Amendments Nos. 1 and 2 have been ruled out of order, as there is a potential charge on revenue.
Gender Pay Gap Information Bill 2019: Report and Final Stages
Amendments Nos. 3 and 12 are related and may be discussed together.
I move amendment No. 3:
In page 4, between lines 24 and 25, to insert the following:
“(ix) a gender breakdown of full time employees;
(x) a gender breakdown of part time employees;
(xi) a gender breakdown of employees with a flexible working hours contract;”.
Amendments Nos. 3 and 12 are similar and relate to structural inequalities in the workplace. We need to provide for a gender breakdown of full-time and part-time employees and those with flexible working arrangements.
Amendment No. 3 provides for the additional reporting of this information by employers. Amendment No. 12 seeks to strengthen the legislation by making provision for the gathering of data on part-time and full-time workers and those on flexible working hours. It is important that we should take the opportunity to make provision for this breakdown of information.
I am pleased to engage with Deputies on this significant legislation. I acknowledge the work done by the former Minister of State, Deputy Stanton, in bringing the Bill this far.
I thank Deputy Funchion for her amendments, which seek to provide for a gender breakdown of information on various categories of employees. However, I have real concerns that providing that type of breakdown may lead to individual employees being easily identifiable within workplaces, particularly smaller workplaces. The amendments would potentially be at odds with section 20A(8) of the Employment Equality Act 1998, as set out in section 2 of the Bill, which provides that regulations may prescribe measures to be taken by the employer or the person who has access to the information to ensure personal data have undergone pseudonymisation before or when they are released. Pseudonymisation has the meaning assigned to it by Article 4 of the general data protection regulation, GDPR. It refers to the processing of personal data in such a manner that the data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure the personal data are not attributed to an identified or identifiable natural person. In a situation where there is a small number of one category of persons in a workplace, it is very likely that the publication of the information proposed in the Deputy's amendments would make those people individually identifiable.
I acknowledge that the Deputy is concerned that women may make up the majority of part-time workers, which could be a contributory factor in their being lower paid. However, there are measures proposed in the legislation that allow us to delve into the information that is provided by each company about the gender pay gap, which is the basis of this Bill. I draw the Deputy's attention to section 20A(9) of the 1998 Act, as inserted by section 2 of the Bill, which provides that regulations may be made requiring publication of the percentage of each pay quartile who are men and women. For example, information may be provided on what percentage of the highest hourly paid 25% of employees are men or women. That sort of information is less likely to identify individuals and provides a more detailed and texturised level of background information regarding the origin of a gender pay gap within a particular employer. This is the better way to go because it avoids the potential, in a small workplace, that the categorisation the Deputy proposes in these amendments could give rise to the singling out and identification of certain individuals, which would mean their pay information could become known.
With respect, I disagree with the Minister. The reason for this legislation is that women are already discriminated against in many workplaces. Many people do not believe it still happens in 2021 but there are a huge number of workplaces where a woman is paid less than a man for doing the exact same job. Women are already discriminated against in this regard and I do not accept that my amendments would somehow lead to further discrimination because they are being identified by gender. That is already happening. These provisions would give us an opportunity to obtain data for further research and further possible legislation. It will be a missed opportunity if the Minister does not accept the amendments.
We absolutely accept there is a gender pay gap. That is why we are bringing forward this legislation. There is no question about that. The most recent EUROSTAT figures indicate it is 14.4% in Ireland. That is not acceptable and these provisions are designed to address it. We all accept that the Bill will not solve everything but it will, for the first time, provide for a structured and steady flow of information on what is happening in individual employers.
To clarify, I am not at all suggesting that the Deputy's amendments would bring in additional discrimination. I am saying that by bringing the categorisation under which each individual employer must report down to very small levels within a workplace, there is a risk that individual employees may be identified. The whole tenor of the legislation is not to allow individual employees to be singled out. That is my concern with the Deputy's amendments. The additional information in terms of what creates the gender pay gap in a particular workplace can be teased out through some of the other reporting requirements that are set out in the legislation.
