Select Committee on Children, Equality, Disability, Integration and Youth díospóireacht -
Tuesday, 8 Nov 2022

Work Life Balance and Miscellaneous Provisions Bill 2022: Committee Stage

Chairman

We have received apologies from Deputy Michael Creed. We will consider Committee Stage of the Work Life Balance and Miscellaneous Provisions Bill 2022. I welcome the Minister for Children, Equality, Disability, Integration and Youth, Deputy Roderic O'Gorman, and the officials who are with him, to the meeting. I will read the note on privilege.

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

I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex to participate in public meetings. I cannot permit members to participate where they are not adhering to that constitutional requirement. Therefore, if any member attempts to participate from outside the precincts, he or she will be asked to leave the meeting. I ask members who are participating via Microsoft Teams to confirm they are on the Leinster House campus before making their contribution. I remind members that should a vote be called, they must be physically present in the committee room to vote.

I believe the Minister wanted to make a few comments before we commence consideration of the Bill.

Minister for Children, Equality, Disability, Integration and Youth (Deputy Roderic O'Gorman)

I am pleased to be here to debate this Bill. As I said on Second Stage, it is Ireland's most ambitious legislation directed solely at improving work-life balance. I look forward to our discussions today. The Bill not only transposes the EU work-life balance directive, but it will also help to fulfil a number of programme for Government commitments for parents and carers. It will deliver a right to request flexible working so that mothers, fathers and carers can be there for their children and families. It will deliver five days of leave per year for care for serious medical issues. It will extend breastfeeding breaks from six months to two years. There are 27 Government amendments to the Bill. The majority of the amendments are technical and facilitate the key amendment I am introducing, which will, for the first time, introduce paid leave for the victims of domestic violence. This transformative legislation will make Ireland one of the first countries in the EU to provide such leave. It will further protect and promote women's participation in the workplace.

I flag to the committee that the Government is actively considering the integration of the provisions of the right to request remote working Bill into the Work Life Balance and Miscellaneous Provisions Bill. The objective of the published right to request remote working Bill is to provide a legal framework around which requesting, approving and refusing a request for remote working can be based. It is also intended to provide legal clarity to employers on their obligations to deal with such requests. This is similar to the framework for flexible working requests set out in the Work Life Balance and Miscellaneous Provisions Bill. The Tánaiste and I have reflected on the recommendations from the pre-legislative scrutiny reports on both Bills and on input from stakeholders, including observations made in this House. It is clear that integrating the relevant legislative provisions of the right to request remote working Bill might represent a good way forward. Subject to Government approval, this approach would deliver an integrated Bill that gives a right to request remote working to all workers while the right to request other forms of flexible work would remain limited to parents and carers as defined in this Bill. This means that all requests for remote and flexible working would be considered under one integrated Act, simplifying the process for employers and employees. Pending Government approval, these changes to the Bill will be tabled as amendments at a later stage in the legislative process.

I also intend to table a minor technical amendment on Report Stage, subject to Government approval, to amend the Birth Information and Tracing Act 2022, to provide for Tusla or the Adoption Authority of Ireland to conduct a trace to ascertain whether a parent named on a birth certificate is deceased for the purposes of enabling the release of information to a qualifying person or relative under Parts 3 and 4 of that Act.

On Report Stage, I will introduce technical amendments to the Irish Human Rights and Equality Commission Act 2014 to regularise pension arrangements in the Irish Human Rights and Equality Commission. I will also introduce amendments to the Adoption Act 2010 to alter the quorum requirements for meetings of the board of the Adoption Authority of Ireland to provide greater flexibility with regard to the board members who may form a quorum to ensure that adoption orders will be made. However, additional time is needed to ensure these amendments are completed. They will be introduced on Report Stage.

Similarly, on Report Stage, I hope to introduce provisions to provide for maternity leave for Oireachtas Members. I know that has been discussed at length in the Dáil and Seanad. I hope to table those amendments on Report Stage.

On Report Stage, I may table an amendment to explicitly provide that the processing of data by an employer with regard to the entitlements under this Bill will be subject to measures being taken to safeguard the fundamental rights and freedoms of data subjects. That will be subject to further legal discussion between my Department and other Departments.

The Government amendments to the Bill today have the overall purpose of providing, for the first time, paid leave for victims of domestic violence. This is achieved through amendment No. 6, which provides for the insertion into the Bill of a new section 6, which inserts a new section 13AA to the principal Act, which is the Parental Leave Act 1998. The other amendments are all necessary and consequential to the introduction of domestic violence leave, ensuring, for example, that employment protections are extended to employees who avail of the leave. There are amendments which correct small grammatical errors in the Bill as initiated.

Sections 1 and 2 agreed to.

SECTION 3

Chairman

The first amendment is in my name and that of Deputies Ward and O'Reilly, but I put it on the record that I will not discuss any Sinn Féin amendment. Amendments Nos. 1 and 14 are related and will be discussed together.

Deputy Mark Ward

I move amendment No. 1:

In page 5, line 18, to delete “26 weeks” and substitute “one week”.

As was said, amendments Nos. 1 and 14 are related. Many groups that made submissions to the committee about this Bill recommended the removal of the eligibility criterion of being in employment for six months. It is our view that this would negatively impact lone parents who may need flexibility to take up a job in the first place, those returning to work following a period out of the labour market for care purposes, who are more likely to be women, as well as workers on temporary contracts, who are also more likely to be women. It is our view that retaining the eligibility criterion of being in employment for six months would prevent lone parents from taking up employment and therefore directly contribute to the ongoing high rate of poverty, which is at 13.1%, and deprivation, which is currently at 44.9% among this cohort of people.

Deputy Roderic O'Gorman

The Bill as initiated inserts a new subsection (3A) into section 6 of the principal Act to provide for workers who have had successive temporary contracts with the employer in the last six months to be deemed as having had a continuous period of service for the purpose of calculating the qualifying period. The amendment, as drafted, would appear to reduce the six-month or 26-week period to one week. Likewise, amendment No. 14 amends section 6, which inserts a new subsection (5) into the new section 13B in the principal Act to provide for a right to request a flexible working arrangement for caring purposes. Subsection (4) of the new section 13B provides that an employee's approved flexible working arrangements cannot commence until the employee concerned has completed six months of continuous employment with the employer from whose employment the leave is being taken.

Subsection (5) provides for workers on temporary contracts to have previous employment with the employer in the past six months deemed as a continuous period of service for the purposes of calculating the qualifying period. The proposed amendment, as drafted, would appear to reduce that six-month, 26-week period to one week. This would mean that only one previous employment in a week would qualify as continuous service for the purpose of calculating the qualifying period. Providing for a minimum length of service of six months before an employee can commence a flexible working arrangement allows an employer the time to assess the plausibility and practicalities of a request from a new employee. Obviously, an employer does not have to wait until the six-month period but some time is needed for an employer to be able to understand whether he or she can provide this flexible work to the employee. I would argue that just one week is not enough time for that judgment to be made.

It is also important to recognise that the entitlement to many forms of family leave require a minimum period of employment with an employer. For parental leave and carer's leave, for example, the minimum period before a person can claim those is one year. The new statutory sick leave requires a period of 13 weeks' continuous service. The directive itself allows for and envisages a notice period for people requiring flexible working arrangements. I will not be advising that the committee accepts these amendments.

Amendment put and declared lost.

Question proposed: “That section 3 stand part of the Bill.”

Deputy Sean Sherlock

I beg the Chairman's forgiveness. I wish to seek clarification on amendment No. 1. Is there scope to reintroduce or revisit that issue on Report Stage?

Chairman

There is scope once it has been discussed.

Deputy Mark Ward

Once it has been discussed and pressed.

Deputy Sean Sherlock

Okay. I thank the Chairman.

Question put and agreed to.

SECTION 4

Chairman

Amendments Nos. 2 to 4, inclusive, 8, 34 to 38, inclusive, and 44 are related and may be discussed together.

Deputy Roderic O'Gorman

I move amendment No. 2:

In page 5, line 34, to delete “ “sickness”;” and substitute “ “sickness”,”.

