Roderic O'Gorman (Dublin West, Green Party)
Link to this: Individually | In context | Oireachtas source

I am pleased to address the House on Second Stage of the Work Life Balance and Miscellaneous Provisions Bill. The primary purpose of this Bill is to ensure that Ireland has fully transposed Articles 6 and 9 of the EU Work-life Balance Directive, which are the final elements not already compatible with Irish law. The Bill also fulfils an important and long-standing commitment to extend the entitlement to breastfeeding breaks under the Maternity Protection Acts. With this extension, women returning to work after having a baby will be entitled to these breaks for two years after the birth of the child, raising that period from six months, as is the current situation. Breastfeeding numbers in Ireland remain low, particularly for extended breastfeeding. These breaks make combining the return to work and breastfeeding that bit easier and also normalise something which still can have a stigma attached to it.

On Committee Stage in the Dáil, amendments were added to this Bill which will introduce five days' paid domestic violence leave. Addressing domestic, sexual and gender-based violence has always been a priority of mine, and I am pleased to be able to bring forward these legislative amendments which will mean that Ireland will now become one of the first countries in Europe to introduce a right to paid leave for victims of domestic violence.On Report Stage, further amendments were tabled to incorporate a right to request remote working for all employees, following a Government decision to bring forward the provisions of the Tánaiste's right to request remote working Bill as part of this Bill.

I will now outline the main provisions of the Bill. Part 1 is a standard provision. Part 2 provides for the measures to transpose the EU work-life balance directive and provide for domestic violence leave. Section 6 inserts a new section 13A into the Parental Leave Act to provide for leave for medical care purposes. This new form of leave matches the provisions of Article 6 of the work-life balance directive on carer's leave. The Carer's Leave Act 2001 already provides for a form of leave for those with caring responsibilities but for a more extended period. In order to meet the requirements of the directive for a form of leave that can be taken flexibly, and without a notice period, it was necessary to introduce leave for medical care purposes. Under these provisions, up to five days' leave can be taken in any 12-month period and it can be taken in individual days or consecutively. The leave is available to care for a child for whom the employee is a relevant parent under the Parental Leave Act and also to care for a spouse, civil partner or cohabitant, parent or grandparent, brother or sister or a person who resides in the same household. The leave is unpaid and in order to provide the necessary flexibility required under the directive it is not possible to provide a social protection benefit.

Section 7 inserts a new section 13AA into the Parental Leave Act to provide for five days' paid domestic violence leave in a 12-month period. The leave is available where an employee or a relevant person has experienced in the past, or is currently experiencing, domestic violence. The leave can be used to seek medical attention, obtain services from a victim services organisation or other counselling, relocate temporarily or permanently or obtain an order under the Domestic Violence Act 2018 or other legal support.

Section 8 inserts new sections 13B, 13C, 13D, 13E, 13F and 13G into the Parental Leave Act that outline the right to request flexible working and the procedures which must be followed by the employee and employer. These provisions give effect to Article 9 of the work-life balance directive. A request must be made in writing, set out the form of the flexible working arrangement sought and be submitted not later than eight weeks before the proposed commencement of the flexible working arrangement. As with the leave for medical care purposes, the employer may seek further information. There are also provisions around the variation or termination of a flexible working arrangement.

On Report Stage, a new section 13H was also added which provides for the review of the provisions under Part 2 within two years of their commencement to assess their operation. This will include consideration of whether the five days of domestic violence leave should be extended and whether the right to request flexible working should be extended to a wider cohort of employees.

Part 3 provides for a right to request remote working for all employees. These provisions closely mirror those in Part 2 providing for the right to request flexible working. The request must be made in writing and the same timelines apply. There is also a review provision for this Part, to take place within two years of commencement.

Part 4 includes a provision for a code of practice for remote and flexible working to be developed by the Workplace Relations Commission, WRC. This code of practice will provide guidance to employers and employees on the operation of the right to request remote working and the right to request flexible working. Part 4 also includes amendments to the Maternity Protection Act 1994, at section 2(1), to provide for a new definition of "employee who is breastfeeding", which extends the entitlement to breastfeeding breaks under the Act from six months to two years. This Part also deletes section 7(2) and amends section 16(1) by substituting "woman or other person" for "woman". These small number of amendments are necessary to ensure the entitlement to maternity leave is available to any person who gives birth. In addition, Part 4 contains the miscellaneous provisions of the Bill, which include technical and other necessary amendments to the Birth Information and Tracing Act, the Adoption Act and the Irish Human Rights and Equality Commission Act.