The Irish gender pay gap is 13.9% and it is estimated that at the current pace of change, it would take 55 years to close it. The gap is experienced most acutely by older women, women from ethnic minorities and women with disabilities. Pay transparency is an internationally recognised tool to help reduce pay gaps. It will ensure employees have access to the information necessary for them to be able to enforce their right to non-discriminatory pay. It will also help to shed light on informal pay systems and pay negotiations and variable wage practices such as bonuses, all of which contribute to wage gaps.
This legislation can and must be made stronger if it is do everything possible to close the gender pay gap. We know women are disproportionately represented in low-paid and precarious employment and spend fewer hours on average in paid work than men do. The specific provisions in Deputy Funchion's amendments to allow for a gender breakdown of full-time and part-time employees and those on flexible working hours will provide the type of detail needed to get a fuller picture of the issues. This will help to identify work practices and cultures that lead to women disproportionately holding other than full-time roles. I urge the Minister to accept the amendments.
I move amendment No. 4:
In page 4, line 32, to delete "(if any)".
This amendment might be referred to as a technical amendment but its purpose is to address a particular instance of the language used in the Bill. It is extremely important that any vague language be removed and the onus be firmly placed on employers to reduce gender pay gaps within their organisations. I reiterate that this legislation is a step in the right direction and an important measure. However, we must do everything we can to strengthen it and get it exactly right, rather than just having a box-ticking exercise. Unfortunately, that seems to be the case with a lot of measures, particularly those that affect women.
We are discussing these provisions at almost 11 p.m. at night. When we had a debate some weeks ago on International Women's Day, it was one of the matters of business at the very bottom of the agenda on a Thursday evening. If this House is serious about dealing with issues that affect women, we need to put those issues properly on the agenda. There is no point in asking us to make submissions on family-friendly practices in the Houses of the Oireachtas when debates in the House on issues affecting women are pushed out almost to midnight.
We are just as guilty of ticking the box as other organisations. I just wanted to make that point.
I agree with everything Deputy Funchion just said. Amendment No. 4 is entirely sensible. It removes ambiguity and ensures that employers must be serious about addressing any wage gap. It would require employers to set out the measures they are taking to address wage inequalities. If, in the context of this legislation, we are to be serious about addressing the wage gap, employers should be required to state how they will address gender-based discrimination. The Government needs to accept this amendment.
The gender pay gap in Ireland is 14%. This means that women in Ireland are effectively working for free for a quarter of the year. That might make sense if women did 14% less work, worked 14% fewer hours or put in 14% less effort, but we all know that is not the case. In fact, it is often acknowledged that women have to work twice as hard as their male counterparts to get noticed in work and to progress their careers. The bottom line is that we all know that the gender pay gap is not a gap. It is a gaping injustice. It is a reflection of how we value men and women in society but it is not a reflection of the value that women bring to the workplace. We all want a fairer and more equal economy that rewards work and not gender. Working to close the gender pay gap is the very first step towards pay parity. Once implemented, this Bill will require large employers to publish details of their pay gaps, including bonuses. It will also mean that Departments and Government agencies will have to report on their own gender enforcement and gender pay gaps. They will have to take greater responsibility for enforcing the recommendations of the Irish Human Rights and Equality Commission. That is so welcome and so long-awaited. Publishing gender pay gap information might seem like a small step but it forces businesses and business owners to do the work, to acknowledge the problem, which is sometimes under their own roof, and to confront the inequalities in their businesses. It is not as easy to ignore issues when you are forced to confront them. Publishing pay gaps is a first step towards pay parity. I for one look forward to the day when slogans like "equal pay for equal work" are no longer needed. I welcome the Bill as proposed to the House.
I am glad to have the opportunity to contribute to the debate on Deputy Funchion's amendment. I have seen in multiple organisations examples of two solicitors doing the same job in an in-house commercial firm where it was only by accident that the woman found out she was doing the exact same job on a different side of the business as the man for 25% less pay. I recall a similar situation in another professional services firm: two people doing the same job. He was doing it for €70,000 and she was doing it for €58,000. She was doing a much better job, and she knew it, but at least she knew about the pay gap and found ways to try to get around it. Part of the difficulty in being effective about redressing the gender pay gap is the culture of organisations, the lack of openness and transparency and the difficulty women face in trying to articulate the unfairness of doing the same job on a different pay scale without that then following them culturally through an organisation, particularly when there has been a history of that within the organisation. It is difficult for women in senior positions, including senior commercial positions, to try to articulate what is already a matter of law and just a matter of basic fairness. There is a reluctance to highlight it, even though they know they can and even though they know their organisations are liable in employment law. They still are reluctant to highlight it for fear of being seen as a nuisance or as being difficult and for that to follow them.
