Niall Ó Donnghaile (Sinn Fein)
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Ba mhaith liom fáilte a chur roimh Uachtarán Mhálta fosta. He and his delegation are very welcome to the Seanad. Ba mhaith liom fáilte a chur roimh an Aire fosta agus fáilte roimh an leasú atá á phlé againn faoi láthair. My colleague, Senator Gavan, has outlined our perspective on this eloquently. I spoke at the Order of Business this morning as to where I stand and where Sinn Féin stands in relation to this matter. The reality is the prescribed rate of pay remains in the Bill. That is a fact and is not addressed by any of the Government amendments. Organisations such as Women's Aid are devastated, shattered and gutted. They cannot quite believe that the Government has reversed on its public commitment to address the issue of 100% pay.

The other fact and the sad reality is that reducing the pay of victims will place them in harm's way. We have a clear obligation-----

Gerry Horkan (Fianna Fail)
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We might acknowledge the departure of our visiting guests and acknowledge they are all very welcome.

Niall Ó Donnghaile (Sinn Fein)
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Senator Hoey rightly said this is something the Seanad should not allow. I would go further and say to the Minister that this is something the Seanad must not allow and the Minister should not allow it either. As Senator Gavan said, they have the opportunity here to do the right thing. I understand the difficulties people have in terms of adhering to a party Whip, a Government Whip or whatever it may be. However, this Seanad works best, and in my experience the previous Seanad worked best, when we work on a collaborative basis and come together around fundamental issues of importance such as the safety, primarily but not exclusively, of women. There was an example in this term and in this Chamber when Senator Higgins tabled a motion on an Agreement on Trade-Related Aspects of Intellectual Property Rights, TRIPS, waiver and the Government tabled a counter-motion. However, two Government Senators rose to indicate they could not support that counter-motion. Therefore, it can be done. In instances like this, we are all agreed that it should be done and must be done.

Even at this late stage, I ask the Minister to reflect on this Bill and what it does not do. I again respectfully appeal to colleagues on the Government side of the House to do the right thing, to reflect on what they said, and to reflect on stances they or their colleagues have taken in the past in this House. I do not think it will be for anyone on the Opposition benches to glorify or to harangue people into doing that. We have an opportunity here to do the right thing. What is the point of the Seanad if we cannot do the right thing on an issue of such fundamental importance? It is not too late to do it.

Emer Currie (Fine Gael)
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I wish to support my colleague, Senator Seery Kearney, who articulated this very well.From reading the communication from Women's Aid, an organisation I want to recognise in the Gallery today, my concern is that this would be a red flag.

We have come to understand coercive control a lot more in the past five years than we ever did before. The experience of Covid has shown us the depths of despair and danger that women are living in. This is a positive Bill. I cannot articulate it better than Senator Seery Kearney did when she said that if we are going to do this we need to do it properly. I ask the Minister to reflect on this at this point and ask whether this is delivering for the victims that it needs to deliver for.

Roderic O'Gorman (Dublin West, Green Party)
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I thank Senators for their contributions. We had significant discussions about this issue on Committee Stage, which was very useful. A number of amendments were put forward by the Opposition and there were a number of contributions from Government colleagues. I reflected on that and, as such, have brought forward two amendments today.

It is important to say what is not in the Bill. A figure of 70% has been set out as if that rate of pay has been written into the Bill. That is not written anywhere in the Bill and it is important to be clear about that because I am sure a lot of people are watching this debate. It has also been said that the Bill will automatically involve a reduction in the rate of pay. That is not written into the Bill anywhere and we need to be very clear about that.

The Bill sets out at what rate domestic, sexual and gender-based violence leave will be paid. We had a detailed discussion about the criteria set out in the Bill. Senators correctly said there are concerns about some of the criteria. Some were very macro-economic and considered the entire economy rather than dealing with the specific nature of the issue.

I am speaking to the Opposition amendment, but amendment No. 7 is relevant to this discussion. It deletes the provision we are discussing and mirrors the proposal put forward by Senator Higgins on Committee Stage and which she brought forward again today. Second, and more important, we are including a specific provision that in a consideration of what the rate will be, service providers in the domestic, sexual and gender-based violence sector will be specifically consulted. Their views, understanding and knowledge of issues like coercive control and the degree to which victims of violence have their bank accounts monitored, as Senators have said, will be a key part in any decision made by the Minister on what the rate will be.

Throughout the process of the Bill we have listened to these organisations. Earlier in the process, a suggestion was made by some groups that there should be an evidence requirement in terms of someone taking up domestic, sexual or gender-based violence leave. Organisations flagged very clearly the risks of that and it was very clear when the Bill was published that was not the issue. We have listened to the concerns of these organisations. Senator Sherlock made the point that we have to get the detail right. She is absolutely correct. We need to consider how we can better inform a Minister making a decision on the terms of the rate and get the detail right if the Minister is hearing directly from the organisations involved.

We are making two key changes. The first is removing the higher-level consideration and, in particular, making sure that the Minister hears directly from the organisations involved in terms of the determination he or she may make about what the rate of pay will be. Senator Currie asked whether the Bill will deliver. I believe it will. Given the changes we have made, it will deliver the necessary degree of protection that we want to achieve for victims of domestic, sexual and gender-based violence.

