Government amendment No. 41:
In page 18, line 25, to delete “commencement” and substitute “approval”.
Government amendment No. 42:
In page 19, line 21, after “2019/1158” to insert “of 20 June 2019”.
Amendment agreed to.
Amendment No. 43 is in the name of Senator Keogan, who is not present.
Amendment No. 43 not moved.
Section 8, as amended, agreed to.
Sections 9 to 12, inclusive, agreed to.
SECTION 13
Government amendment No. 44:
In page 22, line 16, to delete “section 13F” and substitute “section 13F(3)”.
Amendment agreed to.
Government amendment No. 45:
In page 22, line 33, to delete “(3)” and substitute “(3)(b)”.
Amendment agreed to.
I move amendment No. 46:
In page 22, lines 40 and 41, to delete “ shall not assess the merits of” and substitute “may where appropriate consider and take into account the reasonableness of”.
This amendment relates to the right to appeal the decision by the employer. It is worth reading into the record what exactly is in the legislation. The proposed section 21A(6) states:
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...
(b) the refusal by the employer ...
(c) the decision of the employer to terminate ...
I have engaged with the Minister and his Department officials on this and that was welcome but as this Bill stands there is, in our reading, no right to appeal the substance of a refusal by an employer or the termination by an employer of a flexible working arrangement.
I appreciate this is in some ways a hybrid Bill. It is the Work Life Balance and Miscellaneous Provisions Bill and the right to request remote work Bill 2021 forced together. I previously argued we should be treating flexible work and remote work the same but the key point is when we saw the heads of Bill for the right to request remote work Bill there was genuine outrage at the lack of a right to appeal the substance of a refusal by an employer. There was a provision in the heads that were published to appeal the process the employer and the employee would have undertaken but not the substance of a refusal. That would be a significant shortcoming in this legislation and at odds with the spirt of the rest of our employment legislation whereby if there is a change of working conditions a person has, by and large, a right to appeal that change. That this legislation effectively does not allow a right to appeal a refusal or any decision by the employer with regard to an employee's request is a significant shortcoming. I am aware the Department takes a very different view but it is important we bring this amendment forward because of that shortcoming.
I thank the Senator and thank her for her engagement with me and my officials on this point. Section 13 inserts a new section 21A into the Parental Leave Act that sets out the process for the consideration of a dispute between an employer and an employee related to Part 2 of this Bill. Section 21A(6) sets out that an adjudication officer or the Labour Court shall not assess the merits of the decision of an employer or a refusal of a request made under Part IIA.
This is an important provision. The Senator is right because, and we have always been up front about this, the Bill does not introduce an automatic right to flexible working. It is a right to request such working. In fairness, this has always been described as a right to request. Any dispute can only be in relation to the request process and the procedure set out in respect of whether the employer has complied with the various processes set out in the legislation. The Senator's proposed amendment would extend the power of the adjudication officer or the Labour Court beyond what is set out in the Bill and would look at the reasoning and question the reasoning the employer used. I know that is the Senator's intent, but it is not what we are in a position to legislate at this point, nor is it what we were ever proposing to legislate for. That is our position on amendment No. 46.
The same concern arises in the context of amendment No. 63. This would provide a right to remote working. Again, this is not what we are purporting to provide here. It is important to say that we have strengthened the process of the adjudication. Bringing in the code of practice will be important in terms of ensuring that there is a robust examination of the process the employer has undertaken regarding consideration of a request. Ultimately, however, this legislation provides for a right to request. We all speak about the changed work circumstances, but it is important to recognise that here are many workplaces in which remote working is not possible. All of us are lucky that many of the jobs we do can now be done remotely, but large parts of the workforce do not enjoy this ability. It is important that we recognise this and the fact that the additional benefits are not fully and evenly distributed as yet. We must also recognise that in certain workplaces a right to request remote working is not going to be a reality because working remotely simply does not meet the requirements of that particular workplace now.
Before we proceed, I remind Members that amendments Nos. 46 and 63 are related and will be discussed together by agreement. Is that agreed? Agreed. Any Senator who wishes to speak on amendment No. 63 must do so now. I call Senator Higgins.
