Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I move amendment No. 30:

In page 19, between lines 9 and 10, to insert the following:

“PART 3

REQUESTS FOR REMOTE WORKING ARRANGEMENTS

Interpretation (Part 3)

14.(1) In this Part— “Act of 1998” means the Parental Leave Act 1998;

“Act of 2015” means the Workplace Relations Act 2015;

“adjudication officer” means a person appointed under section 40 of the Act of 2015;

“approved remote working arrangement” means a remote working arrangement, the

request for which has been approved under section 21(1)(a);

“code of practice” means, in relation to a provision of this Part, any code of practice

for the time being standing approved in accordance with Part 4;

“Commission” means the Workplace Relations Commission;

“continuous employment” includes employment completed by an employee under 2 or

more continuous fixed-term contracts with the same employer;

“contract of employment” means, subject to subsection (2)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency (within the meaning of the Employment Agency Act 1971), and is acting in the course of that business, to do or perform personally any work or service for another person (whether or not that other person is a party to the contract);

“employee” means a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and includes a part-time employee and a fixed-term employee and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Part, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces or a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the head (within the meaning of the Freedom of Information Act 2014), of the public body (within the meaning aforesaid) in which he or she is employed and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), or of a harbour authority, the

Health Service Executive or a member of staff of an education and training board shall be deemed to be an employee employed by the authority, Executive or board, as the case may be;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer and includes, where appropriate, an associated employer of the employer;

“fixed-term employee” has the same meaning as it has in the Protection of Employees (Fixed-Term Work) Act 2003;

“Minister” means the Minister for Enterprise, Trade and Employment;

“part-time employee” has the same meaning as it has in the Protection of Employees (Part-Time Work) Act 2001;

“request for a remote working arrangement” means a request referred to in section 20(1);

“remote working arrangement” means an arrangement whereby some or all of the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment is provided at a location other than at the employer’s place of business without change to the employee’s ordinary working hours or duties; (2) For the purposes of this Part, 2 employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control and “associated employer” shall be construed accordingly.

Voidance or modification of certain provisions in agreements

15.(1) A provision in any agreement shall be void in so far as it purports to exclude or limit the application of any provision of this Part or is inconsistent with any provision of this Part.

(2) A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by this Part shall be deemed to be so modified as to be not less favourable.

(3) Nothing in this Part shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision in this Part.

(4) References in this section to an agreement are to any agreement, whether a contract of employment or not and whether made before or after the coming into operation of this section.

Regulations and orders

16.(1) The Minister may by regulations provide for any matter referred to in this Part or Part 4as prescribed or to be prescribed for the purposes of the regulations.

(2) Before making a regulation under this Part, the Minister shall consult with persons whom he or she considers to be representative of employers generally and persons whom he or she considers to be representative of employees generally in relation to the regulation.

(3) Without prejudice to any provision of this Act, a regulation under this Part may contain such consequential, supplementary and ancillary provisions as appear to the Minister to be necessary or expedient.

(4) Every regulation made under this Part shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Expenses

17.The expenses incurred by the Minister or the Minister for Children, Equality, Disability, Integration and Youth in the administration of this Part and Part 4 shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.

Right to request a remote working arrangement

18. (1) An employee may, in accordance with this Part, request approval from his or her employer for a remote working arrangement.

(2) An employee’s approved remote working arrangement shall not commence before a time when the employee concerned has completed 6 months continuous employment with the employer concerned.

(3) A request for a remote working arrangement referred to in subsection (1) shall— (a) be in writing and signed by the employee,

(b) specify the details of the remote working arrangement requested and the proposed date of commencement and, where applicable, expiration of the remote working arrangement,

(c) specify, having regard to the code of practice—

(i) the reasons why he or she is requesting approval of the remote working arrangement (in this Part referred to as “the employee’s needs”),

(ii) details of the proposed remote working location, and

(iii) information as may be specified in the code of practice on the suitability of the proposed remote working location,

and

(d) be submitted to his or her employer as soon as reasonably practicable but not later than 8 weeks before the proposed commencement of the remote working arrangement. (4) An employee who has submitted a request in accordance with subsection (3)to his or her employer shall, if the employer so requests, furnish to the employer such further information as the employer may reasonably require in relation to the request.