What we have is a wide-ranging set of measures that not only implements European Union law but includes measures that go beyond our EU law requirements. It is a suite of measures designed to protect and promote women's participation in the workplace. It will see the introduction of five days medical care; a right to request flexible work for parents and carers; a right to request remote working for all workers; and the extension of breastfeeding breaks, which will be a genuinely transformative development. Women are currently entitled to breastfeeding breaks for six months after giving birth but for any woman who avails of her full maternity leave, that period will have elapsed. While the right to breaks is on the books, it is not accessible in practice for the vast majority of women. Women will be able to take breastfeeding breaks of up to an hour's length per day to breastfeed or express milk for a period of two years after the birth of their child. It is a genuinely significant expansion of this right and one that will benefit tens of thousands of women every year as they return from maternity leave.

I refer to the introduction of paid domestic violence leave. As Senators will know, when this Government took up office, we identified that there was an epidemic of domestic, sexual and gender-based violence, DSGBV, in our society. We have introduced a wide range of measures, principally through the Department of Justice, with the Minister, Deputy McEntee, bringing forward the third national action plan against DSGBV, as well as the introduction of an Act that will create a new agency to tackle DSGBV. We are taking an important step with this Bill in recognising that those fleeing domestic violence, who are primarily but not only women, are more at risk of poverty because of the disruption fleeing one's home often entails. This is an important step towards recognising this and ensuring such persons have paid leave to do some of the things they need to do in the context of suffering domestic, sexual and gender-based violence. It is important to note that Ireland will be one of the first European Union countries to introduce this leave. It is a very new form of leave and there are not many countries around the world that provide for it as a paid measure. The programme for Government and the Green Party's manifesto made commitments to support victims of domestic violence in all circumstances, and this is an important step in delivering those.

The Bill represents an important step forward in providing work-life balance and recognising that a parent's or carer's role is not suspended between 9 a.m. and 5 p.m. every day. These provisions make it easier and allow more people to balance their working and caring commitments. I look forward to hearing the views of Senators. I commend the Bill to the House.

Sharon Keogan (Independent)
Link to this: Individually | In context | Oireachtas source

I largely welcome the Bill. It is a hard and often thankless task to balance employer and employee rights, and I know how much of the debate on the legislation in the Dáil and in the committee centred around time periods, whether it would be paid or unpaid, and who would be included or left out of certain provisions. There are those who would tilt the scales entirely in one direction and force employers to pay time and a half to a worker who is out sick for three days, thereby putting the entire country out of business. Likewise, others would love nothing more than to flirt with the opposite extreme and erode workers' rights to flatten profit margins. Neither of these approaches is desirable and it is essential the Government strike a balance, an all-important word in the Bill's Title. To that end, it would be of great interest and importance to analyse and appraise the impact of the Bill on our working economy once it has been in force for some time. Will the Minister speak to that issue? What plans are in place to carry out such an assessment so that we can revise some of the timings in the Bill, if needed?

We must address the fiasco that was the removal of the word "woman" from the Maternity Protection Act 1994. What a ludicrous sentence to even have to say. The Minister may well respond, as he did to Deputy Tóibín in the Dáil, that this Bill does not remove the word "woman" from the legislation. While that is true, it was not always the plan. By the time the Bill was presented to the House on 5 October, the word "woman" was in its rightful place, albeit alongside the term "other person". One would have no idea as to how close we were to that not being the case. The general scheme of the Bill published on 21 April states: "The Maternity Protection Act 1994 is amended (a) in section 16(1) by the replacement of “woman” with “person”." The accompanying explanatory note declares: "For the avoidance of doubt, “woman” is being substituted for a gender neutral term, such as “person”." That was the plan of the Minister's Department, and I presume he and I have no reason to believe it would have changed if I had not flagged it in this Chamber on 6 June. Once people got wind that this was coming down the line, a national dialogue was kick-started and we had three days of back-to-back coverage on the national broadcaster. Joe Duffy quickly saw how passionate the women of Ireland are about themselves, one another, their identities and history, and all the comes with being a woman and recognised as a woman.This level of honest discussion had many progressives clutching their pearls and reaching for the smelling salts, so aghast were they that both sides of the debate would be given space to talk by our national broadcaster. Indeed, the national conversation that opened up was decried in this very Chamber. It seems, though, that at least one person was paying attention. Whether this was the Minister, or an official in his Department, we can be sure that these few strokes of the pen that turned head 12 of the general scheme into section 16 of this Bill saved his Government even more of a PR headache than he may think.