A pattern is emerging. Of course not every workplace is suitable for remote working. If we have proper legislation, then reasonable grounds can be shown. I refer to the reasonable and demonstrable language Senator Currie is talking about and the kind of language Senator Sherlock is putting forward in respect of reasonableness as well. If there is a reason why remote working is not appropriate, that is fine. However, we must look to the pattern here in respect of the amendments being rejected. I refer to every amendment that seeks reasonableness be applied or inserted into the process anywhere, the idea that reasons might have to be given to explain why decisions have not been yet been taken and a request in terms of reasonableness around the presentation of reasons for terminating an agreement.
Equally, there is the point being made in this amendment regarding even allowing the Workplace Relations Commission to talk about reasonableness. There is a line between the right to request remote working and having an automatic right to it. A right to request remote working should be one where there is a right to request this facilitation and that, where reasonable, it would be granted. This is different from having an automatic right to remote working, but it is not as vague as a situation whereby employees are being allowed to shout into the wind. In this instance, who will know what will have happened in employers' minds? Nobody will be able to assess in any way whether the decision made is reasonable. Why should the Workplace Relations Commission not be able to comment on the reasonableness of a response to a request? It may not have the power to force an agreement and an obligation in terms of remote working and this might well be one thing that would be a step further in this context. Surely it should be able to comment on the reasonableness of requests.
Going back to some of the other language referred to earlier concerning situations where an employer is satisfied about what might happen in the future, where employees are satisfied and where nobody comments on it, the Minister indicated that they can go to the Workplace Relations Commission. This body is not going to be able to help them at all, however. This whole process that the Minister spoke about regarding all these reasons being written out and provided to the employees to explain why it has been decided not to provide an arrangement or, indeed, to terminate such an arrangement is worth nothing because the Workplace Relations Commission can do nothing with it. The commission cannot comment on the matter. The Minister referred to narrowing the scope. I hope we do not get lots of little videos popping up on Twitter saying that we have brought in remote working and we are brilliant, because the Minister has been really clear that he is not bringing in a right to remote working. The right to request remote working is there as a process, but there is not even going to be a requirement of reasonableness properly inserted into the legislation in respect of the decision-making process relating to these requests. I do not think that this is great news.
The Minister stated that he wanted to be clear and not overly ambitious, but I can anticipate the media response we are going to get after this section goes through. The more we look at it, the weaker and weaker it appears. It is really disappointing. The time to introduce meaningful remote working and a right to it is now. The Minister mentioned different employees in different categories. He is correct. That is what this comes back to again and again. There are those who will be in a strong negotiating position with an employer. There will also, though, be many people who desperately need flexibility and who would really like to and know they could do a job remotely, but where the power imbalance is going to be weaker. In this case, the legislation will not even require an assessment of reasonableness in relation to how that power, which is stacked heavily in favour of the employer, is going to be exercised.
I agree with everything Senator Higgins said. We know that not all work is suitable for flexible working conditions. I do not think any of us advocating for a right to flexible work has ever said that, notwithstanding that some on the Government side - and I am not saying this about the Minister - have tried to throw this at us. The key question is whether it is the role of the Government and legislation to decide what work is suitable for flexible work arrangements or whether it should be left up to the Workplace Relations Commission. Effectively, this legislation is reflecting a conservative mindset, truth be told, towards the scope of flexible work here. It is a sad reflection on the Bill that we are not allowing the right to appeal the substance of what is proposed. I accept that we are not going to change anybody's minds here, but it is important to say that the role of legislation in this regard should be to try to facilitate a right to request remote working or whatever. The key point is that we are placing a restriction on employees' right to challenge the substance of refusals.
As I said earlier, this provision has always involved a right to request. I have certainly never advertised it as anything else. It is a significant change, and we should be cautious not to talk down what is going to be a significant advance in terms of the rights workers have. We must recognise that the provisions here have been strengthened throughout the process. Significant changes were made between the pre-legislative scrutiny phase and the Bill coming before the Dáil, where is was amended further. An important change is the introduction of the code of practice, which will be developed by the Workplace Relations Commission in the context of its experience in this area.
