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

I thank Senators for their detailed consideration of and response to the draft Bill. I will do my best to address as many of the issues raised as possible. A wide range of issues were raised, many of which we can look at in more detail on Committee Stage.

I will begin by addressing the points made by Senator Keogan regarding the heads of the Bill that were published in the summer. In the heads of the Bill, we set out a range of objectives for this legislation, one of which was to ensure that where a trans person becomes pregnant, they can avail of maternity leave in the same way as anybody else and that goal continues to be achieved in this Bill. My concern is not with how we achieve the goal but with achieving it and we have done that. I am very happy to make changes to legislation when appropriate and have demonstrated that with many of the Bills that I have brought through this and the other House. I have listened and made changes. We have made changes in the terminology here which achieves the goal and hopefully assuages any concerns that Senator Keogan or others may have had.

It is also important, in the context of the earlier use of terms such as the erasure of women, to put on record my passion, as Minister with responsibility for equality, and that of this Government to protect and strengthen the position of women in the workforce and across Irish life. In that regard, I would draw attention to certain provisions in this legislation. Obviously, while the provisions for carers and parents are not solely directed towards women, as Senators Sherlock, Pauline O'Reilly and others said, it will primarily be women availing of those provisions. Again, the provisions on domestic, sexual and gender-based violence are not solely directed towards women but we know, to our shame, that the vast majority of victims of such violence are women.

The provisions on breastfeeding will benefit women returning to the workplace. Beyond this Bill, I would point to the work I have done on childcare, with massive investment to provide sustainability for childcare providers. Again, the providers of childcare are, for the most part, women. They are female entrepreneurs who have set up their own businesses. We have seen 73% of childcare staff get a pay increase and we know that 95% or 96% of them are women. I would also point to the work the Minister for Justice, Deputy McEntee, has done on the third national strategy on domestic, sexual and gender-based violence and on implementing the O'Malley report recommendations, not to mention the work done by the Minister for Health, Deputy Donnelly, on the women's health action plan and the introduction of free contraception for women. Senator Warfield also referred to the work being done by the Minister of State, Deputy Peter Burke, to ensure that female local authority members have access to maternity leave, which is a really important step. It is important to restate the work this Government has done and the work being done by my Department to protect and strengthen the role and position of women in society and in the workplace. Senator Sherlock spoke to the advances we have seen in terms of women's participation in the workforce, particularly with regard to full-time work. We want to see that continue, and this Bill is part of that work.Regarding Senator Currie's concern about the right to request flexible work remaining available to parents and carers, the right to request remote working is available to all workers. I share her concern about that distinction. That is why, when I agreed to the proposal by the Minister that we amalgamate these two Bills, he agreed to my proposal that we examine that difference after two years. There is a specific review provision built into the Bill to examine after two years whether to extend the right to request flexible work beyond parents and carers to broader categories. The Minister agreed with my proposal to put that in and that is something I welcome.

The Senator spoke about the implications for women of the difference in workforce. It is worth recognising that this is the first reporting period for the Gender Pay Gap Information Act, which we passed last year. We are soon going to see that information, which will be so valuable for the Government's and State's understanding of the gender pay gap and having a better understanding beyond the raw numbers. We know the numbers but it is about getting a deeper understanding of that with regard to employees, and primarily women, looking to target companies where they see a real effort is being made. There is also a requirement in the legislation that the companies themselves have to bring forward proposals for how they can start to bridge that gender pay gap. All of that will be kicking in following the publication of that information.

Regarding terminations, there is a provision for an employer to terminate remote working arrangements but there are protections for employees built into those provisions to make sure it is not an unbalanced process. The employer can only terminate under the "any other relevant matters" provision, if it is relevant to the substantial adverse effect on the operation of the business. Employers are required to consider the employee's needs when making a decision. They are also required to have regard to the code of practice when making a decision. The code of practice would provide guidance on the process. An employee may make a complaint to the WRC if they believe the employer has not fulfilled the obligations under that section. It is not just a raw or hefty right to terminate, as the Senator described it. There are procedural protections around that particular point.

Senator McGreehan and others spoke about the DSGBV leave. I think everyone welcomes that. As I said, we will be one of the first EU countries to introduce it. There has been discussion about the amount of time provided. Recognising that this is a brand new leave, and that it is paid leave so there is an obligation on employers, we decided to introduce the five days' paid leave now but also built in a review clause after two years. Normally we review legislation after a bit longer but we thought, with regard to both this issue and the previous one we discussed, that it would be important to review them quickly. After two years, we will review the paid DSGBV leave provisions with regard to their uptake and their adequacy.