It is worrying, though, that none of this would have happened if one individual had not spotted a cluster of three heads in the general scheme of a little-known Government Bill, whose Title had nothing to do with the problematic provisions themselves. It is a good thing that Covid-19 taught us to raise the eyebrows any time we see "Miscellaneous Provisions" in a Bill Title and to go and do our own digging. The practice of hiding potentially unpopular provisions in technical, low-profile Bills is concerning and the apparent philosophy of women erasures is even more so. Work-life balance is good, but erasing women is bad. Let us see more of the former and stop with the latter. I thank the Minister.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

I welcome the Minister to the House. This is an important day. We are seeing the Work Life Balance and Miscellaneous Provisions Bill 2022 coming through the Seanad. Most people will know my passionate interest in supporting breastfeeding in Ireland, as the Vice-Chair of the Joint Committee on Gender Equality and co-convener of a new subcommittee of the Women's Caucus on breastfeeding. As the Minister rightly pointed out, the breastfeeding breaks did not really suit anyone. Few people would go back to work before six months and, as someone who has breastfed beyond two years for both my children, I think this time is appropriate.

If we look at the data, we have a gap in this regard in Ireland. We will be looking to the Minister for Health, Deputy Stephen Donnelly, to put in place some data analysis around how many women are breastfeeding beyond three months, because this is where the data stop in Ireland. In some ways, it is a little unfortunate that we do not have these data before we have this legislation. This does not mean, however, that we should not put this legislation in place. I would love to see people, as workers and carers, feeling supported in every way they can be to ensure their breastfeeding journey is as long as they want it to be. I think people feel pressured now in this regard to give up breastfeeding because of the lack of flexibility in workplaces. This is through no fault of workplaces but because there is no statutory instrument that will ensure all businesses are treated equally and are on an equal footing.

The other important aspect of this legislation, as has been mentioned, concerns paid leave for domestic violence. Ireland is the first country in the EU to put in place this kind of legislation. This goes beyond the programme for Government. It shows the commitment of the Government and the Minister, Deputy O'Gorman, to ensuring every possible avenue to support those experiencing domestic violence is pursued. We know this is a massive problem in Ireland. I refer to a meeting last week of the joint policing committee in Galway. This area has a particularly high incidence of domestic violence compared with the rest of the country. Some people will say more people are coming forward. This still does not change the fact that they are coming forward and that they are being abused in their own homes.

The Garda has now said it is taking an arrest-first approach to domestic violence, which is correct. Not only is this an assault, like any other, and a crime, but it also means people are living in constant fear in their homes. Children in those homes also live in constant fear and the experience impacts on them for their entire lives. Domestic violence impacts on entire generations in our society. We have a problem here and it must be addressed. This is an important part in doing that. I refer to there being paid leave to allow people to go somewhere safe and, crucially, that it will not be necessary to provide any documentary evidence under this legislation. It should not be a burden on the people who are the victims and being abused in respect of it being necessary to show evidence to employers when they may not want to. People have a right to privacy.

The other important part to speak about in the context of this legislation is on the remote working aspect. This provision is being incorporated into this Bill. All the recommendations from the pre-legislative scrutiny of this legislation are being incorporated into this legislation concerning remote and flexible working. Again, this shows a deep commitment to having the very best legislation when it comes to supporting people in their workplaces. We talk about the equal care that must be given by genders, but we know the majority of care is provided by women. When it comes to remote and flexible working, then, it is predominantly going to be women who will benefit from this initially. Over time, I hope this will change. The complementary aspect here is the provision to legislate for parental leave of up to seven weeks. The Minister has also put this into place. There have been many suggestions regarding how flexible work will operate to ensure there will be balance. I refer to ensuring that small companies, in particular, will be protected. The very fact that all these suggestions have been taken on board and incorporated into this Bill shows this measure will work.

From the Green Party's perspective, not only is this referred to in the programme for Government and fulfilling many of the negotiated commitments in that regard, but it has also long been a policy of our party to support breastfeeding, flexible working and care and this is exactly what this Bill is doing. I therefore thank the Minister.

Emer Currie (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I welcome the Minister to the House. I will focus on the work-life balance aspect of this Bill and the transposition of the directive, which the Minister has overseen. Additionally, I will comment on the inclusion of the right to request remote working, which is now contained under this legislation and was inherited from the Tánaiste's Department. It is a good move to have all this under one Bill. I very much welcome the inclusion of leave for victims of domestic abuse, the extension of breastfeeding breaks to two years and leave for medical care purposes. I commend the Minister and the joint committee for their introduction.