We have not made the effort of including this new provision that has come about because of a Government initiative or gone to all of the effort to include this in the Bill if we do not intend to deliver for the people who need it. That would not be consistent with the Bill, the third national strategy or all of the Government actions taken over the past two and a half years.

Paul Gavan (Sinn Fein)
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I want to welcome Sarah Benson from Women's Aid, who is in the Gallery to witness this debate first hand. The Minister said he has listened to concerned voices. I do not understand how he can say that when he knows the reduced pay provisions remain in the Bill.

What the Minister has not done in his response is in any way address the Sinn Féin amendment. The key part of the amendment is that pay in respect of an employee's domestic violence leave shall be at the normal weekly rate or, as the case may be, a rate which is proportionate to the normal weekly rate. What the Minister has not done is explained why on earth he would object to that provision when the provision ensures that a victim of domestic violence will receive her or his weekly rate of pay.

He also has not addressed a key issue raised by a number of Senators, including Senator Seery Kearney, that, as it stands, the provision has the potential to put women at real and significant risk because of the reduction in pay. The Minister has an opportunity to accept this amendment. The amendment simply ensures that a victim of domestic violence will receive his or her normal weekly pay. He has given no reason that would not be acceptable.

With the greatest of respect, I do not believe anyone in this Chamber could accept a position whereby the Minister will not accept this amendment, even if some are apparently still willing to vote with the Government. It is wrong. As Senator Seery Kearney said, this decision effectively undoes the good of the Bill. It places women at risk. The pay reduction elements are still in the Bill. Our amendment will remove them. This is the last chance that we have to make a difference.

The Minister has not been listening. That is why Women's Aid is here to witness what is happening today and give the Minister and his colleagues on the Government benches a final opportunity to do the right thing. We in Sinn Féin are passionate about this issue because my colleague, Deputy Quinlivan, and our party leader, Deputy MacDonald, introduced the first Bill dealing with domestic violence. It is an issue we, along with everyone else in the Chamber, feel very strongly about. For the life of me, I cannot understand why the Minister will not accept a simple amendment to ensure that victims of domestic violence would receive their normal weekly pay and by doing so ensure that risk is removed. Why on earth would the Minister not do that?

Roderic O'Gorman (Dublin West, Green Party)
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I thank the Senator. I can assure him there is no less passion on this side of the House in terms of the delivery of this Bill. I want to make it very clear on my behalf that in the programme for Government there was a commitment to look at the issue of domestic, sexual and gender-based violence leave. We have taken that commitment and advanced it to a stage whereby we are going to implement this paid leave, recognising the risk of poverty those fleeing situations of domestic violence face.

The Senator has put out the suggestion that the Bill requires a reduction in pay. It does not. Rather, it sets out a criteria in terms of the rate of pay. Senators correctly raised points about the criteria that were being used and we are amending those criteria today in order to make sure that information from those who have the best knowledge of the impact of domestic, gender and sexual-based violence, and the specific impact it can have on people in individual circumstances, like those who have spoken to Senators about this issue, is directly fed into the Minister in terms of the decision making process.

Paul Gavan (Sinn Fein)
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That does not fix the Bill.

Roderic O'Gorman (Dublin West, Green Party)
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It does fix the Bill.

Paul Gavan (Sinn Fein)
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Why will the Minister not accept the amendment? Please explain.

Gerry Horkan (Fianna Fail)
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The Minister, without interruption.

Roderic O'Gorman (Dublin West, Green Party)
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It ensures those who have the most understanding about this issue are able to feed directly to the Minister in terms of a decision the Minister makes. I believe that will allow us to ensure that, when this rate is set, it does deliver. The rate that is set will in no way undermine the overall goal of this legislation, which is to deliver for victims of domestic violence. I believe this is the right approach to take. We are listening to groups. We have listened to groups throughout this entire process. We will continue to listen to groups who understand these issues best. That can be seen in our approach to this legislation, the third national strategy, creating a domestic, sexual and gender-based violence, DSGBV, specific agency. We have always listened to these groups.

Niall Ó Donnghaile (Sinn Fein)
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Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Jerry Buttimer (Fine Gael)
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I welcome a delegation from the Embassy of the United States: Mr. Peter Glennon, Mr. Ted Danovitz and, for the first time in the Oireachtas, Mr. Peter Thesis. They are very welcome and I thank them for being here.

Amendment No. 5 has been ruled out of order as there is a potential charge on the revenue.

Marie Sherlock (Labour)
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I move amendment No. 6:

In page 11, to delete lines 19 to 43, and in page 12, to delete lines 1 to 10.

Pat Casey (Fianna Fail)
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Amendments Nos. 7 to 9, inclusive, 11, 13, 15 and 17 are related and may be discussed together by agreement. Is that agreed? Agreed.

Roderic O'Gorman (Dublin West, Green Party)
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As I said in the context of the last debate, during Committee Stage we had a very extensive debate about the rate of pay issue and a number of Senators raised issues and expressed concerns about rates being set at a rate lower than 100%, the potential impact that could have on uptake and, most importantly, recognising, as we do now, the specific nature of coercive control and the degree of examination a victim of coercive control can be under, particularly in terms of their bank account and the control that is exercised there.

I reflected carefully on the criteria that are used to set out the rates of pay. I am bringing forward two primary amendments in this group that reflect those concerns. The first is the removal in terms of consideration of the criterion of the general economic environment, issues of competitiveness and the business environment. Senators rightly flagged that that was far too macro an issue for appropriate consideration in this context. Senators Higgins, Ruane and others have tabled an identical amendment.

