Amendments Nos. 2 and 3 are related and may be discussed together by agreement. Is that agreed? Agreed.
Gender Pay Gap Information Bill 2019: Committee Stage
I move amendment No. 2:
In page 3, line 21, to delete “as soon as is reasonably practicable” and substitute “immediately”.
This is in a similar vein to amendment No. 3 in the name of Senator Higgins. It has a clear meaning and rationale in keeping with my speech on Second Stage.
I welcome the Minister to the House. I also welcome the opportunity to debate Committee Stage of this important Bill. I am delighted to see it being expedited. As the amendment suggests, we want to see it brought into law swiftly. We want to be constructive on Committee Stage and not impede the Bill's passage. However, as I stated on Second Stage, we are concerned about the extensive delays between the original discussion on the introduction of gender pay gap legislation and the point at which we are getting to debate this Bill on Committee Stage. The Minister agrees that the delay is most unfortunate. Most of it occurred before his time as Minister. Since there has been such a long gap between when I introduced Labour's gender pay gap Bill some years ago and this stage, I am tabling amendment No. 2. It seeks to bring the legislation into effect swiftly. Rather than saying that the Minister shall "as soon as is reasonably practicable after the commencement" make the necessary regulations, the Bill would read "immediately after the commencement".
On Second Stage, I was critical of the lack of specificity in the Bill as to what the regulations would provide. I would love to hear more from the Minister as to how exactly the Bill will take effect. It is a facilitative or enabling Bill. The Minister is nodding. That is the language of it and there is nothing wrong with that, but people, particularly employers and employees, need to know what the provisions will prescribe. What specific information will employers have to publish, in what format and to whom? All of this detail is still absent from the text of the Bill.
At the very least, we could have more clarity and certainty as to when the Bill will come into effect. In the years since I introduced Labour's Bill in May 2017, I have spoken at numerous events run by employers, HR practices, trade unions and workers' organisations at which I have been told that organisations are ready for this legislation, have been preparing for it for some time and want to see it come into effect. I do not see why we need a delay after commencement. The Bill's commencement is dealt with in section 7 and has the usual provision that the Act will not come into operation until the Minister orders so. Inevitably, there will be a delay between the passing of the Bill and its commencement. What I do not want to see is a further delay after commencement until these crucial regulations are published. That is why I am moving this amendment. Senator Higgins is seeking to do something similar - my amendment calls for "immediately" and hers "within three months" of commencement. Our amendments are to the same effect, in that we want to provide greater clarity and certainty and to avoid further unnecessary delays.
The wording "as soon as is reasonably practicable" has to do with the fact that this provision is about putting the regulations in place. Thus far, the Minister has always delivered anything he has committed to within a timeline. The impetus in the programme for Government and so on is to put this legislation in place as quickly as possible. While I understand and agree with the urgency, I do not believe that either amendment is necessary.
There is no question about the Minister's desire to put this legislation in place, but those of us who had the experience of speaking on the previous legislation quite some time ago are conscious of how delays can occur and official, bureaucratic and other processes can slow matters. It has been some time since we debated this legislation. It has been in the public realm and many businesses have been expecting and preparing for something to this effect. It gives businesses a predictability and an ability to plan if they know that, after commencement, this legislation will enter into effect. There would be a clearer timeline, which would allow everyone to plan for it and engage with it constructively.
I am supportive of the amendment, which calls for "immediately". I was probably trying to strike a compromise through "within three months" so that, after commencement, it would be clear that the clock started ticking at that point. Businesses and others involved in the implementation would be clear that, within three months, the regulations would kick in. It is intended to give a predictability and keep momentum so that we have a timeline and there is energy to continue moving on this.
While the previous iteration of this Bill moved along, the legislation has been a long time coming.
Amendment No. 3 is intended to give certainty, predictability and to ensure that those who are getting on board with this legislation, there are many, are clear on the timelines of when this will kick into effect. I hope the Minister can accept either of these amendments.
I welcome the Minister to the House. I wish to voice Sinn Féin’s support for amendments Nos. 2 and 3. As was said, businesses have known this has been coming for a number of years. Both amendments are better than what is currently in the Bill.