This legislation is really important, but it is about the follow-through and cultural change. It is not just about the reporting of any pay gap. It is about making it really serious that these cultural changes are necessary, making it easier for women who find this out and who are aware there is disparity, not only in pay but also in work. It is a matter of really being able to articulate that comfortably and as a matter of course within their organisations without fear of it following them around.
I, too, support the Bill. Reducing the gender pay gap is one of the key priorities of gender policies both at EU level and here in Ireland. We must ensure businesses publish information relating to the remuneration of their employees by reference to gender in order that we can monitor this. These measures, which take into account the impact of the Covid-19 pandemic on both employers and women, who have been hit particularly hard, will increase awareness about pay conditions within companies and give more tools to employers and workers to address this pay discrimination at work. This will address a number of factors contributing to the existing pay gap and is particularly relevant during the Covid-19 pandemic. Anyone doing any work deserves to be paid for that work at the same rate as anyone else doing the same work, regardless of gender. It is important that pay scales are transparent and that women can fight for what is their right when they are given knowledge that exposes unfairness. We need to make sure this information is as transparent as it can be. This is so important. I am delighted to support the Bill.
I thank Deputies for their support for the legislation. I agree with Deputy Funchion's comments on the very significant distance the Houses of the Oireachtas have to go towards a family-friendly and particularly a gender-friendly system of work.
To refer specifically to Deputy Funchion's proposed amendment, it seeks to delete the words "if any" in respect of the publication of reasons in the employer's opinion for any gaps and of the measures, if any, that an employer is taking or proposes to take to eliminate or reduce these gaps. The use of the term "if any" provides for circumstances in which no measures can be taken by a particular employer to eliminate or reduce the gender pay gap in their particular situation. This may be due to segregation in education and the overall labour market, whereby women are under-represented in certain sectors of the economy. These are policy issues which cannot be addressed by the individual employer but must be examined on a sectoral basis and will probably require Government intervention to address. Indeed, the whole purpose of this Bill is to allow us to identify these situations more easily and more readily. This is exactly what the Bill is about. It is about providing the information on where there are certain sectors of the economy where there is that gender pay gap, looking not only at its size but also at its origins and giving the government of the day the relevant information that it can use to respond. It will be possible in many cases for the employer to pursue positive action measures that are within the law and which will increase the number of women in more highly remunerated roles in that particular firm. However, the legislation recognises a reality in including the words "if any". The text recognises a reality that in certain situations the solution to the gender pay gap may not always be in the gift of the individual employer but may require wider and co-ordinated State action. On that basis, it is my view that we should leave that phrase in. As a result, I do not propose to accept Deputy Funchion's amendment.
Amendments Nos. 5 and 9 are related and may be discussed together.
I move amendment No. 5:
In page 4, line 39, to delete “50 employees” and substitute “20 employees”.
I will make my points about these amendments and two others together.
Regarding amendment No. 5, the latest CSO business demographic figures show that approximately 50% of workers in the State are employed in smaller microbusinesses with fewer than 50 employees. If we are to get a true reflection of the real gender pay gap in the State, we need to make provision for this large employee base in the Bill. This is why Sinn Féin believes that the number should be reduced. The Bill refers to "50 employees" but we propose that the figure should be reduced to 20.
Amendment No. 6 is very similar to amendment No. 5 and is part of the Government's proposed staggered roll-out period between various-sized organisations. We would like to see the figure of 250 reduced to 150 to apply on the second anniversary of the legislation. Amendment No. 7 follows on from that. We are opposed to the provision that allows an organisation of 250 employees to avoid the legislation until its second anniversary. We believe that organisations with a smaller number of employees should be required to fulfil their duties within 12 months of the Bill coming into effect.
When these kinds of laws are changed, I know it can be difficult for smaller businesses. However, there is no excuse for one employee to be paid less than another based on their gender. Irrespective of how many employees an organisation has, that is not acceptable. It is not a case of a smaller employer having a difficult financial situation. It is never acceptable for a woman to be paid less than a man doing the same job. I do not believe there should be any sort of get-out and that is why we are proposing this amendment.