Amendment No. 2 is grouped with amendments Nos. 3, 4, 8, 34 to 38, inclusive, and 44. All of these technical amendments are to correct grammatical errors. Government amendments Nos. 2 to 4, inclusive, and amendment No. 8 deal with grammatical errors in the Bill, as initiated. They remove unnecessary punctuation, a semi-colon and the words "and" or "or" from sections 4, 5 and 6. Government amendments Nos. 35 and 38 correct grammatical errors in the Bill, as initiated. They add the word "and", where necessary, in sections 15 and 16. Government amendment No. 44 is again a simple insertion of the word "and" to correct a grammatical error in section 18 of the Bill. I commend these amendments to the committee.

Deputy Sean Sherlock

Not when there are Oxford commas, though.

Chairman

Do any other Deputies wish to come in? No. The amendments are fairly technical.

Amendment agreed to.

Section 4, as amended, agreed to.

SECTION 5

Deputy Roderic O'Gorman

I move amendment No 3:

In page 6, line 4, to delete “after section 13”.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 4:

In page 6, line 15, to delete “employee; or” and substitute “employee;”.

Amendment agreed to.

Chairman

Amendments Nos. 5 and 15 to 18, inclusive, are related and may be discussed together.

Deputy Holly Cairns

I move amendment No. 5:

In page 7, lines 14 to 30, to delete all words from and including “, and” in line 14, down to and including “reason” in line 30.

The amendment addresses deficiencies in the Bill that have not been addressed. Concerns were raised during pre-legislative scrutiny and those same concerns still remain. Under this section and the section dealing with flexible working arrangements for caring purposes, workers applying for these forms of leave would have to share information such as birth certificates and medical certificates relating to the person who needs care. This requires sharing personal information from a third party which, for one, has general data protection regulation. GDPR, implications.

Applying for oneself is one thing but then employees are required to share intimate details about their loved ones with their employer. We have to interpret the Bill with the understanding that some employers will permit whatever the Bill allows for. Will the Minister clarify what happens in a situation where a worker has to take leave to care for an elderly parent, for example, but that parent is adamant that his or her information is not shared? Many people have strong feelings about others knowing their personal details. It might be a common situation. What would happen in that case?

The pre-legislative scrutiny report sought clarity on those matters. I repeated concerns on Second Stage and, unfortunately, we have not been provided with any changes or reassurances. Therefore, the only course open to me is to propose to remove those sections.

Chairman

Amendments Nos. 15 to 17, inclusive, are in that group. Has the Deputy covered everything?

Deputy Holly Cairns

I am sorry. I did not get the groupings until just now.

Chairman

Amendment No. 5 and then amendments Nos. 15 to 17, inclusive, are to be discussed together.

Deputy Holly Cairns

Amendment No. 15 removes the requirement for an employee to provide a birth certificate or certificate of placement when applying for flexible working arrangements relating to the care of a child. Under what mechanism is the Minister proposing that an employee would, in essence, have to prove that a child is theirs? While I disagree with the Minister on the requirement to provide medical records, this is a bizarre and strange requirement based on the presumption that an employee would make up a child. I am wondering what that means. It is also prejudicial against people who do not have or cannot access birth certificates. It is a barrier that will affect migrants, especially those fleeing conflict and abusive situations. My opinion so far is that it is unjustifiable.

Amendments Nos. 16 and 17 are the same as amendment No. 5.

Deputy Mark Ward

Amendment No. 17 relates to the requirement for a worker to obtain a medical certificate for a third party. It is overly restrictive and places an additional and unreasonable cost burden on parents, particularly lone parents and low-income workers, especially when coupled with the unpaid nature of the leave. It must be considered whether supplying medical information of a third party to an employer is consistent with GDPR regulations.

Deputy Roderic O'Gorman

This set of amendments intend to remove from the Bill the provisions related to the ability of an employer to seek relevant evidence of the circumstances in which an employee is taking leave for medical care purposes. The central part of the policy development from a data protection perspective is that the design of the system should seek to achieve the minimum invasion of privacy rights, be they third-party or otherwise, while also achieving the legitimate objective of ensuring the employer concerned has sufficient information with which to make decisions in terms of the granting of leave.

There is a legislative basis for the processing of such data through GDPR and the Data Protection Act 2018. Both the GDPR and Data Protection Act will apply regarding the obligations on an employer with regard to the processing, storing and destruction of personal information, be that third-party or otherwise. The provisions in the Bill strike the balance required in that they require the minimum information necessary. They are in line with existing provisions in family leave legislation and particularly with the Parental Leave Act, which this Bill amends. Information of a similar nature is sought for other forms of leave such as parental leave where information on the child can be requested, including on any disability. For force majeure leave, a statement of fact must be provided to support the leave.

As I noted in my opening remarks, I am considering an amendment, potentially to be introduced on Report Stage, to provide explicitly that the processing of data by an employer with regard to the entitlements under the Bill will be subject to the measures being taken to safeguard the fundamental rights and freedoms of data subjects. I do not believe these amendments are the best way forward at this time.

Deputy Holly Cairns

What would happen if someone had to take leave to care for an elderly parent and the elderly parent refused for his or her information to be shared with the carer's employer?

Deputy Roderic O'Gorman

There are a range of ways in which the necessary evidence can be provided to the employer, and the employee could engage with the employer on what would be the requisite levels of evidence that may not require the level of detail the Deputy is suggesting.

Deputy Holly Cairns

The Bill is suggesting it, not me. The Bill is suggesting that the person would have to provide certain information. My question relates to what would happen in a situation where, for example, an elderly parent refused to share the information but where the employee still needed leave to care for him or her.

Deputy Roderic O'Gorman

Again, there is an ability for the employee to engage with the employer regarding the type of evidence that is required to base a grant of leave under that provision.

Deputy Holly Cairns

Because of the way the Bill is written, however, the employer will be able to say it is going by the Bill and that, therefore, the employee cannot take leave.

Deputy Roderic O'Gorman

In that case, there are provisions under the Workplace Relations Commission for actions to be taken if an employee believes an employer is unjustifiably refusing the grant of leave.

Deputy Holly Cairns

That is a convoluted way for someone to get leave to care for somebody. That is what my amendment seeks to address, so I will definitely press it.

Deputy Mark Ward

Will the Minister clarify whether the supplying of medical information on a third party to an employer is consistent with GDPR regulations?

Deputy Roderic O'Gorman

Everything that is done under this legislation has to be compatible with the GDPR because, as we know, the GDPR is EU legislation and, therefore, it takes primacy. As I said, I am examining whether it would be helpful to provide an explicit legal basis in this legislation regarding the processing of data. Article 9 of the GDPR and section 46 of the Data Protection Act allow for the processing of data in cases such as this, so I believe it is protected in that regard.

Deputy Holly Cairns

In the event someone cannot access his or her birth certificate, what would happen where the employee has to provide a birth certificate of his or her child to prove the child is the employee's? If the employee is seeking leave and has to provide the birth certificate of the child he or she needs to care for, and if he or she cannot access the birth certificate, what happens?

Deputy Roderic O'Gorman

In that circumstance, the person could sign an affidavit confirming the birth date of the child.

Deputy Holly Cairns

If that is the case, perhaps the provision needs to be removed whereby the person would have to provide the birth certificate and prove that the child is that person's.

Deputy Roderic O'Gorman

The provision of the birth certificate is probably a simpler method of proving that, given it is a form of proof-----

Deputy Holly Cairns

Does this relate to the fear that somebody would pretend to have a child who is not theirs?

Deputy Roderic O'Gorman

I think it relates primarily to the date of birth of the child.

Deputy Holly Cairns

It is about proving the child's age in case somebody lied about his or her age.

Deputy Roderic O'Gorman

It is in order that that there is proof of the child's date of birth.

Deputy Holly Cairns

We will come to the age requirements later because they exclude older children from needing care. Is that correct?

Deputy Roderic O'Gorman

There is a restriction on the applicability of flexible work to parents of children up to 12 years of age.

Deputy Holly Cairns

The suggestion is that after that age, they will not need care.

Deputy Roderic O'Gorman

There is a provision for cases where they require care. If the parent is a carer, that can continue beyond the age of 12.

Deputy Holly Cairns

When we look at the age issue, we will revisit the idea of excluding older children.

Deputy Roderic O'Gorman

To return to the Deputy’s initial point, regarding an elderly parent's details and so on, a person can provide a statement of fact as to why the care is necessary that would not require that degree of detail, and that is provided for in the legislation.