Senator Sherlock spoke about the rate at which the leave will be paid. Again, that is something that can be looked at. As it currently stands, we are looking at parity with sick pay but that may change. We have to start this process somewhere. It is important to state that few other countries have paid DSGBV leave at a national level. Quite a few have unpaid leave but very few have paid leave. We are starting something new, novel and valuable and we have built in a mechanism to review it rapidly. Two years is enough time as it will let it go through two cycles but at the same time allow for changes to be made.

It is also important to remember that we did not just say we would bring in this paid leave. We are also doing a piece of work, led by officials in my Department, to develop template policies for employers, both around how they will implement paid domestic violence leave but also more generally on how they engage with employees who have been victims of DSGBV. That is a concrete and useful support to employers. When I engaged with the social partners, particularly on the employer side, they were nervous about this. Senator Seery Kearney raised the issue of GDPR. They were nervous about having the knowledge that one of their employees was a victim of DSGBV. I can understand that. We are looking to put in place policies that will help them in that regard. We made a call early on that we would not require proof to be brought forward to access this leave. Is an important step in making it easy for people and not forcing anyone to go through unnecessary hoops at a difficult time in their lives. Any information in any application for this leave will of course be governed by the well-known rules of GDPR in terms of what an employer can or cannot reveal. I hope the introduction of those policies will help address the concerns Senator McGreehan raised about women potentially feeling pressured not to take up that leave.

Senator Gavan mentioned that the Bill is implementing EU law. Part of it is but there are three significant elements that go beyond EU law obligations, namely, the introduction of the right to request remote working, the extension of breastfeeding breaks and the introduction of paid DSGBV leave. None of those are EU requirements. They are programme for Government commitments or, in the DSGBV leave situation, go beyond programme for Government commitments.

It is important to state that the five days of DSGBV leave are a statutory minimum. That will not impact in any way if an employer, be they in the private or public sector, decides to do more. A number have done so, in both the public and private sectors and I welcome that. Just as there are minimum rates of holiday leave set out in domestic legislation, that does not impact an employer giving more as a recruitment tool, nor will this.

Regarding the comparison with the UK legislation, the UK has only published draft legislation. It is just a response document and, therefore, it is a distance behind us. It is important to recognise that our Bill does not contain a ground for refusal of the right to request remote working, whereas the UK sets out eight explicit grounds under which an employer can refuse. We learned from the debate during pre-legislative scrutiny, when there were 13 reasons for refusal in the draft Bill and they were heavily criticised. In that way, our Bill shows an improvement to the approach adopted by the UK. Our legislation contains an explicit requirement that in making a decision on granting the right to remote working, the needs of the employee be considered. That does not exist in the UK legislation, nor are there any limits on the number of applications that can be made under our legislation, whereas the UK proposals contain a limit on the number of possible requests. Our legislation, which has now passed through one House and is before another, stands up strongly to that draft proposal, which as yet has a lot more meat to be put on its bones.

I have addressed a number of the points Senator Sherlock raised about the five days and the rate at which the payment will be made. With regard to appeals and engagement with the WRC, an employee can appeal the refusal to the WRC on the basis that the employer did not apply the statutory code of practice, which will be developed by the WRC and put on a statutory basis through a statutory instrument. That is a big change, following on from what was outlined during the pre-legislative scrutiny process around how the call would be made. It was decided that a code of practice would be developed by the WRC between employers and employees for how requests for both flexible and remote working would be adjudicated on. Where employees believe they were refused in breach of the code of practice, they can go to WRC. That allows the WRC to engage in a somewhat substantive analysis of what is happening. A range of redress options is set out, including a direction by the WRC or the Labour Court to an employer to fulfil their obligations, or compensation of up to four weeks' remuneration, to be paid by the employer.

Senator Seery Kearney asked about the term "significant" with regard to medical issues and the definition of "leave for medical care purposes".We are relying on that term, as used in the directive. We considered broadening it out and providing more definitions but, inasmuch as the Tánaiste was criticised for going into more detail when he set out a range of reasons to refuse a right to request remote working, we felt using the language of the directive was the right way to go. If we seek to overly define the term, we risk narrowing the availability of this leave.

Policies will be put in place on how DSGBV leave will be applied. That will strengthen and, I hope, address concerns around GDPR and the retention of information.

This important legislation brings us into compliance with a key EU directive and advances the position of employees generally, and female employees in particular, in the workplace. It works to support the return of female employees following maternity leave and seeks to protect some of the most vulnerable people in the State, namely, victims of domestic violence, and ensure they too can be supported in the workplace. It is positive legislation that is designed in a way that recognises the cutting-edge nature of some of the protections being provided and allows them to be re-examined within a reasonably tight timeframe. This will allow us to go even further or make changes to ensure these new rights can be as effective and widely available as possible.

I look forward to hearing from Senators regarding potential amendments on Committee Stage. I thank the House for its consideration of the Bill.