Opening statement by Patricia King, General Secretary, Irish Congress of Trade Unions to the Joint Oireachtas Committee on Enterprise, Trade and Employment
On behalf of the Irish Congress of Trade Unions, I would like to thank the members of the Committee for their invitation to input into your pre-legislative scrutiny of the Right to Request Remote Working Bill 2022, which is intended to deliver a new workers’ right. I am accompanied by my colleague, Dr. Laura Bambrick.
While most jobs require a physical presence in the workplace, as many as one in four workers in employment worked from home during the first lockdown. Remote working has now moved into the mainstream of workplace issues.
For the vast majority of these workers and their employers this was their first experience of remote working and while it was challenging for some, in the main it has proven to be a success and there is now a big demand to make this temporary arrangement permanent.
Remote working has been shown to improve workers’ quality of life and their wellbeing. It can benefit the environment and rural regeneration. It makes good business and economic sense too. Studies repeatedly find that most employers report that productivity either increased or stayed the same over the past two years.
That is why the Irish Congress of Trade Unions and its affiliates were first to call for legislation on requesting remote work in summer 2020, bringing us into line with long-established employment law in most EU member states, the UK, Australia and New Zealand.
While employees in Ireland have always had a right to ask to work remotely, they have no right to be heard, or for their request to be given proper consideration, or to appeal a decision. This legislation is intended to end the situation were a request can be ignored by the employer or dismissed out of hand for no good reason.
However, as we have detailed in our written submission to the Committee (see here https://bit.ly/34RUR8R), the draft bill is stacked in favour of the employer at every turn and is fatally flawed in key parts. It won’t deliver what we campaigned for or what it is intended to provide - robust legislation guaranteeing fair procedure and balancing the employer and employee needs.
In the brief time I have available for my opening remarks, I will concentrate on the grounds for refusal and the grounds for appeal, which significantly impair the usefulness and effectiveness of the entire statutory scheme proposed.
Head 12 of the bill provides that the employer can decline a request for remote working if they are satisfied that it is not suitable on “business grounds”. 13 examples of grounds they may "include but are not limited to” are listed.
The Head is explicit on this point. The Explanatory Note states that:
‘the phrase “including but not limited to” is intended to ensure that the list provided does not fetter or confine the definition of business grounds …. The list provided is intended by the Department to be purely indicative and not limiting or binding.’
In essence, the employer continues to be able to refuse a request on any grounds they choose that relate to the business, including a mere assertion that remote working is not suitable to the needs of the business.
In the UK, the Department of Business, Enterprise, and Industrial Strategy are in the process of completing a consultation reviewing their flexible working legislation, including whether the eight business reasons an employer can reject a request remain valid. Six of these eight reasons are duplicated in the 13 examples cited in the draft bill.
Despite a statutory right to request having been in place for all employees in the UK since 2014, it has not brought about the changes intended. The proportion of employees doing no form of flexible working has changed by a mere 4 percentage points, from 74% to 70%, between 2013 and 2020.
We must learn from the UK’s policy mistake and grasp our late mover advantage.
ICTU and affiliates are recommending that a refusal must be justified on objective grounds that relate to the real needs of the business and are appropriate and proportionate having regard to all the circumstances of the business and the employee.
Head 16 of the Bill confers the employee with a “right to appeal” whereby a complaint can be made to the WRC on the following grounds:
- The employer has failed to return a decision within the timeframe in compliance with Head 10.
- The employer has failed to provide a notice of the grounds for refusal in compliance with Head 12.
- An employer’s notification under Head 9 was given in circumstances that did not satisfy the requirements of Head 9(1) or (2).
A major omission from this Head is any provision that provides that an Adjudication Officer can hold that a refusal of a request under the Act is unreasonable or was not justified on objective grounds, or was not proportionate in all the circumstances.
But the Head is explicit on the grounds for appeal. The Explanatory Note states that:
‘For the avoidance of doubt, it is noted that the right to make a complaint to the WRC under this Head is not intended to extend to a right to complain in respect of the substance or merits of an employer’s decision to decline a request under Head 12(1). The right to complain only extends to a failure to effect notice of the reasons grounding that declination as required under Head 12(2).’
In effect, the proposed legislation will only allow for a complaint to the WRC on procedural grounds.
ICTU and its affiliates are strongly of the view that an appeal to the WRC taking issue with the substantive decision of the employer must be provided. Without this, the proposed legislation is utterly pointless.
Furthermore, there is no provision for a complaint that an employee was penalised, victimised or discriminated against as a result of having requested, appealed or engaged in remote working.
It should also be noted that the proposed limit of 4 weeks' pay, by way of compensation, is wholly inadequate and out of line with the limit of 104 weeks that is available under existing employment legislation.
In closing, it is important that I correct the conventional wisdom that businesses are ahead of Government on this and have or are in the process of putting in place company policy on remote and blended working arrangements.
This does not tally with what we are hearing from union representatives on the ground. Their experience is of employers reluctant to engage until this legislation is enacted.Indeed, only last week, an employer seeking advice from a legal column in a national newspaper on their obligation to office-based employees requesting to continue remote working was told, I quote: “I recommend you wait until the legislation comes into being before making a decision.”
ICTU and affiliates are urging this Committee and all members of the Oireachtas to work with trade unions and Government in getting this legislation fit for purpose and enacted without delay to ensure that the gains from remote working are not lost.
I would like to thank you for your attention and we are happy to take any questions.