Deputy Holly Cairns

In that case, perhaps the Bill does not need to suggest the person has to provide the medical information if that is not necessary. As it has been written, it could be interpreted by an employee as requiring that information to be provided.

Deputy Roderic O'Gorman

It is one of the methods for how information can be provided.

Deputy Holly Cairns

If the Minister is open to it instead being an affidavit, would it be okay to remove that?

Deputy Roderic O'Gorman

Is the Deputy referring to an affidavit regarding date of birth or health circumstances?

Deputy Holly Cairns

Health.

Deputy Roderic O'Gorman

Again, it is a way of demonstrating the health circumstances but, as I said, there is the potential for a statement of fact as well.

Deputy Holly Cairns

Does the Minister see how this puts barriers in the way of people trying to seek this leave? If, for example, the elderly parent being cared for does not want to share his or her information, the person has to go through this process the Minister outlined instead of it being included in the Bill. The same is true of proving a child is the person's child and proving his or her age. The Minister stated there are alternatives if, for example, the person cannot access a birth certificate, if there are GDPR implications or if the parent does not want to share the information, but why do we not just legislate for that instead of saying birth certificates and medical information have to be provided?

Deputy Roderic O'Gorman

On the access to healthcare, the statement of fact is the primary way whereby a person will seek access to care leave. It is only if there is a query about that that there will be any necessity to rely on further medical information.

Deputy Sean Sherlock

What, in legal terms, is the definition of a "statement of fact" and what weight does it carry?

Deputy Roderic O'Gorman

Section 13A(6) states, "A confirmation under subsection (5) shall ... specify the date of commencement of the leave for medical care purposes and its duration ... and contain a statement of the facts entitling the employee to the leave".

Chairman

It is like a letter. Is that correct?

Deputy Roderic O'Gorman

It is a fairly liberal bar in allowing the employee to seek the leave.

Deputy Jennifer Murnane O'Connor

It is important we have the communication but I can only speak for people I know. Carlow and Kilkenny are small counties and almost everybody knows one another. In my experience, when people are asked for information on any given area, they are good and I think the same will apply here. The Minister referred to a statement of fact. People in general are good. We have to be mindful that we do not put barriers in their way and we have to work with them. Judging by my experience working with people, I think this will be a very good Bill. There were references to a statement of fact, a statement of account or whatever the case may be. People are good and will genuinely help, and it is important we recognise that. They will always be helpful and I have always found that when I require information. It is important that no barriers be put up and that people understand this Bill will be in place. It is about the work-life balance. People tend to be factual and I would not doubt that for a moment.

Amendment put and declared lost.

Section 5, as amended, agreed to.

NEW SECTION

Chairman

Amendments Nos. 6 and 21 to 27, inclusive, are related and will be discussed together.

Deputy Roderic O'Gorman

I move amendment No. 6:

In page 7, between lines 30 and 31, to insert the following:

“Domestic violence leave

6. The Principal Act is amended by the insertion of the following section:

“13AA. (1) An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as ‘domestic violence leave’, where—

(a) the employee or a relevant person has experienced in the past, or is currently experiencing, domestic violence, and

(b) the purpose of the leave is to enable the employee, in relation to the domestic violence experienced by him or her or, as the case may be, the relevant person, to do, or to assist the relevant person in the doing of, any of the following:

(i) seek medical attention;

(ii) obtain services from a victim services organisation;

(iii) obtain psychological or other professional counselling;

(iv) relocate temporarily or permanently;

(v) obtain an order under the Domestic Violence Act 2018;

(vi) seek advice or assistance from a legal practitioner;

(vii) seek assistance from the Garda Síochána.

(2) When an employee takes domestic violence leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken.

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

(4) A day on which an employee is absent from work on domestic violence leave in an employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (3), to be one day of domestic violence leave.

(5) An employer shall pay an employee a prescribed daily rate of pay (in this section referred to as ‘domestic violence leave pay’) for each day on which the employee is absent from work on domestic violence leave.

(6) Subject to subsection (7), the Minister may make regulations for the purpose of prescribing the daily rate of domestic violence leave pay which may—

(a) specify the percentage rate of an employee’s pay, up to a maximum daily amount, at which domestic violence leave pay will be paid,

(b) subject to the maximum daily amount specified in accordance with paragraph (a), specify an allowance in respect of board and lodgings, board only or lodgings only in a case in which such board or lodgings constitute part of the employee’s remuneration calculated at the prescribed rate, or

(c) subject to the maximum daily amount specified in accordance with paragraph (a), specify basic pay and any pay in excess of basic pay in respect of shift work, piece work, unsocial hours worked or hours worked on a Sunday, allowances, emoluments, premium pay (or its equivalent), or any other payment as the Minister considers appropriate, that are to be taken into account in the calculation of domestic violence leave pay.

(7) In making regulations under subsection (6), the Minister shall have regard to the following matters:

(a) the state of the economy generally, the business environment and national competitiveness;

(b) the state of society generally, the public interest and employee well-being;

(c) the potential impact, including the potential for any disproportionate or other adverse impact, that the rate of domestic violence leave pay to be prescribed will have on the economy generally, specific sectors of the economy, employers or employees;

(d) annual and quarterly data on earnings and labour costs as published by the Central Statistics Office;

(e) expert opinion, research, national or international reports relating to the matters specified at paragraphs (a) to (d) that the Minister considers relevant;

(f) the views of employer representative bodies and trade unions;

(g) such other matters as the Minister considers relevant.

(8) In this section—

‘dependent person’, in relation to a person, means any child of the person, or in respect of whom the person is in loco parentis, who is not of full age, or, if the child has attained full age, is suffering from a mental or physical disability to such an extent that it is not reasonably possible for him or her to live independently of the employee or relevant person;

‘domestic violence’ means violence, or threat of violence, including sexual violence and acts of coercive control committed against an employee or a relevant person by another person who—

(a) is the spouse or civil partner of the employee or relevant person,

(b) is the cohabitant of the employee or relevant person,

(c) is or was in an intimate relationship with the employee or relevant person, or

(d) is a child of the employee or relevant person who is of full age and is not, in relation to the employee or relevant person, a dependent person;

‘relevant person’ means, in relation to an employee—

(a) the spouse or civil partner of the employee,

(b) the cohabitant of the employee,

(c) a person with whom the employee is in an intimate relationship,

(d) a child of the employee who has not attained full age, or

(e) a person who, in relation to the employee, is a dependent person.

‘spouse’ has the same meaning as it has in section 2 of the Domestic Violence Act 2018.”.”.

This amendment proposes a new section 6, which inserts a new section 13AA into the principal Act - the Parental Leave Act 1998 - to provide for the first time for paid leave for victims of domestic violence. The proposed amendment to the Act makes provision for five days of leave in any 12-month consecutive period for any employee who is or was a victim of domestic violence or for any employee to support a relevant person in respect of him or her who is or was a victim of domestic violence. The leave is intended to prevent a victim of domestic violence from losing employment, which would put her or him at risk of falling into poverty, by providing paid leave in order to seek medical attention, find alternative accommodation, seek help from An Garda Síochána or the Courts Service, or obtain help from support organisations. The leave can be taken immediately and flexibly and as individual days.

The new section 6(6) provides that the Minister may, with regulation-making powers, prescribe the daily rate of pay that an employer must pay an employee who takes domestic violence leave.

Subsection (8) defines "domestic violence" as "violence, or threat of violence, including sexual violence and acts of coercive control committed against an employee or a relevant person" in respect of an employee. The domestic violence may have been committed by a spouse or civil partner, a cohabitant, a person who is or was in an intimate relationship or an adult child of the employee or the relevant person. Subsection (8) also sets out the categories of relevant person in respect of an employee whom an employee may take domestic violence leave to support. The categories are an employee's spouse or civil partner, a cohabitant, a person with whom the employee is in an intimate relationship, and a child or a dependant of the employee.

Government amendments Nos. 21 to 25 are consequential on amendment No. 6. They amend section 8 by proposing to replace the amendment to section 14 of the principal Act, as set out in the Bill as initiated, and further amend sections 15 and 16A of the principal Act, as set out in the Bill as initiated, to extend the employment protection beyond employees availing of leave for a medical care purpose to include employees availing of domestic violence leave.