Again, an issue that came from our debate the last time was that there needs to be the specific input of DSGBV service providers. These are groups or organisations which know best and understand best the impact of the various elements of DSGBV, particularly the impact of coercive control and how it can be applied to a victim in terms of something as detailed as noticing a small reduction in their weekly pay package.In response to that we brought forward the amendment specifying that before any decision is taken on a rate that the views of DSGBV service providers must be taken into account. As the Minister who will be passing the regulation and setting the rate, I will not bring forward any rate that I believe would in any way undermine what we are trying to achieve with this legislation. I will not bring forward any rate that I believe would in any way put a victim of domestic violence at risk, or would in any way interfere with what we have worked so hard to achieve in terms of the introduction of paid domestic violence leave.

That is my commitment to Senators today. I believe the two amendments the Government is bringing forward today allow us to provide a mechanism whereby we can achieve the appropriate rate that will deliver comfort and assurance for victims of domestic, sexual and gender-based violence that the legislation and the provisions we are bringing in today will be effective for them.

Lynn Ruane (Independent)
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Amendment No. 7 seeks the deletion of subsection (7)(a) of the proposed section 13AA. I want to read into the record what exactly that provision states.

In making regulations under subsection (6), [which relates to the daily rate of domestic violence leave pay] the Minister shall have regard to the following matters:(a) the state of the economy generally, the business environment and national competitiveness;

I am very pleased the Minister has reflected on the matter between Committee and Report Stages and that he has tabled the same amendment as us, thereby accepting our argument and amendment. Whether an economy is in boom or bust, people experiencing domestic violence deserve to be financially supported and not to be disincentivised from using the leave. The only consideration we should have when it comes to domestic violence leave pay is whether it is sufficient for someone to live on it and to support themselves and their dependants while moving away from an abuser. I am really glad the Minister has accepted the amendment.

I am also glad to see the introduction of amendment No. 13, which accepts the principle of our amendments in this regard. It is worth noting, however, that one very prominent domestic violence organisation is telling the Minister something now about the rate of domestic violence-related leave pay and he really needs to listen.

Paul Gavan (Sinn Fein)
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Of course we welcome these amendments, but they do not address the reduced pay provisions that remain in the Bill. While we will support the amendments, I put it to the Minister that they still do not address the issue of reduced pay. I note the Minister's comments when he introduced the amendments. It is important that he puts on the record here this evening that he will ensure that victims of domestic violence receive their normal rate of pay. That is a simple ask. The Minister could have accepted it via our amendment but he chose not to. Why would there be any ambiguity about it? It is a very simple ask. Will the Minister please do that now?

Marie Sherlock (Labour)
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The Minister has listened to what we had to say about getting the detail right. We have listened to what he has had to say about the importance of a process and engagement. The reality is that he has had a number of groups, those who know in great detail what the life of those who experience domestic violence is like and what they have to go through. They have engaged with the Minister and they have written to him. I understand that he wants to get it right in terms of having the criteria right to set it up, but we must ask what the conclusion will be at the end of the day. The Minister said earlier that there is no suggestion in the legislation that the pay is going to be less than the normal rate of pay and that our inference that it is going to be aligned to sick pay is effectively incorrect. He says that our suspicions and fears that it is going to be aligned to the 70% rate of sick pay are unfounded. If that is the case, the Minister will appreciate that we want it hard-wired into the legislation not only for the current Minister but for all future Ministers. It is very clear the Minister does not want to incorporate that into the legislation, but if he parks the reference to all future Ministers, could the present Minister, Deputy O'Gorman, give a commitment that under his tenure domestic and sexual-based violence leave will be paid at the full rate for the duration of his term as Minister?

That is the message we need to hear from today. We are disappointed that it is not hard-wired into the legislation but there is an opportunity for the Minister to be clear. The Minister can have a process, but he knows what the answer is, as he knows what the groups have said to him. We do not need to commission a piece of research to know. It is evident from our contributions on Committee Stage and Report Stage today that we know what the impact will be if it is anything less than the full rate of pay. Let us park the notion of future Ministers for a moment: what we need to hear is what the Minister going to do in his tenure as Minister.

Roderic O'Gorman (Dublin West, Green Party)
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I thank the Senators for their contributions. What the amendments the Government brings forward today do is ensure that the knowledge and information about the specific impact, in particular in the case of coercive control in terms of control over bank accounts and knowledge of income a victim of DSGBV is receiving, are used to make sure they can be central to a decision taken on the rate. I will repeat what I have said to Senators, I am very clear what I am seeking to achieve by means of the introduction of this legislation, which is an effective system whereby victims of DSGBV can take leave knowing that their salary or income is secure, thereby addressing the issue of poverty. I have no intention of bringing forward a rate that would in any way undermine that goal. I have no intention either of bringing forward a rate that would potentially put victims of DSGBV at risk, as some have suggested would take place if a lower rate was set. I stress that I have no intention of bringing forward a rate that would in any way undermine what we are trying to achieve with this legislation.

A process is in place under the legislation. We have altered that process to make sure the higher level business issues are removed, but most importantly to make sure the input of NGOs is central in the decision-making process. I believe that input in particular will deliver us the outcome we all want, which is an effective DSGBV paid leave provision.