On the work-life balance elements of this legislation, we will now have flexible working arrangements contained in Irish law for the first time. This is significant. This part of the Bill has been widely overshadowed by the right to request remote working, even though remote working is only one type of flexibility and has limitations. Too much pressure is being put on remote work to deliver for everyone when there are many different types of flexibility. Flexible working arrangements open up possibilities like core working hours, compressed hours, reduced hours, flexi hours and jobshares, which offer radically more choices. After all, remote working does not work for everyone.

While the right to request remote working is universal, however, the right to request work flexibility is not. This will reduce its relevance and impact, unfortunately. The decision not to go beyond the directive's requirement to provide flexibility for parents and carers, although it does extend to children aged up to 12 rather than eight, reflecting the provisions of our current parental leave Act, means this legislation is not fully responding to the demand for workplace change that all workers want and have had a taste of during Covid-19. They do not really understand all the other aspects of flexibility that they could enjoy.

Rather than using the introduction of flexibility as an opportunity to challenge workplace stereotypes of employees who ask for flexibility instead of putting their career before life all the time, this Bill cements the perception that flexible working is something for parents and carers and, therefore, predominantly something that women do. Having listened to my colleague, this is where we are. Women are the ones who take on most caring duties. They will be the ones taking most advantage of this legislation.

To me, that is not good enough. As a society, we must challenge how we share the care. There are fundamental pillars to building gender equality and equal opportunities in the workplace. We need accessible and affordable childcare, flexible workplaces and a wider ethos of sharing the care. We have a mountain to climb in Ireland when it comes to that. With our current parental leave, women are three and a half times more likely to take it than men. When it comes to paternity leave, the take-up by men stands at around 50% even though it is now in its fifth year. Women with children are five times more likely to work part time than men with children. Our employment gap between men and women with children in 2021 stands at 18%, with 90% of men with children working compared to 72% women. We also know the more children women have, the further that figure drops. The longer they are out of the workforce, the harder it is to get them to return to work. According to the Central Statistics Office, CSO, that is reflected in the weekly earnings gap between men and women of approximately 23%.

It is clear that if we are going to shift the dial on sharing the care, we need more than the same. Similar to the provision of leave for parents, which men do not take up as much, and now the provision of flexibility for all parents and carers that women are also likely to take. We need a deliberate, fundamental and brave shift in creating shared opportunities and shared responsibility. Access to universal flexibility would help Ireland in that regard, as it has helped in other countries. According to the Oireachtas research brief on the Bill, Lithuania has a 1% employment gap, and universal flexibility is offered. Finland has taken a different approach. It has moved beyond the right to request and is the closest I have found to providing a universal right to flexibility. It is not completely a right for everybody, because it depends on their roles, but it has introduced core working hours in offices as the norm. That was done in 1996. Since then, the country has built on that with access to flexitime and now has built on that again with flexibility in location. That is as close to a right as I can find. In Finland, where there are two parents, both parents spend an equal amount of time with their children.

In the UK, the right to request flexibility from day one was introduced earlier this week. Iceland has also taken a different approach, with mandatory shared parental leave instead of separate maternity and paternity leave as a building block to sharing care, backed up with universal childcare provision from when a child is 18 months and it also has flexible workplaces. For that reason, Iceland is the most gender-equal country in the world.

There are different ways to encourage the sharing of the care, but universal flexibility is one proven approach. I fear we are missing a golden opportunity. It is a positive step that parents and carers will have the opportunity for a better work-life balance, helping those who take it to maintain their careers. It will help keep women in the labour market by giving them more flexibility, but it will not change the culture of work in the way day-one universal flexibility would. It will not level the playing field between the young mum and the "always-on-er" in the way it could. It will not encourage men to take flexibility in the same way as a system of universal flexibility would. We are going to have a situation in teams where one employee will have access to flexibility and a colleague of the same experience will not. We know that remote working generally works better for people with more experience and for people who do not miss the social aspect of the office. They might have children or an established circle of friends. Then we will have younger career starters who want to be in the office, who do not want remote working, but who do not get other types of flexibility as well.

I will refer briefly to remote working. It is positive that there has been so much change to the Bill as we move through Committee Stage, but I am still concerned about the six-month wait because it does not remove location as a barrier. If a person is living in County Donegal and he or she wants to take a Dublin-based job remotely, he or she must work in the office in Dublin for six months before he or she can make the move. We are still basing remote work as something that people do a couple of days a week, as opposed to having remote roles for people and creating a digital-first or remote-first environment. The Minister has a role in taking the pressure off remote working because it does not work for everybody. We have put too much expectation into what remote working can do, but we must train companies on how to do it properly; how to create digital-first environments where the remote roles can thrive. We have spent €100 million on investing in communities and hubs. That is where people work, but we also need the supply of those jobs in order to keep those communities and hubs thriving.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

I thank the Senator.