I thank the Senators and I am pleased to be able to address the House on the Third Stage of the Gender Pay Gap Information Bill. From our discussion on Second Stage, I know there is a strong desire to see this Bill implemented swiftly and this has been mentioned in the debate today. It is the Government’s belief that the Bill is robust and is proportionate in its approach as regard compliance and the timetable for implementation. On Report Stage in Dáil Éireann, I took a number of steps towards strengthening this Bill in broadening the definition of what constitutes a public body. The Bill allows for the Irish Human Rights and Equality Commission to take an employer that does not meet the provisions of the legislation to the High Court, as well as the Circuit Court, including the additional publicity and potential for fines that comes from a High Court decision of contempt. I also shortened the timeframe for review of this legislation from five to four years.
I refer to the specific amendments Nos. 2 and 3 from the Labour Party and Senator Higgins. I thank Senators for those amendments. I give my assurance to the House, as I did in the Dáil, that it is my intention, provided the Bill is enacted during this term, to have the regulations flowing from the Bill in place by the end of 2021. That is the timeline my officials are working towards and I believe it can be done. I accept, in the context of the lifetime of this Bill, that it has been a long and drawn out process. However, since the matters contained in this Bill were moved to my Department in October last year, I have expedited it in conjunction with my officials, and this has been recognised. When we spoke to the matter with Senators Bacik and Sherlock, we made a commitment in terms of moving the Bill forward. I believe we have met those commitments.
The Government sees this legislation as being central to the equality agenda we are pushing forward. The current text "as soon as is reasonably practicable", which is contained in the Bill, is a term of art in many pieces of legislation and it is what we are familiar with. My Department and I have shown the determination to prove that this Bill is a priority for us, and we will prioritise those regulations.
I thank the Minister for his clear response and for his indication that he intends to have the regulations in place by the end of 2021. That is very welcome. As I have said, there is immense concern, despite the use of the phrase "as soon as is reasonably practicable", that there have been many delays since May 2017 when we introduced our Labour Party Bill. We want to ensure more clarity as to when the regulations will come into force. This is not just coming from Opposition Senators; it is coming from many other stakeholders as well. I refer to SIPTU. It has provided me and others with helpful briefings on its view of the Bill. One of the points SIPTU made is that despite the fact that the introduction of this legislation has been flagged for several years, there has been no concrete indication of when the law will begin to have an effect. It is simply an enabling piece of legislation and there is no urgent timeline provided. The Minister’s response and indication that regulation will be in place by the end of 2021 has answered that concern for many of us. Thus, we might anticipate seeing those regulations in force by the end of 2021. The Minister might clarify this. In other words, we will know then exactly how the legislation will have effect once the regulations are published and even before they take effect in December of this year. The Minister might clarify that point. I thank him for his full response.
I have engaged with and have had two general meetings with the Irish Congress of Trade Unions. On both occasions, Congress’s strong desire to have this Bill passed was conveyed to me very clearly by Patricia King. It is my hope, if this process can move forward, that we can have this passed by the end of this term and that is my goal. My goal is to have the regulations in place by the end of the year and to publish the content of specific breakdowns of the various criteria and factors, many of which are listed in the Bill. The direct way in which the employer will be expected to report and engage on an annual basis will be set out clearly within the regulations.
Is the amendment being pressed?
I think we all know we agreed the amendment would be pressed. I do not want to catch anyone out.
Senator Bacik was being very fair.
I withdraw the amendment in light of the Minister’s response.
Amendment No. 3 has already been discussed with amendment No. 2.
I move amendment No. 3:
In page 3, line 21, to delete “as soon as is reasonably practicable after” and substitute “within three months of”.
I am hopeful the Minister will publish almost exactly on the three-month deadline. It sounds like what I put forward.
Amendments Nos. 4 to 6, inclusive, are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 4:
In page 3, after line 29, to insert the following:
“(i) a gender breakdown of full time employees;
(ii) a gender breakdown of part time employees;
(iii) a gender breakdown of employees with a flexible working hours contract;”.