Frances Black (Independent)
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I move amendment No. 10:

In page 11, to delete lines 42 and 43, and in page 12, to delete lines 1 to 3.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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I move amendment No. 12:

In page 12, between lines 5 and 6, to insert the following: “(da) the potential impact that the rate of domestic violence leave pay may have on persons experiencing certain forms of domestic violence, in particular persons experiencing coercive control or financial control;”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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I move amendment No. 14:

In page 12, line 6, after “opinion” to insert “, including that of service providers working in the area of domestic violence”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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I move amendment No. 16:

In page 12, between lines 9 and 10, to insert the following: “(fa) the views of service providers working in the area of domestic violence;”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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I move amendment No. 18:

In page 12, between lines 10 and 11, to insert the following:

“(7A) The Minister shall, within 6 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining the potential for the rate of domestic violence leave pay to match the normal pay of an individual availing of this leave in order to protect the individual where they are experiencing coercive control or financial control.”

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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I move amendment No. 19:

In page 12, line 13, to delete "in loco parentis" and substitute “providing parental care”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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Amendment No. 19 refers to the definition of "in loco parentis", previously discussed in amendment No. 1. This amendment seeks to remove the phrase "in loco parentis" and replace it with "providing parental care" in the definition of dependent person in proposed section 13AA relating to domestic violence leave. The reason we have sought this amendment is to ensure that the provisions relating to domestic violence leave would apply to foster parents who may need access to the support provided here, particularly in respect of relocation.

Roderic O'Gorman (Dublin West, Green Party)
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This amendment seeks to substitute the term "in loco parentis" with the phrase "providing parental care" and support. The term "in loco parentis" is used elsewhere in this legislation. Having taken advice on this, we are satisfied that the current wording will cover foster care arrangements. The current wording is sufficient regarding foster care which was raised on Committee Stage. More broadly, this term is used throughout the legislation. To remove it in this instance would create an inconsistency so we are not recommending acceptance in this situation.

Mary Seery Kearney (Fine Gael)
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I support the Minister on this point. It is found in other legislation and in general legal terms "in loco parentis" means anyone who is in the position of the parent. It does not just apply to foster carers. It applies to anyone stepping into that position.

Pat Casey (Fianna Fail)
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Amendments Nos. 20 and 21 are related and may be discussed together by agreement. Is that agreed? Agreed.

Frances Black (Independent)
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I move amendment No. 20:

In page 13, line 24, to delete “shall” and substitute “may”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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Amendment No. 20 seeks to amend section 13B(3) by deleting the provision that a flexible working agreement "shall end" and substituting that it "may end" when the conditions under subsection (3) are met. There is something of an assumption that employers automatically want flexible work agreements to end and that they are seen as obstructive. However, it may be the case that both an employee and employer may want such arrangements to continue and that such arrangements might be of mutual benefit.

Amendment No. 21 seeks to delete the provision under section 13B(3) that a flexible working agreement shall end if the child concerned has a disability or a long-term illness and that child reaches 16 years of age. The idea that flexible working agreements would automatically end with a hard cliff-edge even in scenarios where an employer and an employee may wish to continue such arrangement is not conducive to society care is prioritised.

In Ireland, many parents are required to care for their disabled children long into adulthood. We know from the very well documented issues with home care and provision of supports to disabled people that they often have to rely on family members. This means that flexible working arrangements should be able to continue past the age of 16.

Family life is complex and children have different needs at different points in their lives. For example, a teenager might need someone to be home with them when they finish school at 4 o'clock because of a variety of different supports they might need, be they academic, emotional, physical, etc. The point is that employers and employees should be able to negotiate and come to an arrangement that suits both rather than there being an assumption in law as to what families need. We should be giving people the scope to make the best decisions for their own families in context-specific circumstances.

Roderic O'Gorman (Dublin West, Green Party)
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Section 8 inserts a new Part IIA into the Parental Leave Act 1998 to provide a right to request flexible working for parents and carers. The proposed amendments would amend the new section 13B which provides for the range of persons for whom the leave can be taken. Part IIA has been carefully drafted to ensure that the directive is correctly transposed and provides the right to parents and those providing personal care or support for serious medical reasons to persons who fall within a range of family or personal relationships as set out in the directive. It is important to bear in mind that in this section we are transposing EU law into domestic law. We have to be careful regarding the definitions we put in there so that we do not fall out of the confines of the directive.

It is also important to recognise there is a review provision under this legislation. Section 13H provides for a review of the legislation later than two years hence. I will be bringing forward an amendment later on that addresses this. It makes it very clear that broadening to flexible work will be one of the issues that the review provision should look at. I am not in a position to accept this today. I ask the Senator to take note of the amendment that I will be bringing forward later on to ensure that when we do the review within two years that looking at broadening out flexible work to other groups beyond parents and carers, as remote working is currently under the proposed legislation, is one of the things that is explicitly listed there.

Frances Black (Independent)
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I move amendment No. 21:

In page 13, line 24, after “shall” to insert “, subject to the approval of the employer and the employee,”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Acting Chairperson:

Amendments Nos. 22 and 23 are related and may be discussed together by agreement. Is that agreed? Agreed.