Emer Currie (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I am sorry, Acting Chair, I did not hear the bell.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

I rang it twice.

Emer Currie (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I am concerned about the amendment to section 13E, which relates to the termination in certain circumstances of flexible working arrangements. It seems quite hefty. I would also like to know whether the decision can be overturned by the WRC or if it is just a case of providing compensation. I will stop now as I have gone way over time.

Erin McGreehan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The Minister is welcome to the House. I also very much welcome the Bill. It is another step along the way of trying to make our legislation more equitable, look to families and people's lives and the all-elusive work-life balance we all strive for. I am sure that as Members we fail at that. I laugh at the irony of us bringing in this legislation while our lives are very much imbalanced.

Nonetheless, this is an important day. The Bill builds on the gender pay gap legislation. It is about making work work for families and women. I will follow on from what Senator Currie said. It is about the culture of work and changing our attitude to work and the 9 a.m. to 5 p.m. concept of it. We must be realistic that the system was made by men to work for men. At 9 a.m., the kids were at school and when they came home the kids were fed, the homework was done, and they had a nice evening ahead of them because the wife was at home doing all the work. Work must change and our concept and understanding of what work is must change, with more women in the labour force and more men sharing the care. We must change the concept of the work culture and how we understand it to be.

I will go through some of the welcome changes in this amended Bill. For me, one of the big initiatives I was pushing, along with Women's Aid Dundalk and Safe Ireland relates to paid leave for domestic, sexual and gender-based violence. It is a great step along the way. I know Safe Ireland has been working on it for so long. Ann Larkin from Dundalk Women's Aid is also on the board of Safe Ireland. Those organisations do significant work. I learn from them every day about the importance of this, and the acknowledgment that women in work go through domestic violence and they need a breathing space. The State has acknowledged that it is there to help. We accept that people, mostly women, need this. It is a great day. Five days' leave is a great start. As politicians we always ask for more. We must make this part of a step towards a minimum of ten days. It is difficult to move a family or to reach a safe place in five days, get help, get the refuge and all the things that are required. While five days' leave is very important, it is very tight. We need to train and support businesses to help them understand what this work-life balance Bill will mean to them and their staff. Breastfeeding, for example, is hugely important and businesses must understand their responsibility to make it as easy as possible. We do not want women feeling under pressure when they ask for these things in their workplaces. They must understand that these measures are in place and know what to do to accommodate these changes in their workplace.

I will follow up on the contribution of Senator Currie, the Seanad's expert on remote working who has done an awful lot of work in the area and spoken about it since she became a Senator. We all have to learn exactly what is meant by flexible and remote working. We must encourage people to make the change and encourage businesses to allow change to happen.

I ask the Minister to ensure the Bill is constantly reviewed. The Workplace Relations Commission must have a role in reviewing the legislation, examining ways to improve it and pushing for cultural change. As the culture changes, what we expect from this legislation will change, as I am sure it will.

I commend the Minister and his officials on the work they have done on this Bill. The Minister has produced a raft of legislation in the past two and a half years and hugely important changes have been made. I commend the Bill to the House.

Paul Gavan (Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I welcome the Minister. It is good to be able to talk about this welcome Bill. I should also point out that it has been brought forward because Ireland must fully transpose Articles 6 and 9 of the EU work-life balance directive. It is, therefore, something we have to do.

I agree with Senator Currie that in some respects the Bill is a missed opportunity. It is a rare occurrence but the Senator is right that this is a missed opportunity. If we are going to do this, we may as well do it right and ensure it benefits our people to the maximum extent possible.

Sinn Féin welcomes this Bill. It is a continuation of recent debates and legislation on remote working and flexibility. While a wider scope could have been adopted, the Bill is a welcome start. It provides leave for parents and carers, which is a good step forward. The Bill is not perfect and we have raised issues around the proof elements. More could be done on that and we can come back to it on Committee Stage. Indeed, the Minister can expect some amendments from us on Committee Stage.

Another very important provision in the Bill, as mentioned, is domestic violence leave. My party leader, Deputy Mary Lou McDonald, and my colleague, Deputy Louise O'Reilly, have previously put forward a Bill to provide this leave and the legislation before us resembles that in sentiment. However, we have issues with the five-day period. This Bill only provides between one and five days' leave. The wording of the Bill states the leave "shall not exceed 5 days", yet the Minister insists that five days is a statutory minimum. The wording is not clear enough for employers and could lead to those who would be inclined to provide ten days cutting back the period to five days. As we know, other countries and companies already provide ten days' leave. The Minister for Further and Higher Education, Research, Innovation and Science recently announced ten days' leave for staff in the National University of Ireland, Galway, NUIG, and called on the other universities to follow suit. I urge the Minister to reconsider the proposal and provide for ten days' leave. I acknowledge that a Fianna Fáil Senator has just made the same point. We will not get a chance to revisit this matter during the lifetime of this Government, so let us get the Bill right and provide for ten days' leave. We all seem to agree on that, so let us be ambitious and ensure the legislation is as effective as possible.