This amendment looks for more detail in terms of what companies should be required to report. It is sensible and I hope it is accepted by the Government. I am seeking more detail in terms of the gender breakdown of full-time and part-time employees, and employees with flexible working hours contracts. I hope the Government can accept this amendment. It is looking for more detail in what information companies provide.
I support the amendments from Senators Warfield and Bacik. Their amendments are coming at the same issue. This is about specifically addressing the issue of part-time employees and Senator Bacik’s amendment looks at hourly remuneration. Senator Warfield’s amendment looks at the flexible working hours contract. Having sat on the employment committee in the last Oireachtas, I am very aware of non-fixed hour contracts and the particular vulnerability and preponderance of women who tend to be on part-time or non-fixed hour contacts. All of us are coming at the issue of part-time working, and in the case of Senator Warfield, part-time and flexible working.
In the case of my amendment, I do not specifically refer to part-time working, but I do refer to those people who are contracted for services. This is another missing piece of the puzzle. It is a bit different because it is a step away from the non-fixed hour contract. It relates to those who are contracted for services, perhaps because of the forced self-employment situations. People may be contracted and this may be their sole source of employment. Take, for example, persons contracted for cleaning services by a company over a five- or ten-year period. We should look to have a gender breakdown of that. Sometimes companies do quite well on the gender pay gap at the higher level within an organisation, but when it comes to part-time workers the difference is like the boardroom to the shop floor. When it comes to the shop floor or contracted services, that is where there are people on flexible contracts, non-fixed hour contracts and those who are part-time workers.
That is often where the greatest inequity can occur, and it is important it would not end up being taken off the balance sheet or taken out of the reporting mix.
Our amendment No. 5 in this group seeks to do something similar, to ensure we capture the most pertinent data to form a comprehensive picture of the extent and nature of the gender pay gap. We believe the wording in amendment No. 5 is more suitable because it recognises it is not sufficient to compare just part-time men and part-time women workers. We know those working fewer hours suffer a basic earnings, bonus, career progression and, later, a pension penalty relative to full-time workers over the course of their working lives, so we want to ensure we are making true comparisons. Also, as Senator Sherlock said on Second Stage, we must be careful about that full-time and part-time comparison. The Central Statistics Office, CSO, defines part-time work as less than full-time work, typically 80% or less of the full-time week in a particular role. In 2020, 29% of all women in the labour force worked part-time compared with 11% of men, according to the CSO labour force survey. We can see straight away a big gender discrepancy in the proportions of women and men working part-time. If we only compare part-time women workers and part-time men workers, we will fail to capture the comprehensive picture and, in particular, we will fail to capture the benefit associated with being a full-time worker with regard to all the other side benefits of full-time working, including greater probability of promotion, pay progression and, later, pension earning.
The Bill applies to all employees who meet the definition of employee under the Employment Equality Act. It is important to state that anybody who qualifies under that definition is protected under this legislative measure. As Senators know, that is a broad definition.
In terms of the detail that is required of employers in the types of analyses they will be undertaking and publishing on their own pay practices, in section 20A(1)(b)(i) to (viii) there is a detailed range of points upon which employers must report. In the context of requests that we add more, there are a significant number of points provided for under this legislation already. As regards how we will progress this, a point I neglected to make which would have been, perhaps, a more substantive answer to the previous discussion is that part of the proposal regarding the publication is to develop a website on which employers will put up their pay practices. That will be fleshed out further in the regulation, but we intend for the information provided under this legislation and under the regulations I will bring forward very quickly to be as publicly accessible as possible. That will have positive consequences for those employers who seek to improve their practices and negative consequences in terms of reputational damage for those who do not.
To address this set of amendments specifically, the publication of the breakdown of full-time and part-time staff may lead to employees being easily identifiable, particularly in smaller organisations. We must be mindful of the context of section 20A(8), under 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 information to ensure the personal data has undergone pseudonymisation before or when it is released. This pseudonymisation has the meaning assigned to it by Article 4 of the general data protection regulation and it means the processing of personal data in such a manner that the personal 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 is not attributed to an identified or identifiable natural person. A key element is that the more detail that is prescribed, that is, the additional details over and above those that are in the Bill already, the more it could allow for the profile of the pay of individual employees to be revealed when this information is published. The Bill is explicit in not wanting to do that. That is our concern about some of the amendments.