Frances Black (Independent)
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I move amendment No. 22:

In page 13, line 35, to delete “16 years” and substitute “17 years”

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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Amendments Nos. 22 and 23 are alternatives to previously submitted amendments on Committee Stage which sought to change the age when a flexible work arrangement due to disability of a child would end from 18 years to 16 years. This comes back to the issue of complexity of family life. In some places this legislation restricts employers and employees from being able to make mutually beneficial decisions with regard working arrangements. On Committee Stage, the Minister cited the directive requirements of amendment No. 16 being stipulated. However, we need to be clear that what the directive proposes is the floor of our ambition not the ceiling. We can be ambitious in our transposition. We know the directive is not a reason to not accept this amendment. Why will the Minister not accept our proposals?

Roderic O'Gorman (Dublin West, Green Party)
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I understand what the Senators are trying to do here but I genuinely do not believe it is needed because of the other provisions of the Bill. The Senators are trying to amend the age limits for a child with a disability or long-term illness for which a request for a flexible working arrangement can be made. The age limits for relevant parents to request flexible working arrangements for care purposes are aligned with the age limits for parental leave so the leave can be taken before the child's 12th birthday or 16th birthday if the child has a disability or long-term illness.The leave can be taken before the child's 12th birthday, or 16th birthday if the child has a disability or long-term illness, or the arrangement can be in place up until the child's 12th or 16th birthday. Obviously, that goes beyond what the directive actually said. The directive put a minimum of eight so we are already significantly beyond that. The Bill says that a relevant parent can also qualify for a right to request flexible working arrangements where he or she is providing personal care and support to somebody and that can include a child. There is no age limit there, so that could include an adult child if the needs of the adult child were such that he or she required the parent to be in a position to provide care and support under this directive. The entitlements provided for under the Bill would apply to a child of any age where there is a need. In that context, the changes that Senator Black is proposing are not necessary, when we already have that provision in there.

Frances Black (Independent)
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I move amendment No. 23:

In page 13, line 35, to delete “16 years” and substitute “21 years”.

Paul Gavan (Sinn Fein)
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I second the amendment

Pat Casey (Fianna Fail)
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Amendments Nos. 24 and 25 are related and may be discussed together by agreement. Is that agreed? Agreed.

Frances Black (Independent)
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I move amendment No. 24:

In page 14, to delete lines 2 to 4 and substitute the following:

“(4) Subject to the approval of the employer and employee, an employee’s approved flexible working arrangement shall not commence before a time when the employee concerned has completed 6 months continuous employment with the employer concerned.”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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Amendment No. 24 seeks to delete section 13B(4), which provides that an employee’s approved flexible working arrangement "shall not commence before a time when the employee concerned has completed 6 months continuous employment with the employer concerned" and replace it with the provision that such a restriction would be subject to the approval of the employer and the employee. This is a regressive provision which seems to be out of step with the reality that many employers may wish to offer flexible work arrangements from the outset and that such arrangements may be better suited to the nature of the employment being offered. Such a limit seems arbitrary and betrays a lack of ambition in the context of how people actually enter the workforce. This provision may particularly negatively impact women returning to work after a period of informal care work and may act as a deterrent for such women seeking to return to formal work.

Amendment No. 25 is an alternative to amendment No. 24, which would provide that subsection (4) shall not apply where an employer and employee agree to commence an employee's approved flexible working arrangement prior to the completion of six months continuous employment with the employer concerned.

Roderic O'Gorman (Dublin West, Green Party)
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The entitlement to many forms of family leave requires a minimum period of employment. For parental leave and carers' leave, for example, there is a minimum period of one year, while for statutory sick leave a period of 13 weeks of continuous service is required. Indeed, the work-life balance directive does envisage a notice period for flexible working arrangements. I understand what the Senator is trying to do with this amendment, which is to introduce greater flexibility into the six-month minimum period of service for an employee. However, as the Senator said, the legislation only imposes a baseline standard and it is always open to an employer to go beyond that. In that context, this amendment is not necessary in this situation.

Pat Casey (Fianna Fail)
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Is the amendment being pressed?

Frances Black (Independent)
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Yes.

Frances Black (Independent)
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I move amendment No. 25:

In page 14, between lines 4 and 5, to insert the following:

“(4A) Subsection (4) shall not apply where an employer and employee agree to commence an employee’s approved flexible working arrangement prior to the completion of 6 months continuous employment with the employer concerned.”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Pat Casey (Fianna Fail)
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Amendments Nos. 26 and 27 have been ruled out of order.

Pat Casey (Fianna Fail)
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Amendments Nos. 28 and 29 are related and may be discussed together. Is that agreed? Agreed.

Frances Black (Independent)
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I move amendment No. 28:

In page 15, line 14, after “needs” to insert “, relevant to the functioning of his or her business,”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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Amendment No. 28 seeks to clarify in section 13C(1) that where an employer is considering a request for a flexible working agreement that he or she should have regard to as his or her needs only in so far as they are relevant to the functioning of his or her business. This may seem obvious but we know that penalisation happens in workplaces and the legislation needs to be crystal clear that, when it comes to approval of flexible work, the consideration of such a request must factor in relevant concerns.

Amendment No. 29 is an alternative to amendment No. 28 and also seeks to clarify in section 13C(1) that where an employer is considering a request for a flexible working agreement, he or she should have regard to his or her needs only in so far as they are relevant to the fulfilling of the employee's duties. This amendment has been tabled for the same reason as amendment No. 28, and is a necessary clarification.