Fundamentally, however, this is about a right to request. That is what is being delivered in the context of the legislation. We have also put in place the ability to review this legislation within a tight timeframe. I do not believe it will happen, but if some of the concerns raised by Senators throughout this process arise, there will be an opportunity to address them by means of the review, which will take place after the legislation has been in operation for two years.
This is normally a short timeframe for review, but because of the significance of this legislation, it is appropriate to give it some period of operation while at the same time allow us to make changes or indeed a future Oireachtas to make changes.
Amendment put and declared lost.
Government amendment No. 47:
In page 22, to delete lines 42 and 43 and substitute the following: “(a) the decision of the employer reached following his or her consideration under section 13C(1)(a) of the employee’s request,”.
Amendment agreed to.
Section 13, as amended, agreed to.
Section 14 agreed to.
SECTION 15
Amendments Nos. 48 and 49 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 48:
In page 23, line 29, after “years” to insert “or when the employment ceases”.
Amendment No. 48 seeks to include in the proposed amendment to section 29 of the principal Act that where records of medical leave are kept that as well as the three-year limit on the retention of such record, that they would be destroyed when employments ceases, whichever occurs earlier. As such records are likely to contain sensitive information, it is important from a data protection viewpoint that the sensitive information of former employees is not retained for any period beyond its intended purpose.
Can I check if it is grouped?
It is grouped with amendment No. 49.
Amendment No. 49 seeks to include in the proposed amendments that where records of flexible working arrangements are kept as well that the three-year arrangement for the retention of such records that they may be destroyed when employment ceases. It is the same data protection but I have slightly different feelings about amendment No. 49 in that the pattern or outcome of arrangements is something a company may wish to have a record of but other sections of the Bill require quite a considerable amount of information, and the Minister will be aware that we pushed for amendments in relation to that. Currently quite a lot of information in relation to the medical needs, the care needs and so forth of a third party is required. That is the context in which I believe those records may need to be destroyed. However, I do not object to the retention of records of the fact or indeed the outcome in terms of flexible working arrangements. Amendment No. 49 could be nuanced further but amendment No. 48 is very clear in terms of medical records.
I thank Senator Higgins. Section 15 of the Bill amends section 27 of the Parental Leave Act, which provides for the retention of records to be held by an employer in respect of forms of leave and entitlements under the Bill. Section 15 provides that those records related to leave for medical care purposes and the right to request a flexible working arrangement be held for three years only and obviously the requirements of the general data protection regulation, GDPR, are that third party data should only be held for as long as necessary. My understanding is that if we accept Senator Higgins's amendment and a person's employment lasts for longer than three years, we will be holding the documentation for longer than three years. We have some concern about the outcome of her amendment. In certain circumstances, may be to hold data for longer than three years and that may be necessary in some places but it may not so there is an outcome that holds it for longer so we are not proposing to accept this immediately because of that.
I accept that concern and retention of records post-employment is the main thing I want to get to rather than the other piece. I am happy to not press the amendment at this point and to come back to it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 49:
In page 23, line 31, after “years” to insert “or when the employment ceases”.
Amendment, by leave, withdrawn.
Section 15 agreed to.
SECTION 16
Government amendment No. 50:
In page 24, line 9, to delete “21(1)(a)” and substitute “21(1)(b)(i)”.
Amendment agreed to.
Section 16, as amended, agreed to.
Sections 17 to 19, inclusive, agreed to.
SECTION 20
Amendment No. 51 not moved.
I move amendment No. 52
In page 26, line 18, after “not” to insert “, subject to the approval of the employer and the employee,”.
Amendment put and declared lost.
Section 20 agreed to.
SECTION 21
I move amendment No. 53:
In page 27, line 15, after “needs” to insert “, relevant to the functioning of his or her business”.
Amendment put and declared lost.
Government amendment No. 54:
In page 27, to delete lines 26 and 27 and substitute the following:
“(ii) provide a notice in writing informing the employee that the request has been refused and of the reasons for the refusal, or”.