Section 20A provides that the regulations may require publication of the percentage of each pay quartile who are men and who are women, for example, the percentage of the most highly hourly paid 25% of employees who are men or women. This is less likely to end up in the specific identification of individuals. These amendments also seek to add a report on the difference between the mean and the median hourly remuneration of part-time female employees and full-time male employees expressed as a percentage, in addition to the existing provision for comparing male and female part-time remuneration. It is unclear what benefit this addition would add to the reporting. There will certainly be a large gap when comparing part-time and full-time employees.
Amendment No. 5 is unnecessary, given the reporting outlined under subsection (9), which would be more beneficial in this regard in addition to being less likely to identify specific individual employees. The amendments also seek to insert a reporting requirement for employers on the difference between the median hourly remuneration of persons contracted for services by a company or a public body of the male gender and that of persons contracted for services by a company or a public body of the female gender, expressed as a percentage. The Senator might wish to speak further to this, but I am a little unclear as to how this proposal differs fundamentally from the requirements of subsection (9)(a)(i) and (ii), which I intend to include in the regulations. The requirements of the Bill apply equally to public bodies and private companies and the amendments I brought forward in the Dáil have strengthened the Bill in terms of strengthening the definition of public bodies. This amendment is also unnecessary based on the content of subsection (9), which is also less likely to identify individuals.
I do not propose to accept this set of amendments. I believe we have detailed reporting provisions already. It is important that in the reporting process which we will establish we respect the fact specific individuals and employees should not be identifiable through their pay profile as a result of the reporting measures we are creating.
My points related to the GDPR aspect of it. The collection of data such as these would be very well done by a body such as IBEC or the Department on a collective where there is pseudonymisation and where people cannot be identified. The proportion of part-time employees in many employments is considerably lower than the proportion of full-time employees, so there is a possibility of identification.
The other side to it is that, albeit not perfect as a protection, we have the Protection of Employees (Part-Time Work) Act 2001. It does not allow, in the case of comparable employees, between part-time employees and full-time employees, for part-time employees to be discriminated against. It provides a means by which you can make an application, as a comparable employee, for the terms and conditions of employment to be revised. While it is not perfect and allows for objective justification, at the same time there is a mechanism built into employment law already for there to be redress where there is disparity and that disparity is known. Many of the contractors and the cleaning contractors I have encountered would be in the context of temporary agency workers who are assigned or row in, and as long as they are not under a Swedish derogation type model, which would be the exception, they also have comparable rights to a directly employed employee. There are certainly other things under the umbrella of employment law. Do we need to educate about that? Yes, we do, to make sure information is available through citizens' advice or otherwise, so people know these all interlink with each other.
There are other means of identification and creating surveys that do not allow for the particular information of individuals to get in the public domain or be easily identified or profiled in their jobs. In EU-derived protection of employees legislation and existing employment law there are protections that would target exactly what is being intended in the amendments. Therefore, I do not feel they are necessary. GDPR is not an issue in big companies but there are smaller companies for which it would cause an issue. This way it would be unwise and, therefore, I agree with the Minister.
To address the Minister's direct question, there is a difference between my amendment and the provision in subsection 9 in that section 20A(9)(a)(iii) is in respect of temporary contracts whereas my amendment is more in respect of contracted services. It is just a slightly different issue as it is with regard to services that are contracted and not people on short-term or temporary contracts. As has been mentioned, it is with regard to agency workers or others who might be providing contracted services.
I understand this is slightly more difficult to capture. I will reserve the right to introduce an amendment on Report Stage, which perhaps the Minister might be able to address. This is one of the arrows towards where we might need to go next with legislation. For example, we know in respect of the public duty on equality and human rights that there was quite a gap between public bodies beginning to understand their obligations on the public duty on equality and human rights and understanding that it also applied to their contracted services and procured services. This process is still under way.