Roderic O'Gorman (Dublin West, Green Party)
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The new section 13C to be inserted into the Parental Leave Act sets out the obligations on an employer to consider a request for flexible working and the process and time limits to be followed. The provision sets out that an employer must consider his or her own needs and the employee's needs. I appreciate that the amendment is seeking to add more detail to this point but there is a risk that we might inadvertently limit the consideration to an excessively narrow frame and that could actually end up disadvantaging an employee in some way.

The remote working provisions have been drafted to align with the flexible working provisions of the Bill, the language for which derives from the EU directive on work-life balance for parents and carers. The rights of the employee have already been further strengthened by the introduction of the statutory code of practice which employers will have to abide by. That code will be drafted by the Workplace Relations Commission, WRC, a key pre-legislative scrutiny recommendation. Further guidance on the decision-making process will be developed by the WRC in consultation with employer and employee representative groups and that will all be set out in the code of practice. For those reasons, I am not in a position to accept the amendment.

Pat Casey (Fianna Fail)
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Is the amendment being pressed?

Frances Black (Independent)
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Yes.

Frances Black (Independent)
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I move amendment No. 29:

In page 15, line 30, after “may” to insert “, where that employer has provided notice in writing of their rationale,”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Pat Casey (Fianna Fail)
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Amendments Nos. 30 and 31 are related and may be discussed together by agreement. Is that agreed? Agreed.

Frances Black (Independent)
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I move amendment No. 30:

In page 16, to delete line 42.

Paul Gavan (Sinn Fein)
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I second the amendment

Frances Black (Independent)
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Amendment No. 30 seeks to delete subsection 13E(1)(a) which refers to "seasonal variations" and provides that the termination shall only be valid for the period in which such seasonal variations occur and upon the conclusion of that period, the flexible working agreement shall resume. This amendment is to ensure consistency with amendment No. 31 which seeks to ensure that seasonal variations in work or business do not prevent flexible work arrangements from being agreed or that seasonal variations are not used as a reason to permanently end a flexible work arrangement where it would be appropriate to continue it outside the period of seasonal variation. Amendment No. 31 would provide that an employer may also terminate an agreement under subsection (1) where the employer is satisfied that the flexible 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 seasonal variations in the volume of the work concerned. However, the termination shall only be valid if the period in which such seasonal variations occur, and upon the conclusion of that period, the flexible working agreement shall resume. The amendment aims to ensure that flexible work agreements are not permanently ended due to seasonal variations.

Roderic O'Gorman (Dublin West, Green Party)
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These amendments seek to amend the process around termination due to seasonal variations in the volume of work. We had a good discussion about this with Senator Higgins on Committee Stage. I set out my view as to why these amendments are unnecessary at that point. The provisions of the Bill do not preclude employees from making a request for a follow-on flexible or remote working arrangement to commence once the period of seasonal variation concludes.

I would make two further points about these amendments which reflect the discussion we had on Committee Stage. I appreciate that the Senator is proposing that a flexible or remote working arrangement should automatically revert where it is terminated on account of seasonal variation in the volume of work.However, there are some circumstances where that automatic reversion could be to the employee's detriment. For example, where the employee finds the original pattern of work is working well for her or him and wishes to remain in that pattern. If a reversion to the flexible or remote working arrangement were automatic, then the employee would be forced to apply to revert to the original full-time pattern, with no guarantees. The Bill has been drafted in a way that gives employees the choice to make a request for follow on, flexible working, or remote working relation agreements should they so wish. In such cases where employers have already proven themselves amenable to flexible working by virtue of the fact they approved the initial arrangement, there is really no reason to believe they will not fairly consider a follow-on application.

In addition, where seasonality is a predictable part of the work cycle there is nothing to preclude an employer or employee from agreeing an approach as part of the flexible working agreement that recognises there will be some months where the flexible working agreement does not apply. For example, this can be built in for months like December because of the Christmas rush.

The second point relates to the assertion on Committee Stage that seasonal variations are being used in such a way as to make termination the norm. I want to be clear about this. The termination provision cannot be used for trivial reasons. I want that on the record. It can only be used where an employer is satisfied that the arrangement is either having, or would have, a substantial and adverse effect on the operation of the business. As part of this process, an employer is required to consider the needs of the employee as well as business needs when making a decision. They must abide by the code of practice. Employers must be able to stand over the reason for termination, including where the reason is for seasonal variation in the volume of work. They are required to provide the employee with written notice detailing the grounds. Employees have a right to make representations to the employer regarding an employer's proposal to terminate an agreement. They can also make a complaint to the Workplace Relations Commission, if they believe their employer has not fulfilled its obligations under this section. I do not expect to see a significant number of terminations for seasonal reasons. However, if it were to emerge as an issue when the legislation is in place, that can be looked at in the context of the review we know will be taking place.

Frances Black (Independent)
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I move amendment No. 31:

In page 17, between lines 18 and 19, to insert the following:

“(1A) An employer may also terminate an agreement under subsection (1) where the employer is satisfied that the flexible working arrangement would have, or is having, a substantial adverse effect on the operation of his or her business, profession oroccupation, by reason of seasonal variations in the volume of the work concerned, however the termination shall only be valid for the period in which such seasonal variations occur and upon the conclusion of that period the flexible working agreement shall resume.”