(5) Before the date on which an agreement referred to in section 21(1)(b)(i)is signed by the employer and the employee, the employee may, by notice in writing signed by him or her and given to the employer, withdraw a request submitted in accordance with subsection (3).

(6) For the purposes of this section, where an employee ceases to be the employee of an employer and, not more than 26 weeks after the date of cesser, the employee again becomes the employee of the employer, the period of service of that employee with that employer before the date of cesser shall be deemed to be continuous with the period of service of that employee with that employer after again becoming such employee.

Obligation on employer to consider request under section 20

19.(1) An employer who receives a request for a remote working arrangement submitted in accordance with section 20(3) shall— (a) consider that request, having regard to—

(i) his or her needs,

(ii) the employee’s needs, and

(iii) the requirements of the code of practice,

and

(b) as soon as reasonably practicable but, subject to subsection (2), not later than 4 weeks after receipt of the request—

(i) approve the request, which approval shall include an agreement prepared and signed by the employer and employee setting out—

(I) the details of the remote working arrangement, and

(II) the date of the commencement and the expiration, if any, of the remote working arrangement,

(ii) refuse a request, which refusal shall include a notice in writing informing of the reasons for the refusal, or

(iii) where subsection (2)applies, provide a notice in writing to the employee that the employer has extended the 4 week period under this subsection for a further period specified in the notice.

(2) Where an employer is having difficulty assessing the viability of the request for a remote working arrangement, the employer may extend the 4 week period referred to in subsection (1) by a further period not exceeding 8 weeks.

(3) When the agreement referred to in subsection (1)(b)(i) is signed by the employer and the employee, the employer shall retain the agreement and provide a copy of the agreement to the employee who shall retain it.

Termination in certain circumstances of remote working arrangement

20.(1) If, after the date on which an agreement referred to insection 21(1)(b)(i) is signed by the employer and the employee (whether or not the approved remote working arrangement to which it relates has commenced), the employer is satisfied that the remote working arrangement would have, or is having, a substantial adverse effect on the operation of his or her business, profession or occupation, by reason of— (a) seasonal variations in the volume of the work concerned,

(b) the unavailability of a person to carry out the duties of the employee in the employer’s place of business,

(c) the nature of the duties of the employee in the employment, or

(d) any other matters relevant to the substantial adverse effect on the operation of his or her business, profession or occupation, the employer may, having regard to his or her needs, the employee’s needs and the requirements of the code of practice, by notice in writing terminate the arrangement and the notice shall specify the day (being a day not later than the date of the end of the period of the arrangement specified in the agreement referred to insection 21(1) (b)(i), if any, nor, subject to the foregoing requirement, earlier than 4 weeks after the date of the receipt by the employee concerned of the notice) on which the employee must return to work.

(2) Where an approved remote working arrangement is terminated under subsection (1), the employee concern shall return to the employee’s original working arrangement on the day specified in the notice under that subsection.

(3) A notice under subsection (1) shall contain a statement in summary form of the grounds for terminating the remote working arrangement concerned.

(4) Where an employer proposes to give a notice under subsection (1)to an employee of his or hers, the employer shall, before giving the notice, give notice in writing of the proposal to the employee and the notice shall contain a statement in summary form of the grounds for terminating the remote working arrangement concerned and a statement that the employee may, within 7 days of the receipt of the notice, make representation to the employer in relation to the proposal, and any such representations made by an employee to an employer within the period aforesaid shall be considered by the employer before he or she decides whether to give a notice under subsection (1)to the employee.

(5) A person shall each retain a notice under this section given to him or her and a copy of a notice under this section given by him or her.

(6) Where a remote working arrangement is terminated under subsection (1), the agreement referred to in section 21(1)(b)(i)shall be deemed to be revoked accordingly.

Changes to remote working arrangements

21.If, after the date on which an agreement referred to in section 21(1)(b)(i)is signed by the employer and the employee (whether or not the approved remote working arrangement to which it relates has commenced), the employer and the employee so agree, in writing— (a) the remote working arrangement may be postponed to such time as may be agreed to,

(b) the period of the remote working arrangement, if any, may be curtailed in such manner and to such extent as may be agreed to, or

(c) the form of the remote working arrangement may be varied in such manner as may be agreed to, and in such a case the agreement referred to in section 21(1)(b)(i)shall be deemed to be amended accordingly.