The Bill provides for flexible working arrangements, which are hugely important for parents as they try to manage or juggle childcare, school runs and other family commitments. Very few families can afford to live on one income so flexibility is crucial. We know that allowing an employee to have more control over his or her working hours and place of work has been shown to reduce absenteeism and staff turnover while increasing productivity. In other words, it is good for business. It also helps to cut travel cost and allows parents to manage their childcare and other caring responsibilities.

A new section 20(2) states: "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." Seriously, the British Tories, perhaps the most right-wing Tory Party we can remember, have just agreed that people can request remote working from day one. Does the Minister want his legacy to show that he is somewhere to the right of the Tory Party when it comes to this provision? There are common-sense, practical reasons remote working should commence from day one. There is also a very good business reason it should commence from day one because we know that skilled employees are now in serious demand and we need to be able to attract those employees to work and live in Ireland. However, this legislation will put us behind the Tories. As my colleague, Deputy Louise O'Reilly, said in the Dáil, we are only asking the Minister to do as much as the British Tories have done. For the life of me, I genuinely cannot understand why the Minister has not yet done this. I hope he will take into account Members' proposals, which I acknowledge have not come only from the Opposition side of the House. I urge him to make that change. He does not want to find himself to the right of the Tories on an issue such as this and he needs to do better. I do not know what his personal position is on this matter, and it would be interesting to hear it, but I urge the Minister to use his authority to recognise that making workers wait six months is not good for them or their home life and it is also not good for the commercial life of this country or the need to ensure Ireland is seen as a really good place to work. I ask the Minister to please come back and address that issue or allow us to address it on Committee Stage.

Section 20(3)(c)(i) states that employees must state the reasons they are seeking remote working arrangement. This is referred to as “the employee’s needs”. There are serious and genuine concerns about how someone's reasons or needs will be judged. What does it matter why someone wishes to work remotely provided the person is doing the work? This provision is too paternalistic and needs to be revised. Unfortunately, this and other amendments were brought forward by the Minister on Report Stage in the Dáil when they could not be properly scrutinised as they would be during Committee Stage. This caused a lot of frustration for my Dáil colleagues.

Sinn Féin supports the Bill but we will bring forward amendments. I urge the Minister to take on board the comments made by everyone in this Chamber this afternoon regarding sensible amendments that would make this Bill stronger and better for the workers in this country.

Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source

I welcome the Minister to the House. I am delighted that we are finally debating Second Stage of this Bill. I warmly welcome the transposition of the EU work-life balance directive. I acknowledge that there have been a number of very important additions made to the Bill, specifically the extension of breastfeeding leave from six months to two years. The argument that it was madness to extend this leave to six months has been articulated. It would have meant that women returning to the workforce would have been unable to avail of breastfeeding breaks. The provisions on domestic violence and remote working are also important. I am glad the Government has finally seen sense and merged the remote and flexible work provisions in one Bill, even though we still have the ludicrous situation where we treat flexible and remote work separately. I know there will be a review of two years but it is ludicrous that they are separate.

Notwithstanding that the Bill transposes the EU work-life balance directive, it is about catching up with the events that have taken place within the world of work in this country and across the developed world over the last two and a half years. It puts remote and flexible work into a legal framework.We are all aware of the massive shifts that have taken place with regard to forced remote working and now hybrid working in remote instances. I draw particular attention to what has been happening to women in the Irish labour market over the past two and a half years and how access to flexible and remote work has been instrumental in this. Between the first quarter of 2020 and the first quarter of 2022, there was a 9.5% increase in the number of females in full-time employment. The rate of growth of female full-time employment is running at approximately 3.5 times the rate of growth for male full-time employment. Why is this? We know that part-time employment is defined not as working half the number of hours but as working for less than full-time hours. When many women reach a particular age, or because of the circumstances of their lives, they drop back from full-time hours to four days a week or fewer. The benefit of remote and flexible work is that they realised they are able to work full-time and still manage all of the other responsibilities in their lives, such as getting children to school. This is because they have flexibility.