Regarding amendment No. 8, we strongly believe that organisations with 150 employees or more must be reduced to 50 so that a full picture emerges of disparity and gender pay gaps. Regarding amendment No. 9, we believe that the third anniversary is too long before this legislation must be adhered to by businesses and that 18 months is sufficient for an organisation to put in place the necessary provisions to begin correlating this important data.
I again reiterate that we should not need to have legislation on gender and pay. People should already be able to ensure they are paying their employees fairly and it should not be based on gender. However, if we are to have legislation, it needs to be robust. It is important that there are no get-out clauses.
I support the amendment. The Minister outlined the significance of the Bill and the positive impact it will have on wage equality. Surely we want to ensure that it comes into effect as soon as possible. The Bill currently allows an employer with fewer than 250 employees two years to adhere to the regulations and an employer with fewer than 150 employees three years. We all expect an adjustment period; that is absolutely fine. However, these are excessive especially given that the Bill was initiated more than two years ago and it will likely take some months before the regulations are made. Employers and the Department have known this is on the way. There is no need for such a prolonged lead-in. We should work towards greater equality as soon as possible.
I understand why the Deputy is trying to expand the reach of this legislation and the speed at which it will apply. However, it is important for the House to recognise the reasons it is designed in this way. The incremental application of the reporting requirement is deliberate and is based on consultations that were undertaken with both unions and employer representative groups. There was significant engagement across an 18-month period. There were written submissions, a symposium and then direct engagement with the employer and employee stakeholders. It was agreed to have the approach outlined here to allow smaller companies the time to learn from larger companies that have the capacity to undertake and publish the wage surveys already. Therefore, the regulations apply to those larger employers immediately and subsequently to smaller employers.
The Bill creates a significant new obligation for employers and it is important that they are supported in the implementation of this process. We want employers to recognise the gender pay gap in their organisations and take steps to address it. We believe it is counterproductive if employers are at risk of breaching their obligations simply if we try to accelerate the relevant timeframe.
I also draw the Deputy's attention to amendment No. 16, which shortens the time period for the review of the legislation from what was originally five years to now four years. We will hopefully have the opportunity to discuss it in more detail when we reach that amendment. That four-year period will give the opportunity for the first full cycle of reporting across this legislation. Many Bills these days contain a review-and-reporting clause and it is important for this legislation to have it.
However, I think the five-year period was probably too long. We are doing something new and innovative here. It is important that we take the opportunity to review it to see if it is functioning effectively and delivering a significant improvement in the gender pay gap. That is why I am proposing to reduce that from five years to four years. At that point, we will have the opportunity for a wider consideration of the impact of the legislation as it has operated. I do not propose to accept the amendments.
I feel I have said everything I want to on those amendments.
I move amendment No. 6:
In page 4, line 41, to delete “250 employees” and substitute “150 employees”.
I move amendment No. 7:
In page 5, line 1, to delete “2nd anniversary of” and substitute “12 months following”.
I move amendment No. 8:
In page 5, line 4, to delete “150 employees” and substitute “50 employees”.
I move amendment No. 9:
In page 5, line 5, to delete “3rd anniversary of” and substitute “18 months following”.
I move amendment No. 10:
In page 5, between lines 21 and 22, to insert the following:
“(4A) Regulations made under this section will apply to legal partnerships and multi-disciplinary practices as defined in the Legal Services Regulation Act 2015.”.
The purpose of the amendment is to ensure that the legislation applies to legal partnerships and multidisciplinary practices so that it includes as wide a representation of workers in the State as possible.
I understand the Deputy's intent to ensure the reporting requirement is as far-reaching as possible. However, it is important to note that no other specific class of employer, other than by reference to its size, is specifically referred to in the Bill. The Bill instead provides at section 2 for the insertion of a new section 20A into the Employment Equality Act 1998 and that under subsection 4(a) the regulations may prescribe the classes of employer to which the regulations apply. It is the intention that the regulations will apply to all classes of employer, including individual Departments and Government agencies.