Return to previous working arrangement

22.(1) After the date on which an agreement referred to in section 21(1)(b)(i)is signed and prior to the expiration of the employee’s approved remote working arrangement, if any, the employee may by notice in writing signed by him or her and given to the employer, request to return to the original working arrangements that he or she held immediately before the approval of the remote working arrangement.

(2) The notice referred to in subsection (1)shall set out the reasons for the return to the original working arrangements and the proposed date for the return.

(3) An employer who receives a request referred to insubsection (1)shall— (a) consider that request, having regard to his or her needs, the employee’s needs and the code of practice, and

(b) as soon as reasonably practicable but not later than 4 weeks after receipt of the request, by notice in writing, respond to the employee to inform him or her that—

(i) the request has been approved, or

(ii) the request has been refused and the reasons for the refusal.

(4) If the employer agrees to the early return to the original working arrangements but refuses to agree to the proposed date of return set out in the notice referred to in subsection (1), the response under subsection (3)(b)from the employer shall propose an alternative date for the return.

(5) On the expiration of the employee’s approved remote working arrangement, if any, the employee concerned shall be entitled to return to the original working arrangement that he or she held immediately before the approval of the remote working arrangement.

Abuse of remote working arrangement

23.(1) An approved remote working arrangement is subject to the condition that the employee continues to discharge all of their duties of employment in accordance with the agreement referred to in section 21(1)(b)(i).

(2) Where an employer has reasonable grounds for believing that an employee who is on an approved remote working arrangement is not discharging all of their duties of employment in accordance with the agreement referred to in section 21(1)(b)(i),the employer may, by notice in writing given to the employee, terminate the approved remote working arrangement and the notice shall contain a statement in summary form of the grounds for terminating the arrangement and shall specify the day (being a day not later than the date of the end of the period of the arrangement, if any, specified in the agreement referred to in section 21(1)(b)(i), nor, subject to the foregoing requirement, earlier than 7 days after the date of the receipt by the employee concerned of the notice) on which the employee must return to work.

(3) Where an approved remote working arrangement is terminated under subsection (2), the employee concerned shall return to the employee’s original working arrangement on the day specified in the notice under that subsection.

(4) Where an employer proposes to give a notice under subsection (2)to an employee, the employer shall, before giving the notice, give notice in writing of the proposal to the employee and the notice shall contain a statement in summary form of the grounds for terminating the remote working arrangement concerned and a statement that the employee may within 7 days of the receipt of the notice make representation to the employer in relation to the proposal, and any such representations made by an employee to an employer within the period aforesaid shall be considered by the employer before he or she decides whether to give a notice under subsection (2) to the employee.

(5) A person shall retain a notice under this section given to him or her and a copy of a notice under this section given by him or her.

Protection of employees from penalisation

24.(1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to make a request referred to in section 20(1) or 24(1).

(2) In this section, “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation. (3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of the penalisation both under this Part and under those Acts.

Decision under section 41 or 44 of Act of 2015

25. (1) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 21(1)may— (a) direct that the employer comply with paragraph (a) of section 21(1),

(b) direct that the employer comply with any of the requirements of paragraph (b) of section 21(1)as if the reference in that subsection to the date that is 4 weeks after the receipt of the employee’s request under section 20 was a reference to such date as may be specified in the direction,

(c) award compensation in favour of the employee concerned to be paid by the employer concerned, or

(d) specify both a direction referred to in paragraph (a) or (b), or both, and an award referred to in paragraph (c). (2) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 22 may award compensation in favour of the employee concerned to be paid by the employer concerned.

(3) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 24(3) may— (a) direct that the employer comply with paragraph (a) of section 24(3),

(b) direct that the employer comply with any of the requirements of paragraph (b) of

section 24(3) as if the reference in that subsection to the date that is 4 weeks after

the receipt of the employee’s request under section 24(1) was a reference to such

date as may be specified in the direction,

(c) award compensation in favour of the employee concerned to be paid by the

employer concerned, or

(d) specify both a direction referred to in paragraph (a) or (b), or both, and an award referred to in paragraph (c). (4) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first mentioned decision in relation to a dispute between an employee and his or her employer relating to the entitlements of the employee under this Part (other than sections 21, 22 and 24) may award compensation in favour of the employee concerned

to be paid by the employer concerned.

