Proposed legislation on remote working, branded "useless" and "a missed opportunity" by trade unions – and objected to in principle by employers' body Ibec – should have been the subject of better consultation before being published, the Oireachtas enterprise committee heard on Wednesday.
Irish Congress of Trade Unions (Ictu) general secretary Patricia King, who described the proposals put forward by Minister for Enterprise Leo Varadkar in January as "pointless" with "nonsense" provisions, said it was "an awful pity" there had not been more engagement on the issue.
Ms King said Ictu had put forward its views in favour of legislation giving the right to request remote working through the Labour Employer Economic Forum.
They had a “general discussion” with the Minister on three occasions through the forum and had taken part in a public consultation, but there had been no disclosure about what would be in the heads of Bill.
“When we saw it, it was the first outing we had in terms of what they intended in this, and that’s why it was so disappointing,” said Ms King, addressing the committee as it continued its scrutiny of the Right to Request Remote Work Bill.
The Ictu general secretary said both trade unions and employers had previously been consulted separately on particular aspects of other proposed legislation, citing conversations held about employers’ use of zero hours contracts ahead of the Employment (Miscellaneous Provisions) Act 2018.
“We had hours and hours and hours of discussions on that. We didn’t get them to accept everything we wanted them to, but at least we had engagement, and I think it’s an awful pity that the opportunity wasn’t given on something as important as this proposed piece of legislation,” Ms King said.
“I think the Bill would have been much more fit for purpose had we done that.”
Department response
In response, the Department of Enterprise said consultation on the legislation had been “conducted in the usual way” and noted that the public consultation had attracted 175 submissions from “a diverse range of stakeholders” including trade unions.
“The new law, which will be the first of its kind in Ireland, is now going through pre-legislative scrutiny, which is a further opportunity for consultation,” it said.
“The Tánaiste has said several times, including in an interview today, that he has a ‘listening ear’ on the legislation and is open to changes, especially on provisions relating to the number of reasons to reject a request and the mechanism for appeal.”
Mr Varadkar said in February that he was open to amendments that would make the Bill “fit for purpose” and indicated that the final legislation will make clear that the grounds for appeal on a refusal of a request are “not just a procedural right” and that the reasons for an employer’s refusal “will have to stand up”.
The department said on Wednesday that requiring all employers to have a policy on remote and hybrid working, as well as giving workers the legal right to request it, was “among the strengths” of the proposed law.
The draft Bill lists 13 business grounds on which employers can refuse a request, including what Ms King referred to as the “mere assertion that remote working is not suitable to the needs of the business”. It also uses the phrase “include but are not limited to” before specifying the 13 grounds, which Ictu argues would render the right to request meaningless.
Employees working for non-progressive employers are afraid to come forward and request the right to remote work because they believe they will be refused and the legislation, as currently drafted, “is not going to make that fear any less”, Ms King said.
Also addressing the committee, Ibec director of employer relations Maeve McElwee said the legislation was “premature” and outlined the organisation’s position in favour of a more “flexible” code of practice instead.
More employers are now recognising the benefits of remote working, she added.
“In a tight labour market, employees do have a lot of options and employers very keen to recruit and retain talent have seen the opportunities. Very few employers, I would say, see the opportunities of fully remote working, but they do see great opportunity around hybrid and blended working in the longer term,” Ms McElwee said.
“We’re definitely seeing significant moves, where it is practicable and sensible to introduce more remote working.”
Ibec is concerned about what it said would be a “disproportionate” impact on small businesses of some aspects of the Bill, as well as an absence of clarity on work-related accidents in the home, and workplace confidentiality and data security issues arising from remote work.
‘Less than ideal’
With public health paramount during the past two years, many such issues have not been dealt with, Ms McElwee said.
“Employers, and indeed employees themselves, have tolerated situations that are much less than ideal, that have certainly created significant risks for employers over a period of time.”
While Ms McElwee said a statutory code of practice linked to legislation could have “significant standing”, Ms King said Ibec was “clear” that a code of practice was not the answer.
If a case came before the Workplace Relations Commission and an employer was told they had not complied with a code of practice, if it suited them, they would simply respond that they were not obliged to do so, Ms King said.
Former minister for enterprise Richard Bruton, a member of the committee, said it was "disappointing" to find that the two sides were "so far apart" on the issue, with Ibec saying that no legislation should be considered at all, and Ictu saying it was useless.
Mr Bruton said he welcomed the publication of the legislation. “I think introducing it swiftly is the right thing to do.”