Paul Gavan (Sinn Fein)
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I second the amendment.

Pat Casey (Fianna Fail)
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Amendments Nos. 32 and 33 are related and may be discussed together by agreement. Is that agreed? Agreed.

Roderic O'Gorman (Dublin West, Green Party)
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As previously discussed the new subsection (13)(h) inserts a review clause for provisions under the new Part 2A of the Parental Leave Act 1998. We discussed this on Committee Stage. I know Senator Black was not here, but she was ably represented by her colleague on this issue.

I have brought amendments which make explicit in the legislation that the review will include a consideration of whether the right to request flexible working should be extended to all employees. When we brought in this legislation we wrote that remote working applies to all employees. Flexible working, which is broader than remote working and includes other elements, is for carers and parents as set out under the legislation. Some of the additionality provided for under flexible working could be very appealing to a lot of employees, particularly truncated weeks or more flexible working hours. As part of the agreement with the then Tánaiste and current Taoiseach, amalgamation of the two Bills to extend flexible work to broader categories will be explicitly considered as part of the review.

Emer Currie (Fine Gael)
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I thank the Minister for taking on board the extensive feedback he has received. It is good to see included here that the direction of travel could specifically be about all employees. The Minister knows where I stand on this. We have had a trial of remote working and we have heaped too much pressure on it as an option for all employees, when it does not work for all roles. This was an opportunity to balance that out and begin the change that is required in the work culture.

As part of any review and future work in this area, there must be assistance for employers with how they make this transition. That will be important if one is looking at a review and the numbers are not what one is expecting. Part of this is about education. Even though we have been through a trial period of remote working, I do not think there is enough information about operating flexibility and remote working as a culture in a business. We could do more in that area. However, it is obviously not what I want in an ideal scenario, but I want to recognise that the Minister has put this in and reflected a possible future direction of travel. I hope I will be here in two years to make the same case.

Roderic O'Gorman (Dublin West, Green Party)
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I hope the Senator is here too, and not in the other House. I wish her the best on retaining her seat in the Seanad for as long as she would like. That would make me very happy indeed, as she is my beloved constituency colleague.

It is important that we mark where we want to go, and that is where I want to go too. The point at which flexible and remote working interlock was agreed between the two Departments. I wanted to make sure we included this provision so we can flag where we would like to see the direction of travel move next.

The Senator is right about supports for employers. That is probably a better fit with other Departments, particularly the Department of Enterprise, Trade and Employment, and their ability to deliver those and their engagement with employers. It is also potentially the case across parts of the Department of Social Protection. However, this review will be important. There is a lot of innovation in this legislation. Five new employee rights are being provided in this legislation. If we look at each element the range of new rights is really positive. However, it is important that we look at how each of the five is operating and try to strengthen them further.

Pat Casey (Fianna Fail)
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Government amendment No. 33:

In page 19, lines 21 to 23, to delete all words from and including “and” in line 21 down to and including line 23 and substitute the following:

“and may, as part of the review, consider whether the right to request a flexible working arrangement should be extended to all employees.

(2) The Minister shall prepare a report in writing of the findings of the review conducted under subsection (1) and shall cause copies of the report to be laid before each House of the Oireachtas.”.”.

Pat Casey (Fianna Fail)
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Amendment No. 34 in the name of Senators Keogan and Craughwell has been ruled out of order.

Pat Casey (Fianna Fail)
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Amendments Nos. 35 to 37, inclusive, and amendment No. 40 are related and may be discussed together by agreement. Is that agreed? Agreed.

Roderic O'Gorman (Dublin West, Green Party)
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There was a significant discussion on Committee Stage about some of the GDPR provisions. I reflected on the points made by Senator Higgins. I was unable to accept her amendments then and I am not in a position to accept the amendments she will be putting forward today. However, I have tried to go some way in addressing some of the GDPR issues she raised, particularly issues pertaining to the retention of information.

Section 15 of the Bill amends section 27 of the Parental Leave Act 1998, which provides for the retention of records to be held by an employer in respect of the forms of leave and entitlements under the Act. Section 15 provides that records relating to leave for the purposes of medical care, and the right to request a flexible working arrangement, should be held for three years only. The requirements of the GDPR regulation are that third party data should only be held for as long as necessary. Anything in extension of this period could be in breach of those regulations. There is an obligation on the employer to destroy records.

This amendment is a technical amendment to include an explicit provision to provide that records relating to domestic, sexual and gender-based violence, DSGBV, leave be held for three years. I recommend the amendment be accepted.

Paul Gavan (Sinn Fein)
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We support this amendment but we are a little disappointed with the period of eight years. We believe it should be reduced. I cannot quite see the logic of eight years; three or four would be a much more appropriate figure. It is a reduction so we will support it, but we are a little disappointed.

Roderic O'Gorman (Dublin West, Green Party)
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We believe that eight years is a correct assumption. We looked at the situation and had a previous discussion with Senator Higgins regarding it. We believe the figure we arrived at for the number of years is a fair balance.

Pat Casey (Fianna Fail)
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Amendments Nos. 38 and 39 are related and may be discussed together by agreement. Is that agreed? Agreed.