(5) An award of compensation referred to in subsections (1)(c), (2), (3)(c) or (4) shall be of such amount as the adjudication officer or the Labour Court, as the case may be, considers just and equitable having regard to all the circumstances but shall not exceed 4 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.

(6) In making a decision referred to in subsection (1), (2) or (3), an adjudication officer or the Labour Court, as the case may be, shall not assess the merits of— (a) the decision of the employer reached following his or her consideration under section 21(1)(a) of the employee’s request,

(b) the refusal by the employer under section 21(1)(b)(ii) or the reasons for such refusal given under that provision,

(c) the decision of the employer to terminate, under section 22, a remote working arrangement or the grounds given by the employer under that section for such termination,

(d) the refusal by the employer under section 24(3)(b)(ii) or the reasons for such refusal given under that provision, or

(e) the refusal by the employer under section 24(4) or the date proposed under that provision. (7) In this section, “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Records

26. (1) An employer shall make a record of approved remote working arrangements taken by each of his or her employees showing the period of employment of each employee and the dates and times upon which each employee was on an approved remote working arrangement.

(2) A record under this section shall be retained by the employer concerned for a period of 3 years.

(3) Notices, or copies of notices, required by this Part to be retained by a person shall be retained by the person for a period of one year.

(4) An employer who contravenes subsection (1) or subsection (2), shall be guilty of an offence and shall be liable on summary conviction to a class C fine.

(5) Proceedings for an offence under this section may be brought and prosecuted by the Minister.

Review of Part

27. The Minister shall, not earlier than one year and not later than 2 years after the commencement of this section, after consultation with the Minister for Children, Equality, Disability, Integration and Youth, the Commission, persons whom he or she considers to be representative of employers generally and persons whom he or she considers to be representative of employees generally, conduct a review of the operation of this Part and shall prepare a report in writing of the findings of the review and shall cause copies of the report to be laid before each House of the Oireachtas.”.

As I indicated on Committee Stage, amendment No. 30 is intended to introduce a right to request remote working for all employees. The right to request flexible working remains limited to parents and carers. This means that all requests for remote and flexible working will considered under one piece of integrated legislation simplifying the process for employers and employees, and reducing the administrative burden on employers. The application and decision process for both have also been harmonised insofar as possible. These amendments set out a framework for making a remote working request and employers are obliged to consider and respond to that request. The general scheme of the Right to Request Remote Work Bill provided 13 grounds for refusal as well as a general right to refuse on business grounds. Under these amendments, the enumerated grounds for refusal have been removed entirely and replaced with a requirement for employers to have regard to their needs and employee needs when considering requests for remote working. Employers will also be required to have regard to the code of practice which is to be established on a statutory footing and will provide practical guidance on how remote and flexible working requests should be treated.

A complaint to the Workplace Relations Commission, WRC, following a refusal is possible where an employer has not complied with the requirements of the Bill in considering the code of practice. This represents an enhanced right to complain when compared with the original Right to Request Remote Work Bill. The remote working Bill also included a statutory requirement for an employer to have a remote working policy. This requirement will not be included in the integrated Bill. Guidance to employers on remote working policy will instead be provided for in the code of practice.

Under the stand-alone Right to Request Remote Work Bill, it was a criminal offence not to have a remote working policy, this has not been included in these amendments. The service requirement in the stand-alone Bill before a request could be made was six months. Under the integrated Bill, it will be six months before remote working can commence. In effect, employees may commence remote working up to 12 weeks earlier than provided for under the original Bill.

These amendments also introduce new provisions originating from the Work Life Balance and Miscellaneous Provisions Bill 2022 to remote working requests that were not a feature of the original Right to Request Remote Work Bill. The most substantial of these are anti-abuse provisions which permits an employer to end the flexible working arrangement where the employee is not fulfilling their agreed duties. The amendments also include a provision which permits and employer to terminate the flexible or remote working arrangements where it would have, or is having, a substantial adverse effect on the operation of his or her business.

See this speech in context