Government amendments Nos. 26 and 27 are consequential on amendment No. 6. They propose to extend the amendments under section 12 of the Bill as initiated, which amends section 27 of the principal Act, to ensure that employers maintain records in respect of employees who avail of leave for medical care purposes to include employees availing of domestic violence leave.

Deputy Holly Cairns

While I welcome any amendment that introduces specific domestic violence leave, the manner in which it is happening does a deep disservice to those it will impact. The first sight any Opposition Deputy had of the Government's proposal was on Thursday. Therefore, it was almost impossible to suggest all of the amendments that might be needed at this Stage. In essence, the Minister's proposed actions have not undergone any scrutiny. If it was not for the work of Deputy O'Reilly on this issue, there may not have been an alternative to the Government's proposals.

Given the short turnaround time and lack of context, I have to admit that I have not been able to examine the full implications of the Minister's suggestions on the issues. The most glaring issue is that the leave will consist of one or two days up to a maximum of five in a year. Witnesses and experts at the joint committee have been unambiguous about how there must be ten days of leave per annum. Ms Marie Mulholland of the West Cork Women Against Domestic Violence Project outlined the importance of these days, especially for women in rural settings who face additional barriers in accessing services all the way to the courts. Women's Aid stated that leave should be a maximum of ten days per rolling 12-month period and, in certain cases, ten days may not be enough and additional unpaid leave may be necessary. Dr. Nata Duvvury from the University of Galway informed us that ten days has become the international norm as a minimum, recognising that, for some women, it might be more. She stated: "A period of ten days' leave is now becoming the universal standard."

Domestic violence and gender-based violence is endemic and the scale is terrifying. We also know that the minimum leave proposed should be ten days. As such, it is inexcusable that the Government is suggesting five. While the Minister's rhetoric on addressing gender-based violence is strong, giving victims and survivors only half of the international norm is not acceptable.

Chairman

I will call Deputies O'Reilly, Murnane O'Connor and Sherlock before reverting to the Minister.

Deputy Louise O'Reilly

I will ask a couple of questions after making an observation. I tabled a number of amendments that have been ruled out of order. Amendment No. 39 would have transposed into this Bill the Organisation of Working Time (Domestic Violence Leave) Bill 2020, which was sponsored by Deputy McDonald and me. The Bill was not opposed by the Government, so I do not understand why my amendment has been ruled out of order. I suppose the Minister will tell me that not opposing the Bill is not the same as supporting it, and he would be dead right, but the amendment sought to transpose the essence of that Bill into this one.

The Minister has chosen to amend the Parental Leave Act rather than, as stakeholders have requested of Sinn Féin, the Organisation of Working Time Act, which is primarily where measures on leave are housed. Amending it would have been much easier. Dr. Duvvury spoke about this, as did the University of Galway's HR department when the Minister for Further and Higher Education, Research, Innovation and Science, Deputy Harris, and I launched its domestic violence leave policy. The HR people were content that the leave would be housed within the Organisation of Working Time Act.

Given that a leave period of ten days was Fianna Fáil policy for a long time and is the policy of the Minister's own party in the North, will he explain where halving that came from? Will he give me clear sight of what is going to happen to people in the public service where a policy of ten days has already been adopted? Is that period to be cut back to five or is he creating a two-tiered entitlement? This worries me. I cannot understand where the figure of five came from, given that the norm within the sector is, as Deputy Cairns has pointed out, ten. The stakeholders to whom we spoke said that ten should be the minimum. Up until last Thursday when this Bill was produced, ten was the Government's policy. I launched the University of Galway's policy with the Minister, Deputy Harris. He subsequently wrote to the universities, all of which are in the public service, advising them to adopt a similar policy. I am a bit confused as to why the entitlement that had been spoken about to date and had, as I understood matters, been party policy among the three Government parties has been halved.

Deputy Jennifer Murnane O'Connor

I wish to ask the same question. It is important to get this Bill through and we have been too long waiting for it, but I recall that when this committee last discussed the proposed domestic violence leave, which we are all glad to have, the departmental officials said it would be reviewed after two years. We should consider a period of ten days if possible. While I welcome a period of five days within a year, I am concerned that it is too little. Is there anything we can do? It is important that we get this Bill right.

Deputy Sean Sherlock

With this legislation, one tries try to put oneself into the position of people who find themselves being the victims of domestic violence, but one cannot possibly internalise that experience. From a practical point of view, what steps could someone who wants to take action take and will the five days within a 12-month period be sufficient to do so? For instance, if someone is seeking medical attention, that person may make multiple visits to a GP or consultant in that 12-month period. It is easy to anticipate that seeking the services of a victim support organisation would occur over quite a number of days. Psychological or professional counselling would occur over quite a number of days. Very often, such visits are made within working hours. What about relocation, either temporarily or permanently? When we start adding up all of the days that the Minister codifies in the legislation in terms of when a person can take leave for certain circumstances - for example, visiting a legal practitioner, seeking legal advice or even seeking the assistance of An Garda Síochána - I would contend that five days within a consecutive 12-month period is not enough.

I ask the Minister to please, if at all possible, revisit this on Report Stage to see if there is some scope there to allow for a greater degree of flexibility. As public representatives and Deputies who deal with these issues and who advocate on behalf of our constituents who find themselves in these circumstances to get access to the services, we know how long it takes. Deputy Cairns has just outlined this from a rural point of view in particular. I represent a broadly similar type of constituency in that regard. I am hopeful that the Minister might revisit this, if at all possible. In my experience, employers have been understanding and they allow for a greater degree of flexibility.

My second point on that proposed new section pertains to domestic violence leave where there is a prescribed daily rate of pay. The Minister will make regulations under subsection 6 and will assess “the potential impact, including the potential for any disproportionate or other adverse impact, that the rate of domestic violence leave pay to be prescribed will have on the economy generally, specific sectors of the economy, employers or employees". To enable us to support this amendment, I am trying to get a sense from the Minister of what exactly this will mean in pounds, shillings and pence. Where is the thinking in the Department on that element of this Government amendment? Who is the Minister talking to about this? What is deemed to be a standard rate of pay? Is there thinking around that? I am not aware of what the standard would be. Who will the Minister liaise with on that? Will the Minister liaise with employers, employees’ representatives, trade unions and so on in that regard? To me, it seems to be quite vague.

I am arguing two points, the first of which is that the five days are not enough and the second of which is that we need more detail in respect of the prescribed daily rate of pay. It would be invariably for women and let me not put a tooth in that. Women will primarily be asking me what the prescribed daily rate of pay will be. I think they are entitled to some degree of clarity around that.

Chairman

I call on the Minister to respond. Then we will address any other points.

Deputy Roderic O'Gorman

It is first necessary to recall the fact that there are a small number of jurisdictions internationally that have paid domestic violence leave. A number have paid leave and some of those have ten days. Some of those have ten days of unpaid leave such as, for example, in Australia. The number of countries that have paid domestic violence leave is small. There are states at an Australian level and within the United States and at provincial level in Canada. In the EU, we will be among the first European countries to have paid domestic violence leave. It is important to recall that we are on the cusp of this new change in bringing in this new type of legislation and that recognises the importance we place on supporting victims of domestic violence. It is part of the overall Government response to the epidemic of domestic violence and links in with the work the Minister for Justice, Deputy McEntee, is pursuing in the third national strategy.

In terms of the use of five days, this is what we are introducing as the initial element of leave. We have a designed a review clause in the legislation in order that the legislation will be reviewed after two years. It will be reviewed on a number of grounds and those will be enumerated in the review clause. In particular, it will be reviewed in terms of whether it would be appropriate to extend it further at that stage. That will allow for an analysis of the first two years, for us to look at the uptake, to see if the uptake has been significant or not and if there are other barriers to the uptake. We have looked at plenty of Bills before this committee where we have looked at reviews. Does one let them go on for a long time in order to give them a chance and then see any kinks in the legislation or does one do it quickly? I think that the two-year period is appropriate because it will give some time to work it through and then to examine it subsequently.

It is also important to remember that as well as the legislation itself, we are providing template policies for employers in terms of how they implement this legislation, as well as how they respond to the needs of employees who are victims of domestic violence, even outside of the strict issuing of leave. That may encompass situations such as when any employee has a need for more than five days. As the Deputy said, many employers are already very good and they will not need this provision but this is a statutory entitlement and that is what is important.

