Irish Human Rights and Equality Commission (Gender Pay Gap Information) Bill: Committee Stage

SECTION 1

I welcome the Minister of State, Deputy David Stanton, to the House. Amendments Nos. 1 to 3, inclusive, are related and may be discussed together, by agreement.

I move amendment No. 1:

In page 3, line 17, to delete "may" and substitute "shall".

These are simple amendments to ensure that neither the scheme nor the publication will be optional and to ensure it will not be left to the discretion of the company whether to partake in the scheme. I fail to see the point in making legislative provision if people can just actively ignore it. It would have as much power as labour guidelines on how workplaces should address the issue of gender pay gaps. If we are to be serious about this, the legislation before us should not be merely tokenistic. That is the rationale for the amendments.

I welcome the Minister of State, Deputy David Stanton, to the House. I welcome the commitment by the Government to addressing the serious problem of the gender pay gap. I welcome to the Visitors Gallery the representatives of the National Women's Council of Ireland. I thank the council and other organisations, such as IMPACT, for their great support for this Bill. This Bill passed on Second Stage as a Labour Party Private Members’ Bill without opposition on 24 May. We are delighted it is before the House on Committee Stage. We very much hope for cross-party support. We anticipate that the Minister of State will not be opposing the legislation as it proceeds through Committee Stage today.

In the context of the specific amendments tabled by my colleague, Senator Conway-Walsh, I thank her for supporting the Bill generally. I acknowledge the amendments have been tabled in the spirit of seeking to strengthen the Bill, which I absolutely appreciate, and to make it prescriptive rather than simply facilitative. I am not against them but I ask the Senator not to press them to a vote today because we anticipate there will be Government amendments on Report Stage. I look forward to working with the Minister of State and colleagues from all parties on how best to shape the Bill to ensure we have an effective mechanism for tackling the gender pay gap.

Let me give a little background for colleagues. We know there is a 13.9% pay gap between men and women in Ireland currently. The equal pay legislation we passed in 1974, the Anti-Discrimination (Pay) Act, has been ineffective in addressing it. Effectively, women in Ireland are working for free for one month every year. This is a growing problem that has been recognised internationally. We have examined other models of legislation, particularly from the United Kingdom, Australia and Belgium, where steps have been taken to tackle gender pay discrepancies through transparency and disclosure of data to show where there is a gender pay gap in existence.

As colleagues will be aware, this issue came to a head in the context of the gender pay disparity in RTÉ. As a result of its being revealed, we saw the publication by RTÉ of figures. This Bill seeks to enable this kind of publication. The data would be anonymised so no individual employees would be identified. The data would simply show how many men and women work at a particular level in an organisation and their level of pay. In that way, we could establish whether there is a pay gap between women and men in a particular organisation. That is the nature of the Bill.

We have included the word "may" in the legislation rather than "shall" specifically to keep it in line with the existing Irish Human Rights and Equality Commission Act 2014, which in section 32 empowers the commission to invite a particular undertaking or group of undertakings, or a particular sector, to carry out an equality review or prepare and implement an equality action plan. Our Bill specifically seeks to enhance the power of the Irish Human Rights and Equality Commission by inserting a new section 32A into the 2014 Act. This would also empower the commission to require employers to publish the pay data I have described to show whether there is a gender pay gap in their organisations. We have simply used the same language that is in the 2014 Act, namely, the word "may". The Sinn Féin amendment would make it stronger and state "shall publish". We were conscious that the commission is independent in its functions and that the word "shall" might be unduly prescriptive. Rather, we want to empower the commission to take the sort of action I have described.

I have been consulting since we took Second Stage of the Bill. I am mindful that there may be a better mechanism altogether than empowering the Irish Human Rights and Equality Commission to obtain the data from employers. In this regard, let us consider what is happening in other jurisdictions. In Britain, for example, there is a government website on which data are required to be published by employers. Therefore, it may well be that the collation or publishing of the data could be achieved by a State agency or a Department, be it the Department of Business, Enterprise and Innovation or the Department of Justice and Equality.

Perhaps the Department of Business, Enterprise and Innovation would be more appropriate. The Irish Human Rights and Equality Commission would then have a role in oversight and monitoring. Where the data published disclosed a gender pay gap in an organisation or a sector, for example, in a given chain of supermarkets or the whole supermarket sector, then the commission would be empowered, as it is currently under the 2014 legislation, to require the employer to take steps to address and remedy the gender pay discrepancy.