Similarly, an understanding of transparency, and considering and thinking about the gender equality perspective that we want to be an outcome of this, should also be applied with regard to the procuring of services and the contracting of services if a company is aware it will affect the big picture in respect of them. Sadly, as I have said, we have seen cases, even in public bodies, whereby they have allowed measures that clearly do not meet equality standards within companies from which they have contracted. We have a lot of records on this. This is what I am pointing to. I am quite open as to how we get it. I recognise it may not even go into the Bill yet but an arrow needs to point to it. I do not know whether this would be through a report or regulation but it is missing.
With regard to the question of pseudonymisation, other amendments will come to the nub of this. For this legislation to be really effective it needs to be more than just a moment or snapshot of where things are. It also needs to show momentum and the patterns. In this regard, we know that one of the absolute keys of the success of the Athena Swan programme, which has been quite successful in driving cultural change in universities, is that it is not simply about pay but specifically looks at the gender breakdown of who is on what type of contract. This is absolutely key in the Athena Swan programme. It is not just about whether people are being treated equally at each level of the ladder but who is on what type of contract, who is on secure contracts, who is on temporary contracts and who is on part-time or full-time contracts. This allows patterns to be identified.
I accept there may be concerns in smaller companies but I do not see why the Government cannot table amendments stating it wants something similar to what Senator Bacik has sought in companies with more than 150 employees. The Minister could argue he does not want to have the information from the particular companies published in reports but that it could amalgamated for a sectoral analysis at a future point. It is very important that we gather the information so we can identify the patterns.
I will speak on amendment No. 4 proposed by Sinn Féin. We need to be careful that we are not saying there is anything inherently wrong with more of one gender than another being in part-time employment. Throughout the State we can look and survey and have CSO figures to state there are more women than men in part-time employment and then take this into account in how we put forward policy proposals to ensure women are supported in these roles. I do not believe there is anything wrong with a company having more part-time employees in one gender than another. I would hate to think we would put something into a Bill that would make a company feel they were doing something wrong and, therefore, mean women could not take up part-time employment to the extent they want. This is the objection I have to amendment No. 4.
I will speak on amendment No. 5. Noting Senator O'Reilly's point, it is important when we quote these figures, as I did, from the CSO on the breakdown between men and women working part-time that clearly nobody is judging any decision to work part-time or otherwise. We have to be cognisant, however, that people make decisions and circumstances not of their choosing. Where there is a very clear gender divide, and where 29% of all women in the labour force work part-time compared with 11% of men, it does require legislators and policymakers to look behind these choices to see whether there are structural barriers to women working full-time who wish to do so. I am sure this is what Senator O'Reilly was speaking to. We need to ensure that where there is a particular segregation in a workplace, for example where all the women are concentrated at lower levels and the men are disproportionately in a majority at a higher level, that it is not just because people have chosen to stay in particular role. The whole point of gender pay gap legislation is to explore gendered reasons for segregation of this nature and segregation in a part-time workforce or at a particular level in a workforce.
Senator Higgins referred to the Athena Swan programme in which I have been involved in Trinity College. It is a very successful and effective way of offering a series of metrics and a set of measures to identify barriers to career progression and promotion on the basis of gender. It is very helpful and a good model for other places as well as academia. In academia, we are speaking about larger settings. Where settings are smaller and workforces are smaller, clearly there are issues with anonymity and anonymised data. At the same time, this should not stop us moving more swiftly to apply this legislation to smaller firms. I suppose I am thinking ahead to later amendments, which will also seek to expedite the legislation coming into effect most widely. We seek to move the threshold down from the high levels currently envisaged. Looking to other countries, Sweden has wage reporting for all firms with more than ten employees and in Finland it covers firms with more than 30 employees. There are ways and means to achieve gender pay gap reporting in smaller companies and smaller workforces without exposing people to breaches of privacy. We need to bear in mind that other countries have managed to do this.