To respond to one of Deputy O’Reilly’s questions, this is a statutory entitlement. People who work with an employer that provides for greater levels of leave in their contract will of course be able to enjoy those greater levels of leave. In the same way, we have a statutory entitlement to annual leave but certain employers provide for longer levels of leave.

On the question that Deputy Sherlock asked about the regulating power, we are considering that at the moment. We are looking at the provisions that were put forward in the sick leave legislation surrounding the daily rate that is being provided for there. We see that as providing a potential model for how we will design the regulations on the daily rate.

Finally, there was the question as to why we are going in the direction of amending the Parental Leave Act, as opposed to the Organisation of Working Time Act. Even when we debated in December 2020, when the provision was originally introduced into this Dáil, I flagged at that stage that it was our view that the Organisation of Working Time Act was not the optimal legislative route, but that the optimal legislative route was to take existing legislation, such as the Parental Leave Act, which is defined to bring forward specific leaves such as domestic violence leave and force majeure leave. That route for the specific leaves that have been introduced has been to bring in a specific legislative device, rather than to rely on the Organisation of Working Time Act, which is essentially about implementing the European working time directive in Irish law.

Chairman

Deputy O'Reilly has indicated that she wants to come back in.

Deputy Louise O'Reilly

That answers my question. There will be two tiers of staff and it will be a bit upstairs-downstairs in the public service after the enactment. Deputy Sherlock referred to a list of reasons a person might be availing of this leave. This is something I want to put to bed and I am assuming that the Minister will be in a position to do that today. The reasons they might be availing of this leave could include seeking legal advice or going to a doctor. I am assuming the reason will not have to be notified to an employer; simply that the leave is being taken. Will the reason for the leave have to be notified as well?

Deputy Roderic O'Gorman

It will be just that the leave is to be taken.

Deputy Louise O'Reilly

It will be just that the leave is to be taken. Can I ask about the list, which I do not have in front of me because I left it upstairs? Is it the case that the list that contains the reasons is a non-exhaustive list, that it is just an example and that it is not intended to be for any of these reasons?

Deputy Roderic O'Gorman

Yes.

Deputy Louise O'Reilly

That is okay. With regard to the normal daily rate of pay, and this is something we had considered at the Committee on Enterprise, Trade and Employment, the question is always about whether premiums are included and about what constitutes a normal rate of pay. I am assuming it will be similar to how one would calculate a bank holiday entitlement, which is on a pro rata basis, and that it would encompass one’s actual pay. For many people, particularly those who work shift work, who are in low pay and who are predominately women, their wages are made slightly more decent by shift premiums, overtime etc. If these factors are not included in it, it will not represent a normal daily rate of pay. I raise this point to put it into the Minister’s mind because people need to be able to access it and not to have to suffer because of it.

To go back to the issue of the ten days, with respect, the Minister has not advanced a good reason as to why that was cut in half.

My understanding is it was Government policy when it was applied to the public service. There will now be two tiers in the public service in relation to a piece of leave, which is something I am not aware of, although I represented public servants for a long time. There was a move by the Government before last to standardise all leave across the civil and public service. The Minister probably remembers this as he was in the public service at the time. We were told individual arrangements could not pertain, that there had to be a standardisation and that was the only fair way to do it. This is a step away from that. That is regrettable.

The Chair was good enough to have me at the committee when we had representatives from trade unions here and they talked about negotiating ten days already with employers. That is known to be the norm. That was opted for in the university sector. It is regrettable that a period of five days was chosen. It is half what the sector and others say is the norm.

Chairman

I call Deputy Sherlock.

Deputy Sean Sherlock

I was going to speak to the generality of section 6 but am happy to come back in if other members want to stay on the points being raised.

Chairman

Okay. I call Deputy Murnane O'Connor.

Deputy Jennifer Murnane O'Connor

I ask the Minister about communication and information to the employers. How much communication have the Department and Minister had with them? I was at the last meeting as well and there was confusion about the five-day leave for the year and the ten-day leave for the year. It is important that we engage with everybody. What was the feeling from the employer? Who has the Minister spoken to within the Department? We met people at this committee about three or four weeks ago. They said they had been speaking to different groups and businesses. There was confusion about that. What has been the Department's and Minister's take on this?

Chairman

Does Deputy Sherlock want to comment now? I might go to the Minister to conclude then.

Deputy Sean Sherlock

On section 6, we put forward an amendment, which was ruled out of order, in respect of the right of an employee to seek leave without pay - it is important to stress it was without pay - from his or her employment for the purposes of obtaining services around reproductive health. We were prescriptive about it being where an employee has miscarried a child having a gestational age of 28 weeks or less or in order to receive treatment from a registered medical practitioner in the State in relation to pregnancy, childbirth or assisted human reproduction. I received a letter from the Chair stating that amendment No. 7 could impose a charge on the revenue and must be ruled out of order in accordance with Standing Order 212(3).

Chairman

I have to send those letters.

Deputy Sean Sherlock

Let us for the public record state that, absolutely, Chairs within the Houses of the Oireachtas find themselves in the invidious position of having to sign off on these letters when somebody somewhere deems committee amendments are disallowed because there is a charge on the Exchequer. As proposer of the amendment, nobody comes to me to say they think the amendment will impose such a charge. I cannot for the life of me see why the Labour Party amendment should be disallowed. We clearly state the entitlement is leave without pay. How could that impose a charge on the Exchequer? It cuts out a raft of debate on meaningful issues on a range of legislative proposals put forward by the Government and the Opposition. That is a philosophical point, one could argue, but I would have thought an amendment of this nature would be pertinent to the Bill. The name of the Bill is the Work Life Balance and Miscellaneous Provisions Bill 2022 and we merely sought to put in place something that would speak to thousands of women. There is an attitudinal issue, whether we like it or not, regarding reproductive health-related leave where women encounter massive opposition from a small minority of employers. I know of women who used 90% of their annual leave for IVF treatment. I know of women who described their humiliation when they sought unpaid leave after a miscarriage and were turned down by an employer who said miscarriage is common and most people just get on with it. If we can find a mechanism to legislate for that under the ambit of this legislation, we would support that, but I cannot for the life of me see why our amendment was disallowed. I appreciate what the Chair is going to say.

Chairman

There is a small note as to why it was ruled out of order. It said it would result in costs to the Exchequer in the form of replacement costs for staff in the civil and public service, particularly in the health and education sectors. That is why, in accordance with Standing Order 212(3), it had to be ruled out.

As it is ruled out of order, technically the Minister does not have to respond. In general, in this committee he has always been fair to us. Does he want to comment in general on that? I cannot imagine it is an issue he would oppose. We have to be fair in the sense that there are notes provided on amendments and it is not one that was expected to come up for discussion. He may wish to make a general comment on it.

Deputy Sean Sherlock

I appreciate that and thank the Chair for her latitude. Is it not an awful indictment that we receive that answer? It is an indictment of the system we operate in this country.

Deputy Louise O'Reilly

Unless it is confirmation from the Minister and Government that every person who takes unpaid leave for any reason is in fact replaced in the civil and public service. They are not.

Deputy Sean Sherlock

It is not the case.

Deputy Louise O'Reilly

They are really not. Anyone who deals with the public service, as the Minister does, knows they are not. It is not a matter of routine that they are replaced.

Deputy Sean Sherlock

That is a fair point.

Deputy Roderic O'Gorman

Just as the Chair had to write that letter, I did not make this ruling. It was made by the Bills committee. I saw this when it was circulated, at the same time as committee members.

To speak to Deputy Sherlock's point, my Department has commissioned a piece of work on pregnancy loss in the workplace. That is a subset of the wider piece the Deputy is speaking to. It has been commissioned with UCC to examine the workplace experiences of people who have experienced pregnancy loss. It will focus on the loss of pregnancy prior to 24 weeks. For a pregnancy loss after 24 weeks, the relevant maternity and paternity leave entitlements kick in. It is taking place in three phases, namely, a scoping study, a qualitative and quantitative research piece and a final output piece. We have commissioned it so there will be a plain English element to that. That might be something the Deputy and I can touch base on as we go forward.