Where a legal partnership or a multidisciplinary practice meets the size criteria to fall within the scope of any regulation, as an employer, it will fall within the scope of the regulations made. However - I think this may be the intention of the Deputy's amendment - given that partners are not employees and they take a share of the employer's profits, which is not directly comparable with employees' pay, partners will not be included. They are not covered in the gender pay gap calculations under the legislation. Therefore, the Deputy's proposed amendment, even if it were accepted, would not remedy that. On that basis I do not propose to accept the amendment.
I am happy enough to withdraw the amendment based on what the Minister has said.
I move amendment No. 11:
In page 5, to delete lines 29 to 35 and substitute the following:
“(6) (a) Regulations made under this section may require the employer to publish information in respect of a public body.
(b) In this subsection—
‘Act of 1998’ means the Education Act 1998;
‘Act of 2014’ means the Companies Act 2014;
‘board’ has the same meaning as it has in the Act of 1998;
‘company’ means a company formed and registered under the Act of 2014 or an existing company within the meaning of that Act;
‘education and training board’ means an education and training board established under section 9 of the Education and Training Boards Act 2013;
‘enactment’ has the same meaning it has in the Interpretation Act 2005;
‘information’ includes data;
‘public body’ means—
(a) a Department of State,
(b) the Attorney General,
(c) the Comptroller and Auditor General,
(d) the Revenue Commissioners,
(e) the Commissioners of Public Works in Ireland,
(f) the Commissioner of Valuation,
(g) the Garda Síochána,
(h) the Defence Forces,
(i) a local authority for the purposes of the Local Government Act 2001,
(j) the Health Service Executive,
(k) an education and training board,
(l) a recognised school established and maintained by an education and training board,
(m) a board of a recognised school established and maintained by an education and training board,
(n) a body established—
(i) by or under an enactment (other than the Act of 2014 or a former enactment relating to companies within the meaning of section 5 of that Act), or
(ii) under the Act of 2014 (or a former enactment relating to companies within the meaning of section 5 of that Act) in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,
in respect of which a public service pension scheme exists or applies or may be made,
(o) a body that is wholly or partly funded directly or indirectly out of moneys provided by the Oireachtas or from the Central Fund or the growing produce of that Fund and in respect of which a public service pension scheme exists or applies or may be made, or
(p) any subsidiary of, or company controlled (within the meaning given by section 10 of the Taxes Consolidation Act 1997) by, a body to which paragraph (i), (j), (k), (n) or (o) relates and in respect of which a public service pension scheme exists or applies or may be made;
‘public service pension scheme’ has the same meaning as it has in Part 4 of the Public Service Pay and Pensions Act 2017;
‘recognised school’ has the same meaning as it has in the Act of 1998.”.
The Bill currently provides at subsection 6 that regulations may be made in respect of an employer that is a public body. The proposed amendment provides for a more comprehensive and complete definition of a public body. The amended definition of what encompasses a public body is based on section 10 of the Data Sharing and Governance Act 2019 and the text of section 10 of that Act was chosen as it is the most complete and up-to-date definition of a public body that we currently have on the Statute Book.
Deputies may note that at (a) the definition states "a Department of State" rather than "a Minister of the Government" as provided for in section 10 of the Data Sharing and Governance Act. This move away from the precedent definition is to ensure that where a Minister has responsibility for one or more Departments, and we know quite a number of Ministers do so nowadays, an individual report from each individual Department is required. The purpose of this amendment is to ensure Departments and agencies will meet the criteria for reporting under the Bill and will report individually. It is important we can use the individual report from each Department so we can more thoroughly and precisely identify where gender pay gaps exist. I seek the House's support for this amendment.
I move amendment No. 13:
In page 7, to delete lines 29 to 37, to delete page 8, and, in page 9, to delete lines 1 to 35 and substitute the following:
“ “Application to Circuit Court or High Court in case of failure to comply with regulations made under section 20A
85B. (1) Subject to subsection (3), where the Irish Human Rights and Equality Commission is satisfied that it has reasonable grounds for believing that there has been a failure by a person (in this section referred to as the ‘person concerned’) to comply with regulations made under section 20A, it may make an application to the Circuit Court or the High Court for the grant of an order requiring the person concerned to comply with those regulations.