The key issue with the Bill is how we do not turn back the clock but build on the great progress that has happened. This is not in any way to diminish what is also happening in terms of the struggles for some women in the workplace with regard to productivity because they have been trying to manage responsibilities at home. How do we not turn back the clock with this legislation? How do we realise the potential? Senators Currie, Gavan and others eloquently made the argument about the opportunities that are available to us now. I am thinking in particular of the 13.5% of people who are categorised by the CSO as being in the potential additional labour force category and who say that they would like to work but are not actively seeking work because of the structural barriers in their lives, whether childcare, disability or other issues. It is important to consider how the legislation might play a role in getting those people into the workplace.

When we compare Ireland with other EU member states, we discover that have the highest number of jobless lone parents and disabled persons in the labour market. How do we begin to ensure that lone parents and disabled persons have greater opportunities and access to the world of work? I think about all of this when I look at the provisions in the Bill. The Bill makes provision for a six-month waiting period to access flexible work. I have to appeal to the Minister. We cannot see flexible work as a perk for good behaviour. We have to build it in as a default right from day one; it should not be seen as something to be earned. The Minister has responsibility for equality and integration. I know he takes very seriously issues relating to the very high levels of unemployment among disabled persons. We have to look at how we make flexible work available from day one. The recommendation of the Joint Committee on Enterprise, Trade and Employment is that we move to 13 weeks. I would not be happy with 13 weeks but it would be far better than the 26 weeks in the Bill. I would argue that it should be available from day one.

With regard to access to flexible work provisions, the cut-off age for caring for a child is 12 years. Any parent of a 12-year-old knows that they cannot necessarily be given a key to let themselves into the house. It works for some families but not for others. We should not presuppose that just because a child turns 12 that all of a sudden the parent's responsibilities and requirement for flexibility disappears. They do not.

I want to speak about caring roles. I have great difficulty with the Bill seeking to prescribe the circumstances in which a person is caring. If I happen to be caring for an aunt or my mother in law it is not provided for in the Bill. We need to put ourselves into a head space of recognising that people require flexibility with regard to hours of work and places of work for a variety of reasons that we will never be able to fully set out in legislation. It is disappointing that we do not have a full and comprehensive right to flexible work in the Bill. The Bill will work very well for those in jobs but does nothing for those looking to get a job. Where is our ambition, particularly for lone parents and disabled persons?

I warmly welcome the provisions on leave for medical care purposes. We have to ask whether the provisions as they are currently designed will benefit those who need to access the leave. Those who are salaried and higher earners tend by and large to have more flexibility as part of their work than somebody whose weekly wage is determined by the hours they work or those on lower incomes. We know those on lower incomes or more junior in workplaces have issues. Will the unpaid leave make a difference for them? They have the double whammy of paying for medical care if it is required and not getting paid. I urge the Minister to think about this. Domestic violence leave will not be at the full rate and will be set up by means of regulation. Those who are victims of domestic and sexual-based violence will have to think twice about taking the leave. This is a serious issue.

There was a big uproar at the start of the year because there would be no right to appeal a refusal by an employer if an employee sought the right to work remotely or work flexibly. There is still no real right to appeal an employer's refusal. I am looking at section 27.

Sharon Keogan (Independent)
Link to this: Individually | In context | Oireachtas source

I thank the Senator.

Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source

This is very important.

Sharon Keogan (Independent)
Link to this: Individually | In context | Oireachtas source

I understand, but I have given the Senator some leeway.

Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source

An adjudication officer cannot adjudicate on the merits of an employee's request.

Sharon Keogan (Independent)
Link to this: Individually | In context | Oireachtas source

I thank the Senator.

Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source

I ask the Minister to explain more as to why there is not a proper right for appeal.

Sharon Keogan (Independent)
Link to this: Individually | In context | Oireachtas source

I thank Senator Sherlock for her contribution.

Mary Seery Kearney (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I welcome the legislation. It is based on an EU directive and we need to remember a directive is not regulation. A directive has to be experienced at the same base level in every EU member state. This provides us with an opportunity to provide more rights than the base level intention of the directive. I echo much of what Senator Currie and others said. I concur that we should look at ten days instead of five. When we transpose we need a minimum equivalence but we can go way beyond this.

I commend the enormous work since the first day I met her that Senator Currie has put into this subject matter. She has been extraordinary and has led in an extraordinary way on it with all of us. Throughout the Chamber we would echo this.

I have a number of points to make and I will flesh them out on Committee Stage. A relevant parent includes those in loco parentis. How will this be tested? How will it be verified that someone is in loco parentis? In an emergency situation it is not reasonable that people may have to do this. We need more specific direction on how it will be tested as to whether someone is in loco parentis, be it on a temporary or full-time basis. Between now and legislating for surrogacy, for instance, will the second parent be deemed in loco parentisuntil they have statutory standing? How do they qualify?