On Deputy O'Reilly's comment on the daily rate, the regulations are not drafted yet but I will bear in mind what she is saying. We will consider that in terms of the response.

On communications and the work around this Bill, as Deputy Murnane O'Connor knows, we put out a report at the same time as the Bill to summarise the work we have done. We got submissions from the HSE, the Departments of Agriculture, Food and the Marine and Social Protection, Chambers Ireland, Cairde, Acts of Compassion, Balbriggan Women's Development Group, Gay Health Network, IBEC, ICTU, Nasc, Safe Ireland and Women's Aid. They made written submissions and either I or officials then had a round of engagements.

It was during Covid so they were all online. I met representatives of the Financial Services Union, ICTU, IBEC, Chambers Ireland and ISME. My officials met the monitoring committee for the second national strategy on domestic, sexual and gender-based violence. I believe I met ISME, ICTU, Chambers Ireland and IBEC twice. There was, therefore, significant engagement throughout this process and there are differing views about the right balance to strike.

In terms of the first step being taken by Ireland, we have taken an important step and I believe five days is a good starting point. All of the trade unions that I have spoken to, and the NGOs working in this sector, have welcomed the introduction of paid domestic violence leave, recognising that we have the opportunity built into the legislation to review it in two years. Whoever is sitting in these chairs in two years' time will have the opportunity to discuss the Bill and whether to extend the leave available and change some of its parameters.

It is important to remember that we are one of the first European countries to bring in paid domestic violence leave. Once this legislation is passed, we can look at the legislation with a small degree of pride, while recognising the huge amount of other work we need to do on domestic, sexual and gender-based violence in our society.

Deputy Jennifer Murnane O'Connor

It is important that the Minister gave that information.

Amendment agreed to.

SECTION 6

Chairman

Amendment No. 7 has been ruled out of order.

Amendment No. 7 not moved.

Deputy Roderic O'Gorman

I move amendment No. 8:

In page 8, line 13, to delete “employee; or” and substitute “employee;”.

Amendment agreed to.

Chairman

Amendments Nos. 9 to 11, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Deputy Holly Cairns

I move amendment No. 9:

In page 8, line 22, to delete “12 years” and substitute “18 years”.

The three amendments in the group deal with the definition of a child in the Bill. The Government has proposed that flexible working arrangements to care for one's child can only be made up to the age of 12 years, or 16 years in the case of a child with a disability or a long-term illness. I am not sure about the origins of these arbitrary age limits but the reality is that parents will have to care for their adolescent children and I propose that the law recognise that.

Deputy Roderic O'Gorman

I understand the Deputy intends to amend the age limits for a child to which the entitlement for leave for medical care purposes applies and to request the flexible working arrangement. The age limits for relevant parents to request a flexible working arrangement for care purposes are aligned with the age limits for the existing parental leave. The leave can be taken before the child's 12th birthday, or 16th birthday if the child has a disability or long-term illness or the arrangements can be put in place up until the child's 12th birthday, or 16th birthday in the case of disability. The directive referred to the age of eight years as the limit for a child, so we have gone beyond that limit.

In addition, under the Bill, a relevant person can also qualify to request a flexible working arrangement where he or she provides personal care and support to his or her child for a serious medical reason. This is regardless of the age of the child and it may also be an adult child. In all those circumstances, the employer may extend the flexible working arrangement beyond the age provided for.

As the entitlements provided for under the Bill would apply to a child of any age where there is a need, I do not see a particular benefit that can be gained from this set of amendments.

Deputy Holly Cairns

I reiterate that people will still have to care for their adolescent children. I will press the amendment.

Deputy Sean Sherlock

Are these not premature cut-off points given the nature of society and that children have to be looked after into their teenage years as well? The numbers used are quite arbitrary.

Deputy Roderic O'Gorman

The directive very much focuses on young children and stipulates the age of eight years as a minimum point. Rather than rely on the directive, we decided to look at how existing types of leave are provided. Parental leave provides that a significant amount of unpaid leave can be taken up until a child has reached 12 years. We felt that 12 years was a suitable level at which to set the ability to claim these types of leave. Notwithstanding that where a child has a disability or a parent or parents are carers for the child, if that child is aged between 13 and 18 years or, indeed, is an adult, the provisions can also be sought.

Deputy Sean Sherlock

Is it possible to include those ages as part of the two-year review? It would be great to hear from the Minister after two years how that period had worked. The present Minister may be in situ in two years' time or it may be his successor. I would not mind having an opportunity to look back at this legislation in two years' time to see how this provision worked in real terms.

Deputy Roderic O'Gorman

We can consider that on Report Stage. It is important that we get this legislation passed rapidly but I will consider the Deputy's suggestion.

Chairman

Does Deputy Cairns wish to make a few more comments?

Deputy Holly Cairns

No, I will discuss the point the Minister made about disability when I move a later amendment.

Amendment put and declared lost.

Deputy Holly Cairns

I move amendment No. 10:

In page 8, line 26, to delete “12 years” and substitute “18 years”.

Amendment put and declared lost.

Deputy Holly Cairns

I move amendment No. 11:

In page 8, line 31, to delete “16 years” and substitute “18 years”.

Amendment put and declared lost.

Deputy Holly Cairns

I move amendment No. 12:

In page 8, to delete lines 32 and 33, and substitute the following:

“(ii) has recovered from that long-term illness or any other long-term illness,”.

The amendment deals with the unusual wording that flexible working arrangements will end when the child "ceases to have that disability or long-term illness or any other disability or long-term illness". Unfortunately, this wording reflects the antiquated medicalised model of disability, which is something that has no place in legislation in 2022, not to mention in legislation proposed by the Department for Children, Equality, Disability, Integration and Youth. The amendment simply proposes that the words "ceases to have" be replaced with the words "has recovered from", which acknowledges the lived reality of disability and long-term illness. The child may medically no longer have a condition but the effects and need for care may remain for some time afterwards. I also ask the Minister to clarify what categories or types of disabilities a child can "cease to have".

Deputy Roderic O'Gorman

This Bill uses the language of the Parental Leave Act. The amendment seeks to replace the words "ceases to have that disability or long-term illness or any other disability or long-term illness". The Bill includes a reference to "disability" and "long-term illness", whereas the language the Deputy seeks to substitute refers only to recovering from "long-term illness" and does not refer to disability. Was it the Deputy's intention to exclude "disability"?

Deputy Holly Cairns

My amendment seeks to replace the words "ceases to have" with the words "has recovered from" because one can recover from something and not cease to have a disability. Will the Minister indicate what kind of disability someone would cease to have?

Deputy Roderic O'Gorman

The amendment only refers to recovery from "long-term illness or any other long-term illness” whereas the provision the Deputy seeks to delete refers to "disability or long-term illness".

Deputy Holly Cairns

The amendment states: "has recovered from that long-term illness or any other long-term illness” but should include the word "disability". My amendment simply proposes that the words "ceases to have" be replaced with the words "has recovered from".

I can understand if that is in the Parental Leave Act or whatever, and why it might be taken from there, but it is that kind of medicalised approach to disability. It is only a small change. What kind of disability would a child cease to have, for example?

Deputy Roderic O'Gorman

I am not clear if the Deputy is deliberately leaving out disability in terms of the amendment that she is bringing forward. The Deputy's substitute language only refers to "long-term illness". The existing legislation that we are dealing with categorised "disability" and "long-term illness". I am wondering if the Deputy is leaving disability out.

Deputy Holly Cairns

No, sorry. To include "disability" and to change "ceases to have" with-----

Deputy Roderic O'Gorman

Recovered?

Deputy Holly Cairns

Yes, "has recovered from".

Deputy Roderic O'Gorman

I can look at that. In terms of the medicalised model, we have seen much more egregious language in legislation. I can look at "ceases to have" and "has recovered from".

Deputy Holly Cairns

I thank the Minister.

Chairman

Is the amendment being withdrawn?

Deputy Holly Cairns

How does that work?

Chairman

It can come back on Report Stage. It has been discussed.

Deputy Holly Cairns

Perfect. I will withdraw it then.

Amendment, by leave, withdrawn.

Deputy Mark Ward

I move amendment No. 13:

In page 8, to delete lines 35 to 37.

I thought this amendment would have been grouped with amendments Nos. 1 and 14, but it was not.