I take on board the points on the success of Athena Swan. I know from my previous job in DCU the efforts made and the drive to achieve success there. It is undertaken in many third level institutions. A voluntary charter of this nature is significant and we can learn from it, particularly in the public service. In the context of trying to get the balance between ensuring the data and information about salaries, which is obviously very personal to individuals, remain anonymised, particularly in those smaller employers, versus the idea, as Senator Higgins spoke about, of getting sectoral information, we can ask particularly large-scale public employers to undertake some of this voluntarily in the same way they undertake Athena Swan voluntarily. There is nothing stopping bodies going further than this particular legislation and this is significant, particularly in a situation where we have a risk of smaller employers breaching the anonymity of the information versus what we are trying to achieve.
Whereas I do not necessarily feel that the Bill or statute needs to be amended in order to reflect those particular changes, there are wider changes that can be achieved through the process and engagement we will create once the information has been published on an annual basis. There will also be a website where people seeking employment can look up an employer to see what its record is in the context of the pay between genders in a particular wage or salary cohort that a particular individual is seeking to enter into.
I move amendment No. 5:
In page 4, to delete lines 13 to 18 and substitute the following:
“(v) the difference between the mean hourly remuneration of part-time employees of the female gender and that of—
(I) part-time employees of the male gender, and
(II) full-time employees of the male gender,expressed in each case as a percentage;
(vi) the difference between the median hourly remuneration of part-time employees of the female gender and that of—
(I) part-time employees of the male gender, and
(II) full-time employees of the male gender, expressed in each case as a percentage;”.
I move amendment No. 6:
In page 4, between lines 18 and 19, to insert the following:
“(vii) the difference between the median hourly renumeration of persons contracted for services by a company or a public body of the male gender and that of persons contracted for services by a company or a public body of the female gender expressed as a percentage;”.
Amendment Nos. 7 and 8 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 7:
In page 4, between lines 21 and 22, to insert the following:
“(viii) the percentage of all employees of the male gender who received shares as part of a renumeration package and the percentage of all employees of the female gender who received the same form of renumeration;”.
In these amendments we move on from the most vulnerable workers, who are often those on non-fixed hour or flexible contracts, and sometimes part-time contracts. Quality part-time work is and should be an option. Unfortunately, many part-time contracts are insecure.
Amendment Nos. 7 and 8 seek to address the other end of the scale in respect of the boardroom to shop floor picture across a company. In fairness, there are some very good measures in the Bill. I welcome the fact that bonuses are identified in it. That is a good piece, in terms of attempting to identify some of the other benefits and the ways in which gender inequality in remuneration may come across.
In these amendments I identify two areas which may have been missed by the Bill. One is in respect of the receipt of shares. I have had very lengthy debates on Finance Bills over the past four years because I have been concerned about measures to make it easier to increase the proportion of a remuneration package that may be constituted by shares, which of course also means that a different level of tax is being paid. That contributes to the erosion of our tax base by allowing more favourable tax measures through the receipt of shares versus income. It is a practice which is increasing. It can mean the difference between paying the 41% rate of income tax and paying a much lower rate on a share component.
Where shares are part of an annual remuneration package, it is important that we consider the gender breakdown. It is not quite a bonus; it is a little different. I thought perhaps a bonus would capture this, but unfortunately it does not. It is something that needs to be considered. It is a widespread practice, in particular in some of the financial services areas. SIPTU and ICTU have been very active regarding the Bill. I have also spoken to the Financial Services Union, FSU, which is extremely interested in this area and is very aware of these kinds of programmes at both levels. These are common practices and require a gender analysis.
The other piece is the special assignee relief programme, SARP. It involves very favourable tax relief measures given to certain employees who are perhaps part of an international corporation and have been assigned to work in Ireland. That is another area for which we need to have analysis. We need to know whether it is effectively ending up as a top floor bonus for men within companies. Those are the two areas I would like to see addressed.
I thank Senator Higgins. Like her, I have spoken to the FSU about this Bill. I met it a number of weeks ago and it is pleased to see it advanced. As the Senator said, her amendment addresses two issues, namely, information on the difference between males and females regarding shares as part of a remuneration package and tax relief as part of the SARP. I understand what she is seeking to achieve. It is very valid to raise concerns on those particular points. In terms of engaging with my officials, there are some issues, in particular where shares do not have a fixed value attached to them. The Bill is all about looking at the exact value of what is being proposed and how that fits in is tricky.