With regard to carers' leave I note the Bar Council made comments on consistencies and inconsistencies with the Carer's Leave Act in this regard. Something that strikes me, and I will explore it further on Committee Stage, is that under employment equality law we have family status protection that would consider aspects of caring. Therefore, there is a protected status for someone with a child or another member of the family with a disability or an impairment. There is quite a body of law in the Labour Court about this.Given that is a protected category, its intersection with this legislation needs to be considered, particularly in the context of the bar to having access to this entitlement after 26 weeks. We need to give this greater consideration. It is just one of the issues that we need to think about further on Committee Stage.

The next concern is that there needs to be a significant medical issue, as per section 5. How is that verified or adjudicated upon at short notice? Where does one cross the threshold into a significant medical issue? How does an individual know that he or she has reached that threshold and can avail of the related entitlement? We need feedback and further exploration in that regard.

While I welcome the fact that domestic violence leave has been included, I have some concerns vis-à-visthe general data protection regulation, GDPR, and the retention of domestic violence-related data. The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 which governs Garda vetting provides that only a designated person is allowed to hold information of a disclosure on the PULSE system related to an employee. We need to be very sensitive with regard to domestic violence leave. Where someone accesses such leave, and I would wholeheartedly support his or her right and entitlement to do so, there needs to be a sensitivity with regard to the storage of the related data.

Sharon Keogan (Independent)
Link to this: Individually | In context | Oireachtas source

The time is up

Mary Seery Kearney (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I have one final point to make. I thank the Acting Chairperson for her indulgence. It should be incumbent on every employer to set out the entitlement to flexible working or remote working, although I would stress that the latter is completely distinct and very different. When employers are creating a role, they should be obliged to set out the entitlement, and the ability, to perform that role in a flexible or remote way. There should be an objective test at the very beginning. Otherwise, employers are going to come unstuck in terms of how they adjudicate because it will be very personalised in some instances. We are in somewhat dangerous territory here and could be opening the door to a flood of Workplace Relations Commission, WRC, cases.

Fintan Warfield (Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I welcome the Minister to the House. Covid-19 forced us to reimagine much of our lives, not least our work life balance. These hard-earned lessons should and must be part of our future approach to the issues around caring, disability, inclusivity, equality and workers rights and this Bill is a welcome step in that regard.

While the Bill includes a number of important provisions for family carers, there are several aspects of this legislation which are of concern. I refer specifically to the list of those for whom unpaid carer's leave days or flexible working can be applied. This definition excludes applicants in respect of care provided to non-relatives who do not live in the same household. I am conscious that members of the LGBT community, for example, may rely on friends and other members of their community for care. The Bill's narrowing of the meaning of family is at odds with the spirit of pending referendums around the definition of family and so on.

My party colleagues in the Dáil previously highlighted the Bill's defects in the context of the required sharing of personal information. Again, I am concerned about this requirement for members of the LGBT community who, for historical reasons or for fear of discrimination, may not wish to disclose personal medical information to their own or their carer's employer. I ask the Minister to consider whether there is another less intrusive way to deal with that issue.

I also wish to raise the very important issue of maternity leave for Oireachtas Members. Despite a number of Opposition amendments being proposed, the Government failed to bring forward amendments to provide for maternity leave for Members of both Houses of the Oireachtas. When this legislation was approved in September, the Government signed off on using it to provide for maternity leave for Oireachtas Members. In October, the Minister, in response to a parliamentary question, informed Deputy McDonald that it was his intention to introduce maternity leave provisions in this Bill on Report Stage in the Dáil. In November, that intention was restated but we have not seen the amendments yet. I ask the Minister to provide an update. Why were maternity leave-related amendments not tabled? As this Bill will shortly conclude its legislative journey, I ask him to clarify whether it is now his intention to introduce separate legislation to provide for maternity leave for Oireachtas Members?

While I welcome the Local Government (Maternity Protection and Other Measures for Members of Local Authorities) Bill 2022 which provides leave for councillors and temporary substitution for all councillors who are absent, I would point out that Members of the Oireachtas do not have access to those same provisions. I look forward to the Minister's response.

Shane Cassells (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I now invite the Minister to respond to the debate.

Roderic O'Gorman (Dublin West, Green Party)
Link to this: Individually | In context | 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.

Shane Cassells (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

When is it proposed to take Committee Stage?

Erin McGreehan (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Next Tuesday.

Shane Cassells (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Is that agreed? Agreed.