It is similar to the amendments earlier in relation to the removal of the six months' employment eligibility criteria. As I said already, it is our view that this will negatively impact on lone parents who may be in need of flexibility in order to take up a job in the first place, and also those returning to work following their period out of the labour market for care. These are more likely to be women, and workers on temporary contracts who also are more likely to be women.

I expect the Minister's answer will be similar to what he stated in response to amendments Nos. 1 and 14.

Deputy Sean Sherlock

I only want to speak to the Minister's own language where he states, in section 13B(4), "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." If I was to look at that from an employer's perspective, is the employer to adhere to the law, saying he or she cannot give the employee this flexible working arrangement because the six months have not elapsed?

Deputy Roderic O'Gorman

In response to the general set of amendments, section 13B(4) provides that a flexible working arrangement for caring purposes cannot commence before an employee has completed six months' continuous service with the employer concerned. Section 13B(5) provides for workers on temporary contracts that previous employment with the employer in the past six months is deemed as a continuous period of service for purposes of calculating the qualifying period.

Providing a minimum length of service of six months before an employee can commence a flexible working arrangement allows employers time to assess the plausibility and practicalities of a request from a new employee. An employer may, of course, waive this period.

The entitlement to many forms of 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 also requires a period of six weeks' continuous service. The directive also envisages a notice period for flexible working arrangements.

Leave cannot commence before six months but it is important to remember it can be applied for before the six-month period. As the Deputies will be aware, there is a process set out within the legislation whereby the employer is given a certain amount of time to consider the particular application. Whereas I have set criteria, in terms of 13 weeks on statutory sick leave and up to one year for parental leave, one can put in one's application for this leave in less than six months. What we are proposing here is within the range of pre-existing work with an employer.

Deputy Sean Sherlock

I think I understand the Minister. I suppose there may be circumstances in which a kindly employer may wish to be flexible towards his or her employee and within the six months, notwithstanding that the employee is temporary or whatever the employee's status is, there may be circumstances in which an employer would say that it is within the six months, he or she would like to give the leave to the employee but he or she has looked at the legislation and it states the employer cannot. The legislation is being prescriptive by my interpretation.

Maybe I am wrong in my interpretation. Perhaps it could be looked at again. If it is overly prescriptive and if there are circumstances where an employer wants to give an employee within the six months some flexibility, maybe there is scope to do that or else maybe I am misreading the entirety of the section.

Deputy Roderic O'Gorman

An employer can provide benefits to an employee outside of what is set out in statute. There is statutory annual leave and an employer can do more. Employers can be flexible. We spoke about that already in terms of many employers dealing flexibly when they arrive at a circumstance where an employee is already a victim of, for example, domestic violence. This is a floor in terms of a statutory right.

Deputy Sean Sherlock

I might come back to it on Report Stage. We might tease it out further, if that is okay.

Deputy Mark Ward

I think we should tease it out further as well.

Chairman

How stands amendment No. 13? Is it being pressed?

Deputy Mark Ward

It is being pressed.

Deputy Sean Sherlock

I will press it too.

Amendment put and declared lost.

Deputy Mark Ward

I move amendment No. 14:

In page 9, line 2, to delete “26 weeks” and substitute “one week”.

Amendment put and declared lost.

Deputy Holly Cairns

I move amendment No. 15:

In page 9, lines 22 to 25, to delete all words from and including “in”, where it firstly occurs, in line 22, down to and including “(b)”.

Amendment put and declared lost.

Deputy Holly Cairns

I move amendment No. 16:

In page 9, lines 29 to 31, to delete all words from and including “, and” in line 29, down to and including “concerned”.

Amendment put and declared lost.

Deputy Mark Ward

I move amendment No. 17:

In page 9, lines 29 to 31, to delete all words from and including “, and” in line 29, down to and including “concerned”.

Amendment put and declared lost.

Deputy Holly Cairns

I move amendment No. 18:

In page 11, lines 4 and 5, to delete all words from and including “or” in line 4, down to and including “matters” in line 5.

The Bill gives employers an ill-defined and ambiguous reason to deny flexible working arrangements because of "any other relevant matters". The pre-legislative scrutiny report called for the removal of any such clause and my amendment gives effect to our recommendation.

Deputy Roderic O'Gorman

Section 13D(1) closely follows the existing provisions of the Parental Leave Act 1998. It tries to cover the wide scope of employment types that exist and any other relevant grounds for postponement that may arise that have not been provided for in the section. The directive is clear that there is a need to balance the needs of workers with those of employers in relation to flexible working arrangements for caring purposes. The Bill provides that where a request is postponed, the employer must give reasons in writing as set out in the directive and recourse to the employee where that has not happened. I do not believe this section should be deleted.

Amendment put and declared lost.

Deputy Mark Ward

I move amendment No. 19:

In page 11, to delete lines 6 to 9, and substitute the following:

“request a review of the start date of the flexible working arrangement which may be agreed upon by the employee.”.

This amendment seeks to stop the provision or power that allows an employer to push the start date of an agreed flexible working arrangement out by up to six months. Allowing employers the power to change a start date solely based on their business needs is completely counterproductive to the spirit of this legislation.

Deputy Roderic O'Gorman

Section 13D(1) mirrors the provisions of the Parental Leave Act 1998, again looking to cover the scope of employment types that exist and any other relevant grounds for postponements that may arise and that have not already been provided for. When read with the other subsections, it is clear an employer cannot postpone the commencement of a flexible working arrangement without first consulting the employee in respect of the postponement, as is set out in section 13D(3), and setting out the grounds for the postponement in writing, as is provided for in section 13D(2). Notably, an employer cannot postpone the commencement of a flexible working arrangement where the agreement under section 13C(1)(a) has been already signed by the parties. The directive is clear regarding the need to balance the needs of workers with those of employers in respect of flexible working arrangements for caring purposes and the Bill looks to strike that balance.

Amendment put and declared lost.

Deputy Holly Cairns

I move amendment No. 20:

In page 13, line 6, to delete “reasonable grounds for believing” and substitute “clear evidence”.

This amendment is similar to amendment No. 18. Section 13G(2) allows an employer to terminate flexible working arrangements if they have "reasonable grounds for believing" that the employee is not using it for the approved circumstances. "Reasonable grounds for believing" is another ambiguous and subjective term and I am suggesting its replacement with "clear evidence".

Deputy Roderic O'Gorman

The language is section 13G is similar to that in the model Act, the Parental Leave Act 1998. The provision in respect of abuse is similar. It has seemed to work reasonably well to protect against the potential abuse of the Parental Leave Act. It is appropriate that we continue to use language that has been used successfully unless it is proven that the language has been difficult and I am not aware that has shown to be the case.

When read with the other subsections, it is clear that an employer who has reasonable grounds for believing an employee on improved flexible working arrangements for caring purposes is not using the arrangement for the purposes for which it was approved, must, before issuing a notice terminating the arrangement, undertake a number of steps. The employer must give notice in writing to the employee of the intention to terminate the arrangement. That initial notice must contain a statement in summary form of the grounds for terminating the flexible working arrangement concerned and provide the employee with a period of time, seven days in this case, to make representation to the employer in respect of the proposed termination. Those representations must be considered by the employer before he or she decides whether to give formal notice under section 13G(2) to the employee. There is a purpose there. This language has been used in the past. I do not think we should accept this amendment.

Deputy Holly Cairns

"Reasonable grounds" is ambiguous and "clear evidence" would be stronger language. I will leave it at that.

Amendment put and declared lost.

Section 6, as amended, agreed to.

NEW SECTION

Deputy Roderic O'Gorman

I move amendment No. 21:

In page 13, between lines 33 and 34, to insert the following:

“Amendment of section 14 of Principal Act

7. Section 14 of the Principal Act is amended—

(a) in subsection (2), by the substitution of ‘, force majeure leave, leave for medical care purposes and domestic violence leave’ for ‘and force majeure leave’,

(b) in subsection (5), by the substitution of ‘, parental leave, leave for medical care purposes and domestic violence leave’ for ‘and parental leave’, and

(c) by the insertion of the following subsections after subsection (5):

“(6) Where—

(a) an employee who is on probation in his or her employment, is undergoing training in relation to that employment or is employed under a contract of apprenticeship, takes leave for medical care purposes or domestic violence leave, and

(b) his or her employer considers that the employee’s absence from employment while on leave for medical care purposes or domestic violence leave would not be consistent with the continuance of the probation, training or apprenticeship, the employer may require that the probation, training or apprenticeship be suspended during the period of the leave for medical care purposes or domestic violence leave and be completed by the employee at the end of that period.