(2) The Circuit Court or the High Court may grant the order sought by an application under subsection (1) if the Court is satisfied that the person concerned has failed to comply with regulations made under section 20A.
(3) The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge for the time being assigned to the circuit where the person concerned ordinarily resides or carries on any profession, business or occupation.
Redress through Workplace Relations Commission
85C. (1) An employee (in this section referred to as the ‘complainant’) who claims that his or her current employer (in this section referred to as the ‘respondent’) has failed to comply with regulations made under section 20A (such claim in this section being referred to as the ‘complaint’) may refer the complaint to the Director General of the Workplace Relations Commission.
(2) (a) Subject to paragraphs (b) and (d), the Director General shall investigate the complaint if he or she is satisfied that there is a prima facie case to warrant the investigation.
(b) (i) The Director General may, by notice in writing given to the complainant or respondent, or both, require the complainant or respondent, or both, to give to the Director General, within the period specified in the notice (being a period reasonable in the circumstances), such further information that the Director General may reasonably require in order to assist the Director General to decide whether or not there is a prima facie case referred to in paragraph (a)
(ii) The complainant or respondent given a notice under subparagraph (i) shall comply with the notice.
(c) The Director General may, as part of an investigation (if any) of the complaint and if he or she considers it appropriate to do so, hear persons appearing to the Director General to be interested and desiring to be so heard.
(d) Section 77A shall, with all necessary modifications, apply to a complaint as that section applies to a claim.
(3) Subsections (3A) and (4) of section 79 shall, with all necessary modifications, apply in relation to an investigation by the Director General under subsection (2) as they apply in relation to an investigation by the Director General under that section.
(4) At the conclusion of an investigation under subsection (2) (including an investigation of a preliminary issue under subsection (3A) of section 79), the Director General shall make and issue a decision and, if the decision is in favour of the complainant—
(a) the Director General may provide for an order that the respondent take a specified course of action in order to comply with regulations made under section 20A, or
(b) in the case of a decision on a preliminary issue under subsection (3A) of section 79, it shall be followed by an investigation of the complaint.
(5) Not later than 42 days from the date of such a decision, the complainant, on notice to the respondent, or the respondent, on notice to the complainant, may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.
(6) Proceedings under subsection (5) shall be conducted in public unless the Labour Court, upon the application of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.
(7) The Labour Court shall issue a determination on the appeal under subsection (5) and the Court shall have power to grant such redress as the Director General has under subsection (4)(a).
(8) Notwithstanding anything in section 89, the publication of decisions and determinations shall include the names of the complainant and respondent.”.”.
This amendment to section 3 of the Gender Pay Gap Information Bill provides, first, for the deletion of section 85B, second, for the amendment and renumbering of section 85C, and third, for the amendment and renumbering of 85D as drafted and the insertion of amended sections 85B and 85C into the principal Act. The original purpose of section 85B in the Bill was to provide for certain enforcement powers in respect of gender pay gap information through the appointment of designated enforcement officers. A policy decision has been taken not to proceed with the appointment of designated enforcement officer provisions due to the concerns about how this system would operate practically and indeed about whether having such a role is indeed necessary. The proposed amendment would first of all delete section 85B. The current section 85C provides for a power of the Irish Human Rights and Equality Commission, IHREC, to apply to the Circuit Court for an order requiring a person to comply with the regulations. A person who fails to comply with a Circuit Court order is in contempt of that court.
The proposed amendments to section 3 to insert a new section 85B into the principal Act will enhance the enforcement powers of the Irish Human Rights and Equality Commission by providing a power to take an application to the Circuit Court or to the High Court. That is the additionality that is being added here where IHREC is being given the choice of proceeding either as it was with the Circuit Court or, indeed, now of making an application to the High Court. Again, these applications can be made where it has reasonable grounds for believing there has been a failure by a person to comply with the provisions of the Bill and to obtain an order requiring the person concerned to comply. In deciding whether it should go the route of the Circuit Court or the High Court, IHREC will have regard to the size of the company, the number of infringements etc., and these will be the criteria it will use to determine which court it should take the proceedings in. By inserting the capacity to take these cases to the High Court, it elevates the seriousness of the legal case. The company in question, if the court makes an order, will now be held in contempt of the High Court as opposed to being held in contempt of the Circuit Court.