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22
Amendments Nos. 55 and 56 not moved.
I move amendment No. 57:
In page 28, line 13, after “her” to insert “business”.
Amendment put and declared lost.
I move amendment No. 58:
In page 28, between lines 19 and 20, to insert the following:
“(2) Where a termination of a remote working agreement occurs due to circumstances described in subsection (1)(a), the termination shall only be valid for the period in which such seasonal variations occur and upon the conclusion of that period the flexible working agreement shall resume.”.
Amendment put and declared lost.
Government amendment No. 59:
In page 28, line 21, to delete “employee concern” and substitute “employee concerned”.
Amendment agreed to.
Government amendment No. 60:
In page 28, line 34, to delete “each”.
Amendment agreed to.
Section 22, as amended, agreed to.
Section 23 agreed to.
SECTION 24
Government amendment No. 61:
In page 29, line 10, after “signed” to insert “by the employer and the employee”.
Amendment agreed to.
Government amendment No. 62:
In page 29, to delete lines 20 to 23 and substitute the following:
“(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—
(i) that the request has been approved, or
(ii) that the request has been refused and of the reasons for the refusal.”
Amendment agreed to.
Section 24, as amended, agreed to.
Sections 25 and 26 agreed to.
SECTION 27
Amendment No. 63 not moved.
Government amendment No. 64:
In page 32, line 15, to insert “alternative” after “the” where it thirdly occurs.
Amendment agreed to.
Section 27, as amended, agreed to.
Section 28 agreed to.
Amendment No. 65 not moved.
Section 29 agreed to.
Section 30 agreed to.
SECTION 31
Government amendment No. 66:
In page 33, line 9, to delete “Minster” and substitute “Minister”.
Amendment agreed to.
Government amendment No. 67:
In page 33, line 29, to delete “Minster” and substitute “Minister”.
Amendment agreed to.
Section 31, as amended, agreed to.
Sections 32 and 33 agreed to.
SECTION 34
I move amendment No. 68:
In page 34, line 31, after “her” to insert “or their”.
I welcome section 34 and think it is inclusive language in recognising women and other persons who may need to avail of the provisions in the section.
This is a technical amendment. In order to be consistent with the inclusive framing that has been used, if we were to say "her or their", it would be consistent with the "women or other persons" language. Again it is inconsistent with what is an otherwise appropriately well-framed section.
I thank the Senator. I recognise what she is trying to do with the inclusivity of the language. As she is aware, we have designed the Bill so that the practical benefits are inclusive. In engagement with the drafting office, we have been told the legislation may be read in accordance with the provisions of the Interpretation Act and that as a result, this amendment is unnecessary because of the way in which the term is applied in the Interpretation Act. The recommendation from the drafting office is that this amendment would not be accepted at this point.
Amendment, by leave, withdrawn.
Section 34 agreed to.
Sections 35 to 39, inclusive, agreed to.
SECTION 40
Government amendment No. 69:
In page 36, to delete line 38.
Amendment agreed to.
Government amendment No. 70:
In page 37, lines 1 and 2, to delete “Maternity Protection Act 1994” and substitute “Act of 1994”.
Amendment agreed to.
Government amendment No. 71:
In page 37, lines 3 and 4, to delete “Maternity Protection Act 1994” and substitute “Act of 1994”.
Amendment agreed to.
Government amendment No. 72:
In page 37, line 31, to delete “Section 28” and substitute “Section 27”.
Amendment agreed to.
Government amendment No. 73:
In page 37, line 36, to delete “Section 28” and substitute “Section 27”.
Amendment agreed to.
Section 40, as amended, agreed to.
Section 41 agreed to.
Amendment No. 74 not moved.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Tuesday.
Is that agreed? Agreed.
Report Stage ordered for Tuesday, 21 February 2023.
Cuireadh an Seanad ar fionraí ag 2.35 p.m. agus cuireadh tús leis arís ag 3.30 p.m.
Sitting suspended at 2.35 p.m. and resumed at 3.30 p.m.