(7) An employee shall, while on leave for medical care purposes or domestic violence leave, be regarded for all purposes relating to his or her employment as still working in the employment concerned and none of his or her rights relating to the employment shall be affected by the leave.

(8) Absence from employment while on leave for medical care purposes or domestic violence leave shall not be treated as part of any other leave from employment (including parental leave, sick leave, annual leave, adoptive leave, maternity leave and force majeure leave) to which the employee concerned is entitled.”.”.

Amendment agreed to.

Section 7 deleted.

SECTION 8

Deputy Roderic O'Gorman

I move amendment No. 22:

In page 14, lines 24 and 25, to delete “force majeure leave or leave for medical care purposes,” and substitute “force majeure leave, leave for medical care purposes or domestic violence leave,”.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 23:

In page 15, line 6, to delete “force majeure leave or leave for medical care purposes” and substitute “force majeure leave, leave for medical care purposes or domestic violence leave”.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 24:

In page 15, line 14, to delete “force majeure leave or leave for medical care purposes” and substitute “force majeure leave, leave for medical care purposes or domestic violence leave”.

Amendment agreed to.

Section 8, as amended, agreed to.

Deputy Sean Sherlock

Before we move on to section 9, can we go backwards for one second?

Chairman

That depends on why the Deputy wants to go backwards.

Deputy Sean Sherlock

In respect of the insertion of a new section 7, there is reference to leave for medical care purposes. A question arises as to what constitutes medical care purposes. Perhaps the Minister could come back with a more detailed explanation in that regard. How liberal or strident is that interpretation? That was all I wanted to say. The Chair was moving proficiently through the Bill.

Chairman

Is the Deputy looking for more information to be available on Report Stage or does he wish the Minister to comment now?

Deputy Sean Sherlock

I am at the disposal of the Chair.

Chairman

The Deputy is asking what is meant by "medical care purposes".

Deputy Sean Sherlock

The definition of leave for medical care purposes is unclear in my mind. How liberally will that be applied?

Chairman

I am not sure if anything can be added at this stage. Has the Minister a comment or does he want to come back to it on Report Stage? The Minister could come back to the committee with a list or-----

Deputy Roderic O'Gorman

I have such a thing but not off the top of my head. Perhaps we could come back to the Deputy on that point.

Chairman

That would be perfect.

Deputy Roderic O'Gorman

Perhaps even by the end of the session we could comment on that matter.

SECTION 9

Deputy Roderic O'Gorman

I move amendment No. 25:

In page 15, line 25, to delete “or leave for medical care purposes” and substitute “, leave for medical care purposes, domestic violence leave”.

Amendment agreed to.

Section 9, as amended, agreed to.

Sections 10 and 11 agreed to.

SECTION 12

Deputy Roderic O'Gorman

I move amendment No. 26:

In page 16, line 21, after “purposes” to insert “, domestic violence leave”.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 27:

In page 16, line 25, after “purposes” to insert “, domestic violence leave”.

Amendment agreed to.

Section 12, as amended, agreed to.

SECTION 13

Chairman

Amendments Nos. 28, 29, 31, 32 and 40 to 42, inclusive, are related and will be discussed together.

Deputy Roderic O'Gorman

I move amendment No. 28:

In page 17, line 2, after “purposes” to insert “, domestic violence leave”.

This amendment and the others in the group propose to extend the consequential amendments required to Schedule 3 of the Redundancy Payments Act 1967 to section 6 of the Unfair Dismissals Act 1977 and to sections 15 and 16 of the Organisation of Working Time Act 1997, provided for in the Bill as initiated, which provide for the new leave for medical care purposes to also include domestic violence leave.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 29:

In page 17, line 3, after “or”,” to insert “and”.

Amendment agreed to.

Chairman

Amendment No. 30 has been ruled out of order as involving a potential charge to the Revenue.

Amendment No. 30 not moved.

Deputy Roderic O'Gorman

I move amendment No. 31:

In page 17, line 6, after “purposes” to insert “, domestic violence leave”.

Amendment agreed to.

Section 13, as amended, agreed to.

SECTION 14

Deputy Roderic O'Gorman

I move amendment No. 32:

In page 17, line 10, after “purposes” to insert “, domestic violence leave”.

Amendment agreed to.

Chairman

Amendment No. 33 is ruled out of order as it would involve a potential charge on revenue.

Amendment No. 33 not moved.

Section 14, as amended, agreed to.

SECTION 15

Deputy Roderic O'Gorman

I move amendment No. 34:

In page 17, line 20, after “7(2),” to insert “and”.

Amendment agreed to.

Section 15, as amended, agreed to.

SECTION 16

Deputy Roderic O'Gorman

I move amendment No. 35:

In page 17, line 28, after “ “permit”,” to insert “and”.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 36:

In page 18, line 1, after “occurs,” to insert “and”.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 37:

In page 18, line 2, after “ “she”,” to insert “and”.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 38:

In page 18, line 4, after “occurs,” to insert “and”.

Amendment agreed to.

Section 16, as amended, agreed to.

SECTION 17

Chairman

Amendment No. 39 has been ruled out of order.

Amendment No. 39 not moved.

Deputy Roderic O'Gorman

I move amendment No. 40:

In page 18, line 8, after “purposes” to insert “, domestic violence leave”.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 41:

In page 18, line 10, after “leave”,” to insert “and”.

Amendment agreed to.

Deputy Roderic O'Gorman

I move amendment No. 42:

In page 18, line 11, after “purposes” to insert “, domestic violence leave”.

Amendment agreed to.

Section 17, as amended, agreed to.

NEW SECTION

Chairman

Amendments Nos. 43 and 46 are related and may be discussed together.

Deputy Roderic O'Gorman

I move amendment No. 43:

In page 18, between lines 13 and 14, to insert the following:

“Amendment of National Minimum Wage Act 2000

18. The National Minimum Wage Act 2000 is amended in section 8(2)(ii) by the insertion of “leave for medical care purposes, domestic violence leave,” after “parental leave,”.”.

These amendments propose to amend section 8(2)(ii) of the National Minimum Wage Act 2000 to provide for new leave for medical care purposes and domestic violence leave. They are also intended to amend the Long Title of the Bill as initiated by the addition of the words "The National Minimum Wage Act 2000" to accommodate this amendment to the Bill.

Amendment agreed to.

SECTION 18

Deputy Roderic O'Gorman

I move amendment No. 44:

In page 18, line 21, after “1994;”,” to insert “and”.

Amendment agreed to.

Chairman

Amendment No. 45 has been ruled out of order.

Amendment No. 45 not moved.

Section 18, as amended, agreed to.

Section 19 agreed to.

TITLE

Deputy Roderic O'Gorman

I move amendment No. 46:

In page 3, line 13, after “1997” to insert “, the National Minimum Wage Act 2000”.

Amendment agreed to.

Title, as amended, agreed to.

Chairman

Pursuant to Standing Order 187(3), the clerk to the committee will report to the Dáil that the committee has amended the Title. Is that agreed? Agreed.

Bill reported with amendments.

Chairman

That all went fairly smoothly. Does the Minister wish to make any closing comments?

Deputy Roderic O'Gorman

On Deputy Sherlock's point regarding leave for medical care purposes, that is defined in section 5(2)(b), which states, "is in need of significant care or support for a serious medical reason." We relied on what is in the directive and that is what the directive says. We were also cognisant of other legislation in which there was an attempt to define things very rigidly. We steered away from that approach. We are using the language in the directive. We were concerned that to define it further risked narrowing an EU law provision. That is why we took that particular approach.

Deputy Sean Sherlock

Is that section 5(2)-----

Deputy Roderic O'Gorman

It is section 5(2)(b), which states, "is in need of significant care or support for a serious medical reason."

Chairman

I thank the Minister, especially since there were a few questions that were not entirely related to the Bill. We appreciate that he always accommodates the committee in that regard. I also thank the officials and all the members for being here. This committee deals with a significant amount of legislation and everyone is always very good in working to the deadlines. I thank members and our staff.