It may well be that we would be willing to countenance amendments to this legislation to place a different onus on the commission, that is, the onus of monitoring and oversight, rather than the onus of collecting the data in the first place. There are two steps. The first is the diagnostic aspect, whereby we must ensure that we know where gender pay gaps exist. We must see the data and it must be published transparently. We have seen that method used effectively in Australia and Britain. It is not simply a matter of name and shame, and I know there is another Sinn Féin amendment on that point. We have to be careful about that. It is not simply about name and shame. It is also about name and fame. An IMPACT official said to me today that companies or organisations that are doing well and in which there is no gender pay gap would be disclosed and celebrated. In such organisations there is in fact pay parity between women and men. I would describe this as a carrot rather than a big stick. The diagnostic element involves publishing the data and the power to publish the data. That is why we are including the enabling language of "may". The Sinn Féin language probably steers us to a different level by using "shall". I am not opposed to it per se. I am in favour of anything that strengthens the Bill, but I can see that we have to work with stakeholders.

I am conscious that the Minister of State and the Department of Justice and Equality as well as the Minister for Business, Enterprise and Innovation, Deputy Fitzgerald, are engaging in consultation. There will be a symposium in December.

Some organisations have changed their positions. I am delighted that IBEC has come out this month in its publication in favour of measures to tackle the gender pay gap. I know some in that publication are critical of aspects of the Bill. I believe we can work together to ensure a good model is adopted that addresses the concerns individuals may have around anonymity. Some say there may be data protection concerns, but that should not arise if the data are anonymised. That is important to say.

We like the current model. It is useful to look at using the existing mechanism of the independent agency, that is, the Irish Human Rights and Equality Commission, and to give it additional or enhanced powers in respect of gender pay gap monitoring and oversight. It may be that the body that will be given powers to require publication of information might be a different body. We prefer not to set up a new agency. I am conscious that in Australia, for example, the model is the Workplace Gender Equality Agency. I know that is probably not the best approach for us. We took the view that existing legislation uses similar terms through the use of the expression "may" with reference to the commission carrying out equality reviews or action plans with different undertakings under section 32 of the 2014 Act. We should look at similar powers and provisions in this case around the publication of gender pay gap information.

I apologise for going on so long. However, I believe this is a key amendment in terms of how the Bill works or how it would work. We are absolutely open to amendments. We are happy that there is ongoing consultation and that the Government has committed to this. This is very much in the spirit of the commitment in the programme for Government.

IBEC has been critical of our model of more than 50 employees as being too low a bar. Of course, that is the Government's level. The model mirrors what is already provided for in the 2014 Act, section 32 of which gives the commission powers around equality reviews and equality action plans in respect of undertakings of 50 or more employees. We already have a model and we are keen to keep it within existing legal framework while ensuring that we provide for enhanced powers such that we can get the information we need without the existence of a gender pay gap.

I thought that was a Second Stage speech. Senator Colette Kelleher is next.

I am always trying to be gender neutral.

I welcome the Minister to the House. It is great to see this Bill progressing on Committee Stage. I congratulate Senator Bacik and the Labour Party Senators for keeping the pressure on this issue. It is important.

We have a real problem here. It is 40 years since we saw equal pay legislation. I would have thought that since that was in place there would be no need to have this conversation. Women earn 14% less than men on an aggregate basis and that is utterly unacceptable. We have to take additional measures like those set out in the Bill to ensure that this issue is addressed via the Irish Human Rights and Equality Commission or some other collector of data - Senator Bacik referred to Departments - with the commission having oversight. That is an interesting idea.

We must ensure that the Bill is as strong as possible. Some of the amendments tabled by Senator Conway-Walsh would strengthen the Bill. The first aspect of all of this is to bring the problem to the surface, because it is not everywhere. That is important. We do not know that we have a problem until we know where the problem is. That represents an important part and consequence of the Bill. A little shaming is no harm, but I think so-called faming also works. Both carrot and stick are appropriate, but information is everything.

I am delighted IBEC has come on board. There is nothing more depleting of morale and productivity than finding that a person is getting paid less or has different terms and conditions than another sitting beside that person who would appear to be doing the same job. All these issues are emerging with new teachers and gardaí coming in. We should have a situation whereby similar work is paid similarly, especially in this instance, irrespective of gender.

