Friday, June 26, 2020
We will shortly find out if the Fine Gael–Fianna Fáil–Green Party coalition is going into government together. Obviously this is a historic development in Irish politics and no doubt all citizens await developments with great interest.
Of particular relevance for employers is what the programme has to say on the subject of employment law. There are a number of different references to employment law in the document and it’s interesting to consider these.
1. Remote working – the concept of remote working receives particular attention in the programme and is referenced several times.
Interestingly, a target of 20% remote working has been set for the public service in 2021; in other words, it is intended that one-fifth of the public sector workforce will be working from home next year.
Obviously COVID-19 has had a transformative effect in terms of remote working in both public and private sectors. While it is still probably too early to tell for sure, it is highly likely that we will never return exclusively to the old model of office–based working.
Many multinational companies have already indicated that their staff will not be returning to the office until 2021 at the earliest – and there is every possibility that remote working will increase in the future.
The programme makes a number of commitments.
While it may have been thrust upon us by COVID-19, there is no doubt that remote working is going to figure prominently on employer radars for the foreseeable future.
Implementation of measures in relation to remote working is therefore likely to be one of the most likely aspirations in the programme that will actually come to fruition.
2. The programme also places some emphasis on “better work–life balance”. Interestingly, the parties have indicated that they intend to bring forward proposals on a “right to disconnect” in 2020 and are planning a Workplace Relations Commission code on this subject.
The “right to disconnect” is something that has attracted a great deal of attention in recent years – in particular, an initiative by the French government in 2017. The French Labour Code now provides that employers must honour an employee’s “right to disconnect”: an employer must establish mechanisms for “regulating the use of digital tools” to ensure respect for rest periods and leave, as well as personal and family life.
The topic is also an interesting one – but the manner in which changes might be implemented is unclear. Obviously the “right to disconnect” takes on much greater significance in the context of remote working and COVID-19. Employers are likely to have to deal with remote working on an ongoing basis for the reasons set out above. At a minimum, it may be more difficult for employers to monitor the hours that employees are working where they are not physically present in an office.
As always, the devil is in the detail. It is not entirely clear what the government intends to do on the subject of work–life balance; the reference in the programme being largely aspirational.
One critical point to note is that Irish employees already benefit from legal protection in relation to work–life balance. The Organisation of Working Time Act, 1997 makes it clear that an Irish employee (except in certain very limited circumstances) cannot be compelled to work more than 48 hours on average in any working week.
It is highly likely, if not inevitable, that in reality employees frequently exceed the threshold. Putting an additional measure in place in relation to the “right to disconnect” is unlikely to change that (and it should be noted that legislation underpinning the :right to disconnect: is not contemplated – the height of the parties’ proposals appears to be a WRC code).
On a practical level, the introduction of a code is unlikely to have any kind of significant effect by itself. In reality, only two concrete alternatives exist to deal with any perceived work–life balance problem. The first is stricter implementation of the thresholds in the 1997 Act. The second is cultural change – a commitment on the part of employers to observe work–life balance more rigorously.
One interesting side–effect of COVID-19, of course, is the fact that any employee who is working remotely is already going to have more time free. Travel time has largely been eliminated for example: an employee who is working remotely obviously has to spend very little time travelling to work.
3. There is also a concrete commitment to extend paid parental leave. At present, parental leave has a duration of 26 weeks – a parent is entitled to take up to 26 weeks of parental leave to spend time with a child up to 12 years old (and the threshold increases where a child is suffering from a disability or a long – term illness). Parental leave can be taken in a continuous block or in short blocks.
An increase in the level of parental leave is in line with a general move in recent years to implement family – friendly measures in law including Paternity Leave and, most recently, Parents Leave. This is another of the parties’ proposals that stands a decent chance of becoming law.
4. Lastly, there are a number of initiatives in the programme which clearly arise from the Coronavirus. They include:–
(a) Implementing a Recovery Fund to support the economy and help restore employment. This fund will be for the purpose of investment in infrastructure, training/reskilling and other investment to assist Irish businesses;
(b) Creating 200,000 new jobs by the end of 2025;
(c) The implementation of an upscaling and reskilling programme to assist workers from sectors unlikely to return to full capacity to avail of opportunities in other “more sustainable” sectors; and
(d) An updated Apprenticeship Action Plan to consider apprenticeships (which will include specific targets for uptake of apprenticeships by women, people with disabilities and disadvantaged groups).
For further information on this article, please contact Patrick Walshe.