The purpose of the current section 85D is to provide for an employee to make a complaint to the Workplace Relations Commission of non-compliance with reporting regulations by his or her employer. The proposed amendment changes the section number from 85D to 85C. In addition, subsection (4) of what was section 85D previously provided for an investigation to be carried out in private by the director general of Workplace Relations Commission. The use of the text "in private" is at odds with the finding of the Supreme Court in the recent Zalewski judgement, which has implications for the procedures of the Workplace Relations Commission as to proceedings held in private. The new section 85C removes the subsection requiring an investigation to be held in private.
In addition, subsection (7) provided for an appeal in the Labour Court to be heard in private unless, at the request of the complainant or respondent, the court determined to hold the appeal in public in full or so much of it as it did not consider to be treated as confidential. This again in the amendment I am bringing forward here has been amended at subsection (6) to allow for an appeal to be held in public unless at the request of either party the court determines there are special circumstances to hold the appeal or part thereof otherwise than in public.
The proposed amendment on the whole will strengthen the enforcement procedures for the gender pay gap reporting and ensure they are practical, effective and meet with the new interpretations following on from a recent Supreme Court decision. I commend the amendment to the House.
I welcome this amendment and it is good to have the role of the Irish Human Rights and Equality Commission strengthened. That is welcome. I agree that by adding the High Court to the Circuit Court, it gives the legislation additional seriousness and a greater standing. I also welcome the inclusion of the Workplace Relations Commission and the Labour Court. From my own experience of working for a union, they are in general more worker-friendly forums as opposed to a court, although they may not have always seemed like that at times. It is important nonetheless to have the court there also as a sort of backup and, as the Minister said, to highlight the seriousness of the legislation. As a first step it is good for people to be able to deal with the Workplace Relations Commission or the Labour Court. I welcome this amendment and will be supporting it.
Amendments Nos. 14 and 15 are related and may be discussed together.
I move amendment No. 14:
In page 8, between lines 20 and 21, to insert the following:
“(2A) Failure to comply with an order granted by the Circuit Court by the person concerned would be a Category 4 offence subject to a class A fine.”.
I am withdrawing amendment No. 15 on the basis of the Government's amendment No. 13. Amendment No. 14 seeks to strengthen the provision for enforcement if a company does not comply with the legislation by inserting the following, "Failure to comply with an order granted by the Circuit Court by the person concerned would be a Category 4 offence subject to a class A fine."
I am of the view that the strengthening we have just agreed to under amendment No. 13, by giving those extra powers to IHREC to take a case to the High Court to ensure that, where IHREC so believes the seriousness and the egregiousness, perhaps, of the breach of the legislation of these reporting provisions by a particular employer warrants going to the High Court and that very significant sanction, both legally and from a publicity point of view, in a ruling of contempt of court by the High Court, is a significant enough enforcement power and, as such, I am not inclined to accept the amendment by the Deputy. This is a very significant additional power, which is not just enforcement through the Circuit Court but also enforcement through the High Court, and which we are giving to IHREC, which we all recognise to be an independent body and the expert on human rights and equality provision in the country. It is best placed to make determinations in terms of pursuing enforcement actions under this legislation. I am not proposing to accept the amendment.
I will withdraw amendments Nos. 14 and 15.
I move amendment No. 16:
In page 10, line 15, to delete “5th anniversary” and substitute “4th anniversary”.
I was able earlier to refer briefly to this amendment. It reduces the time period within which a review and report of this legislation will be undertaken. It is set currently at five years.
I am proposing to reduce that to four years. I think we have to strike a balance here between vigorously reviewing new and innovative legislation to ascertain whether it is working and delivering on its stated purpose which, in this case, is the taking of measures to reduce the gender pay gap but, at the same time, giving the legislation time to work and giving time for the processes to successfully change practice and culture among employers. By setting the review to take place before four years have elapsed, the full application of the Bill will have come all the way down to employers of 50 or more employees, which is the cap at which the legislation is set, and will give one year for that to take place. It is an amendment that will enable a future Government to examine the success of this legislation in a more compact time period and I think that is appropriate.
Obviously, I always err on the side of wishing to see the review being carried out sooner than after four years. However, I welcome the fact that it has been reduced from five years to four years. That is a positive move.