The debate also provides us with an opportunity to hear the Government intent on the matter. I hope the Minister of State will set out his stall to us today. The inclusion of actions in strategies is well and good, but we need concrete action to address and eliminate this issue. There is no reason to have a gender pay gap at all. It is possible to eliminate it and I believe the proposals in the Bill requiring companies with 50 employees or more to publish any differences in the rates they pay to men and women, including bonus pay, would represent a concrete measure. It has been proven to work elsewhere. I hope that we can follow suit in this country.

I wish to reiterate Fianna Fáil's support for the Bill as well as my personal support. I am delighted to be here. I missed the Second Stage because it was held on 24 May and my little boy was born on 22 May. That is why I was not here to voice my support.

That is a reasonable excuse.

I was back soon after that, but not quite two days later. The Bill is welcome. Senator Kelleher touched on an important point. We need to diagnose the problem first. Sometimes, when I speak about the gender pay gap with people, they seem to think that it does not exist, that it is some kind of figment of our imagination or that it is not actually happening. However, it is happening. People are keeping it to themselves because many women are embarrassed that they are being paid less than others who are often junior to them in companies. This is a good way of highlighting the issue, diagnosing the problem and then doing something about it.

The next steps are important. Once we have the problem diagnosed and we can see where it arises, then we can bring companies along. As legislators, we need to focus on the two main policy areas of child care and shared parental leave. Affordable child care is something I have been speaking about for a long time. It really needs to gain traction if we are going to close the gender pay gap. Many of the women I speak to who have taken prolonged periods out of the workforce never wanted to do so in the first place. They find when they go back that they are at a far lower level and their bargaining position is far weaker. Many never wanted to take five or six years out but they were forced to do so due to the high cost of child care in this country. If we had a proper focusing of the Government mind on providing subsidised child care throughout the country in every community, then I believe we would see the gender pay gap narrowing.

Shared parental leave is essential. Let us suppose an employer is hiring or promoting employees. If the organisation can look at a male and female employee in the same light, in the sense that they both could take time off to look after young children, then I think we would see far less prominence given to men in promotional circumstances. I very much welcome and support the Bill.

I am very pleased to be back in the Seanad to discuss this Bill in the names of Senators Ivana Bacik, Kevin Humphreys, Gerald Nash and Aodhán Ó Ríordáin. I congratulate Senator Lorraine Clifford Lee on the birth of her little boy. It brings to mind the issue of maternity and paternity leave for politicians, an issue on which we should focus at some stage with a view to determining if people want something to be done in that regard. I also note that while a lot of progress has been made on the issue of child care, more has to be done. It is an issue the Minister for Children and Youth Affairs, Deputy Katherine Zappone, has seized upon and, with the support of everybody, I hope we can make further progress on it. It is a very important issue and the Senator was right to raise it.

To get back to the issue in hand, as Senators will be aware, the Government has committed in A Programme for a Partnership Government and in an action in the national strategy for women and girls, which I encourage colleagues to read because it contains a lot of information, to promoting wage transparency by requiring companies with 50 or more employees to periodically complete a wage survey and report the results. This is part of a package of measures envisaged to address the gender pay gap. A public consultation process to inform this work concluded on 4 October and the analysis of the submissions received has started. The findings will be considered at a symposium planned for 4 December to identify the actions needed in the short and medium term, including the most useful methodology to be used in wage surveys. It would be my preference for the Bill to complete Committee Stage but not to progress further until the Government brings forward proposals following full consultation with stakeholders. Actions are happening in parallel to what we are doing. It is in that context that I approach the Bill and the amendments tabled for discussion.

I should make it clear that I am examining the Bill with a view to bringing forward a number of Government amendments on Report Stage. I have listened carefully to Senator Conway-Walsh's explanation for the amendments and understand and appreciate her intention to address one of the concerns I raised on Second Stage, namely, that no provision had been made which would guarantee that wage surveys would be introduced. However, the Government's position is that the Irish Human Rights and Equality Commission, IHREC, should not be involved in wage surveys but rather that the Minister for Justice and Equality, in co-operation with other relevant Ministers, should, subject to appropriate scrutiny by the Houses and based on primary legislation, frame the scheme for wage surveys. It would be a whole-of-government approach which I am sure Senators will agree would carry a great deal of weight.

