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

The new section 13C to be inserted into the Parental Leave Act sets out the obligation on the employer to consider a request for flexible working and the process and time limits to be followed. The provision sets out that employers must consider their own needs and the employees' needs. I appreciate that the amendment seeks to add more detail to this point, but there is a risk that this might inadvertently limit the consideration to a narrow frame and disadvantage the employee in some way. Section 21 of the Bill deals with the employer’s obligation to consider a request for remote working arrangements, having regard to the employer’s needs, the employee’s needs and the requirements of the code of practice. In a similar manner to the proposed flexible working amendment, we would have a concern about limiting the scope of consideration as is proposed by amendment No. 53. It is important to note that with regard to the needs framing that the Senator talked about, in using that language, we are replicating the language of the directive that sets out needs framing. Ultimately, this section of the Bill is a transposition of EU law.

On perhaps the beauty of the language, I would share the Senator’s view. The flow is not as if we were drafting it from scratch. However, this is transposition. Certainly, in the Office of the Parliamentary Counsel, there is a strong view that in order to make sure that our transposition is correct, we are using that language of the directive. That section and the balancing section contained within the directive is an essential element in ensuring the employer’s needs, which is the term used in the directive, and the employee’s needs are appropriately balanced within the domestic legislation that is transposing the EU directive.

It is important and we need to take a step back in terms of the functioning of the legislation. The legislation strengthens the employee’s entitlement to consideration further than what was set out in the directive by the introduction of the statutory code of practice. That statutory code of practice was called for in the pre-legislative scrutiny process by the joint Oireachtas committee on the original right to request remote working Bill and that code of practice is now part of this Bill. The detail of the consideration of request will be set out in the code of practice, which will be worked through by the Workplace Relations Commission.

This language is being used because we are transposing and the advice we received is that it is important to rely on the language used in the directive. It is also for the practical application of the directive. There are strong protections for the rights of employees here through the innovation that we decided to implement, which is the statutory code of practice.