Frances Black (Independent)
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I move amendment No. 38:

In page 23, line 29, after “years” to insert “or when the employment ceases”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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Amendment No. 38 seeks to include, as part of the proposed amendments to section 29 of the principal Act, a provision that where records of medical leave are kept, as well as the three-year limit for the retention of such records, they shall be destroyed when employment ceases, whichever occurs earlier. As such records are likely to contain sensitive information, it is important from a data protection viewpoint that sensitive information on former employees is not retained.

Amendment No. 39 seeks to include, as part of the proposed amendments to section 29 of the principal Act, that where records of approved flexible working arrangements are kept, as well as the three-year limit for the retention of such records, they shall be destroyed when employment ceases. This amendment has been tabled for the same data protection-related reasons as amendment No. 38.

Roderic O'Gorman (Dublin West, Green Party)
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We reflected on this and sought legal advice on it. I asked my team to consider whether we would table an amendment to take account of the position outlined by Senator Higgins. It was very much the view that the requirements of the general data protection regulation, GDPR, mean an employer must destroy records when it no longer has a legal basis for holding them. That is now the position under EU and domestic law. We believe that is the position that will apply under this legislation.

It is also worth saying there is at least a possibility that compelling destruction after a certain time may disadvantage an employee who left the workplace, particularly if he or she sought to take a workplace relations action against the employer. For example, if an employee is fired or leaves employment, under the provision the Senator is bringing forward, the employer is immediately obliged to destroy the relevant records and, therefore, some records will be missing in respect of a potential workplace relations case. I know the Senator is not suggesting this, but it could be a godsend to bad employers if they have to destroy employee records as soon as employees are dismissed. We will use the GDPR provisions, which are the recognised provisions.

Frances Black (Independent)
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I move amendment No. 39:

In page 23, line 31, after “years” to insert “or when the employment ceases”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Pat Casey (Fianna Fail)
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Amendments Nos. 41 and 46 are related and may be discussed together by agreement. Is that agreed? Agreed.

Roderic O'Gorman (Dublin West, Green Party)
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This is a very technical amendment to reflect the title of the relevant Minister, namely, the Minister for Public Expenditure, National Development Plan Delivery and Reform.

Pat Casey (Fianna Fail)
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Amendments Nos. 42 and 43 are related and may be discussed together by agreement. Is that agreed? Agreed.

Frances Black (Independent)
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I move amendment No. 42:

In page 28, to delete line 7.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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Amendments Nos. 42 and 43 seek to address a similar issue to amendments Nos. 30 and 31. They require that where a termination of a remote working agreement occurs due to circumstances described in section 22(1)(a), that is, seasonal variation, the termination shall only be valid for the period in which such seasonal variations occur and, upon the conclusion of that period, the remote working agreement shall resume. These amendments are to ensure that seasonal variations in work or business do not prevent remote working arrangements from being agreed or that seasonal variations are not used as a reason to permanently end a flexible work arrangement where it would be appropriate to continue it outside the period of seasonal variation.

Roderic O'Gorman (Dublin West, Green Party)
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The proposed amendments are quite similar to those we discussed. I will make similar points regarding them. Seasonal variation can be built into a flexible working arrangement and very much form part of that. There may be situations where it disadvantages an employee to immediately revert to the original arrangement. I do not share the Senator's concern that seasonal variations will be used as an excuse to terminate a flexible working agreement. The criteria clearly set out the circumstances in which a termination can take place. If it seems that is being misused, we have provided for a review within two years where we can tighten it up. Again, I do not think it will be necessary.

Frances Black (Independent)
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I move amendment No. 43:

In page 28, between lines 19 and 20, to insert the following: “(2) An employer may also terminate an agreement under subsection (1) where the employer is satisfied that the flexible 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 seasonal variations in the volume of the work concerned, however the termination shall only be valid for the period in which such seasonal variations occur and upon the conclusion of that period the flexible working agreement shall resume.”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Pat Casey (Fianna Fail)
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Amendment No. 44 has been ruled out of order. It does not arise out of committee proceedings.

Frances Black (Independent)
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I move amendment No. 45:

In page 34, line 31, after “her” to insert “or their”.

Paul Gavan (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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I welcome that section 34 seeks to be trans inclusive in respect of breast-feeding provisions. However, in the proposed amendment to the definition of an employee who is breast-feeding as outlined in section 2(1), I propose the word "their" is inserted after the pronoun "her" in order to ensure the definition as well as the intention of the section is trans inclusive. I would appreciate it if the Minister could accept this relatively simple amendment as it would ensure we are being consistent in our approach as regards both policy and language when it comes to trans inclusivity.

Roderic O'Gorman (Dublin West, Green Party)
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I share the objective in ensuring what we do is trans inclusive. It is important, however, we understand the Interpretation Act we are bound by. The legislation must be read in accordance with the provisions of the Interpretation Act. That allows us to read this provision in a way that is trans inclusive. It is particularly the view of the Parliamentary Counsel, from which we have to take advice, that an amendment of this nature is not necessary in light of the Interpretation Act.

Pat Casey (Fianna Fail)
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When is it proposed to take Fifth Stage?

Mary Seery Kearney (Fine Gael)
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Now.

Pat Casey (Fianna Fail)
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Is that agreed? Agreed.

Pat Casey (Fianna Fail)
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When is it proposed to sit again?

Erin McGreehan (Fianna Fail)
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Next Tuesday at 12.30 p.m.