We understand informally that the IHREC also considers that it would not be appropriate for it to take on this role, but I accept what Senator Ivana Bacik has said about it having an oversight role. That will happen and it is important that it should. A lead-in time would be needed both for the making and administration of a scheme and for employers to gear up to produce the information specified. I take the opportunity to ask all companies, both public and private, to start focusing on this matter now. It is important that all companies, both public and private, do so if they have not already started. I am preparing an amendment to provide for a commencement order to accommodate this approach. I will bring forward the amendment on Report Stage, with amendments to the Long Title of the Bill to remove the references to the IHREC.

Amendment No. 2 would reduce the level of discretion allowed in the making of a scheme. I suggest that when the list of matters to be prescribed in a scheme is reasonable, it may not be necessary to require that all matters be dealt with in every scheme.

I note that amendment No. 3 would reduce the discretion allowed. On the face of it, the making of a biannual report by employers sounds reasonable. However, I am concerned that this provision would be unduly restrictive and not offer the flexibility required to vary a scheme to provide for less frequent publication of information should experience and practice suggest it would be beneficial to do so, for example, in the case of smaller employers.

I raise an additional matter which concerns the information to be published at employer level in accordance with subsection (4) of section 32A to be inserted by section 1. There may be a danger that the pay of an individual might be worked out from the information published. I am advised by the Attorney General that this raises the matter of compliance with Article 8 of the Charter of Fundamental Rights of the European Union on the protection of personal data which provides that:

Everyone has the right to the protection of personal data concerning him or her. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law.

The matter will be discussed further with the Office of the Attorney General and I may bring forward an amendment on Report Stage to take account of it.

For the reasons outlined, the Government is not able to support the amendments, but I assure Senators that we are all headed in the same direction on the need for wage surveys and to address the gender pay gap. We will bring forward amendments on Report Stage when we have gone through the public consultation process I outlined, including the symposium, and carried out the research that needs to be done. We will then bring proposals to the House for debate and consultation.

I thank the Minister of State for his comprehensive response and setting out in detail the substance of the amendments he proposes to bring forward on Report Stage. I know that the consultation process was concluded on 4 October and that, as he said, the symposium will be held on 4 December. As we are anxious to make progress on this issue, I wonder if he could outline a timeline. We hope to bring the Bill back to the House early in the new year for Report Stage and I understand some of this is within our control as the Labour Party group; therefore, it would be good to work with the Minister of State and his officials on the amendments in the meantime. I am conscious that we did this in the enactment of our previous Private Members' Bill, the Competition (Amendment) Bill, which became law this year.

The Minister of State has set out in some detail what might be a better mechanism for wage surveys, under which it would be a Government responsibility. That answers Senator Conway-Walsh's concern about making it more prescriptive in that the Government would have to require the publication of wage surveys. It would be positive to include a role for the commission in providing for oversight and monitoring. That is the diagnostic aspect. The curative aspect involves the penalty and so on, a matter we will debate when we come to deal with amendment No. 4.

I am grateful to the Minister of State for setting out his intention to amend the Bill on Report Stage. I also thank other colleagues for their support for the Bill.

I congratulate Senator Lorraine Clifford-Lee in particular. She is right about affordable child care, parental leave and paternity leave. There are other measures that need to be taken to address the bigger structural issue of gender pay discrimination. The real experiences of individuals in the workplace have been brought home to me since we introduced the Bill. Women have come up to me and said they have experienced gender pay discrimination, yet there are still people who deny that there is a gender pay gap. We might call them gender pay gap deniers. It is very important that we move forward quickly on this issue to challenge the deniers and show that there is a problem in particular sectors or organisations.

Is Senator Conway-Walsh pressing her amendment?

No. I will not do so, but I reserve the right to present the amendment again. I will call a vote on it on Report Stage. I thank the Labour Party for presenting the Bill which has 100% support from us it, but we strongly believe the issues outlined in the amendments need to be dealt with in the Bill.

If the Senator withdraws the amendment, she can re-enter it on Report Stage. Do I take it that it is being withdrawn?

Yes. I will re-enter it with amendments Nos. 2 and 3 on Report Stage.

I thank the Senator for her co-operation.

Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 not moved.

I move amendment No. 4:

In page 4, line 22, after “class A fine.” to insert the following:

“Those deemed to be repeatedly in breach of the provisions contained within a scheme may be subject to multiple class A fines; with the name of the company being added to a public database of repeat offenders.”.

This amendment would make repeat offenders subject to multiple class A fines, as well as giving the Department the ability to publish the name of the company publicly for being in direct breach of the legislation on multiple occasions. Companies take matters such as this seriously when there is a threat of being exposed publicly. However, I also question whether the threat of a fine is worth the paper on which it is written when faced with the decision to opt in or out of such a scheme or face a potential fine. The companies that already know that there is a gender pay gap will run a mile, making this legislation pointless.

Sinn Féin backs the spirit of the Bill entirely, but on its practicality, if it became law, there are serious and simplistic errors in it, as it stands. I will not push the amendments to a vote today, but I reserve the right to reintroduce them on Report Stage. I hope Senators Ivana Bacik and Gerald Nash will take this and some of the other things we pointed out on board and have them incorporated in the Bill.

I thank Senator Rose Conway-Walsh for her support for the Bill, as well as Senator Colette Kelleher who expressed strong support earlier for it and Senator Lorraine Clifford-Lee.

I know that the amendment is in the spirit of trying to strengthen the Bill and that the Minister of State will obviously have a view on it. There may a process issue involved in the provision for multiple fines and in any case it would probably have to be tweaked. We should look at the penalty again. We have included a class A fine for a breach of the scheme. I am conscious that section 33 of the 2014 Act under which the Irish Human Rights and Equality Commission, IHREC, was established provides for a class C fine or imprisonment for a term of up to one year for somebody who fails to comply with a substantive notice on foot of an equality review or action plan. As there are already different penalties provided for in that legislation, it may be a case of having to tweak it.

On naming companies and having a public database, we should be careful to say this is not just about naming and shaming but also about naming and faming and celebrating companies that positively promote gender equality and that do not have a gender pay gap. We just do not know what gender pay gap there is in particular sectors or organisations. We just have the very global figure of 13.9% in Ireland. The curative aspect is very important. We need to make sure we get the penalty right and that we are open to amendments. I thank the Senator for bringing forward the amendment.

I thank Senator Ivana Bacik for the work and thought she has put into the Bill. As a matter of interest, I am really taken by the naming and faming idea. As it happens, I was at the signing this morning of the diversity charter for companies. Some 51 companies were involved and six more joined this morning. They are talking about having a standard diversity mark for companies which they would strive to attain. Penalties are one side of the equation. On the other companies that want to reach certain standards could be awarded certain marks. It strikes me that there could probably be a gender equality pay mark for companies that have achieved a certain standard. Sometimes we focus on penalties when perhaps we should focus on encouraging and supporting the positives just as much, if not even more.

I note that Senator Rose Conway-Walsh has suggested she will withdraw the amendment with permission to retable it on Report Stage. Its objective seems to be to provide for penalties where there are repeated breaches of the provisions of a scheme. Provision has been made in subsection (6) for the imposition of penalties for contravention of the provisions of a scheme by an employer. It is not clear, however, what the amendment would add in specifying that multiple class A fines would apply to those who repeatedly contravened the provisions of a scheme. It goes without saying that each such contravention could be punished by the imposition of a class A fine.

I note that the proposed public database for repeat offenders raises the possibility of the expenditure of public funds on its creation and maintenance. The proposal does not provide for matters such as the duration of an entry on such a register. The fact that an employer has been fined for an offence would be a matter of public record. We would have to consider whether the idea of having a database is a proportionate response. Would a company be on it forever? One has to work out how a company could get off the database. That would have to be provided for in the legislation. For these reasons the Government is not able to support the amendment, but I am disposed to considering further what the enforcement and encouragement mechanisms might be. I will observe without expressing a view that the corresponding British regulations in this area do not impose a sanction.

Amendment, by leave, withdrawn.
Question proposed: "That section 1 stand part of the Bill."

I may bring forward amendments to this section on Report Stage.

The Minister of State would be quite entitled to do so. That is understood.

Question put and agreed to.
Section 2 agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Is that agreed? Agreed.

Report Stage ordered for Tuesday, 31 October 2017.

When is it proposed to sit again?

Ar 10.30 maidin amárach.

The Seanad adjourned at 5.35 p.m. until 10.30 a.m. on Thursday, 26 October 2017.