As the Senator pointed out, there is a provision on bonuses. Section 20A(1)(b)(iii) refers to the difference between the mean bonus remuneration of employees of the male gender and that of employees of the female gender as expressed as a percentage. In terms of the design of the regulations, we will engage with officials in my Department and the Department of Finance on how we can shape those regulations to seek to capture the points on shares and the special tax rate in respect of the bonus heading. I will endeavour to see what we can do when the regulations are being drafted.
In the principal Act the definition of remuneration covers any kind of remuneration, whether in cash or in kind, that an employee receives directly or indirectly from the employer in respect of that employment. It is a real catch-all. Having argued the point in the context of what basic pay and conditions means and whether it is the same as remuneration, there are times when the two are very distinct. Remuneration is a much wider definition when one is arguing it than basic pay and conditions. Remuneration is a broad church of inclusion.
When it comes to the regulations, and specificity and reference to cases that were appealed to the Labour Court under the terms of the temporary agency worker Act, the outworking of the law in that regard lent itself to an elaboration of employment equality very well. There are very fine pieces that could inform the regulations and would meet the concerns that Senator Higgins expressed. If we are too specific in legislation, we run the risk of introducing something else we have not covered, insofar as some other benefit or something will be circumvented. Depending on the wording in a contract, Christmas bonuses are either included or not.
We have to be careful to make sure that comparable employees are dealt with. The idea of keeping something within remuneration, including anything in a broad church without being too specific, provides an opportunity for people like me to argue that something is or is not included. More often than not, to be fair, the Workplace Relations Commission, WRC, and Labour Court are more minded to include in favour of the petitioning body and complainant. That should give some comfort.
I accept that there is potential to address this in the regulations. More than bonuses, it probably involves remuneration in kind in terms of the definition. This is where the regulations will be very important. They are also important on another level because certain kinds of remuneration have a very clear financial component, for example, shares.
On the other end of the scale, childcare access, for example, could be marked as benefit-in-kind because certain areas have values placed on them even though they are not necessarily a benefit in the same way. They are more like measures to create a positive, healthy or appropriate workplace environment. I would not want maternity leave packages to be translated into benefit-in-kind and made equivalent to measures such as shares that contribute to gender pay inequality. There is a lot of nuance in what is construed as a benefit-in-kind. In that regard, it would be good to have the opportunity to engage with the Minister on thee regulations, as Senator Bacik suggested, because the devil will be in the detail.
The Bill refers to the percentage of all employees who received benefits and the percentage of the female gender who received such benefits. My concern is that, with a blunt form of reporting, a number of male employees could receive shares while a number of women employees receive a special package for Christmas or summer and so on. I do not want employers to report a blunt figure whereby they would be able to say that 100% of their employees received benefits-in-kind. The figure should be unpacked. Does the Minister know what I mean? As the Bill reads, the provision is quite blunt. We must ensure the reporting is a little more nuanced, while respecting pseudonymisation and addressing the patterns. There is scope to address them through these measures but I am a little cautious. I will reserve the right to come back on Report Stage and I might engage with the Minister before then to discuss how we might approach this issue with regulations.
The Senator has set out the complexity of the issue we are trying to address. I am always happy to engage with her on matters of detail. I am committed to looking at this matter in the context of the regulations. To reassure Senators, we are bringing forward this legislation and the subsequent regulations in order for them to work. We want this to work and we want to stop the manner in which a certain number of employers are able to skirt and circumvent normal pay practices by benefiting male employees over female employees. That is our goal here. We are not doing this for the fun of it. We are doing it to achieve that goal. I am always happy to engage with Senators about how to make legislation as strong as possible.
In that context, I will withdraw the amendment while reserving the right to reintroduce it on Report Stage.
I move amendment No. 8:
In page 4, between lines 21 and 22, to insert the following:
“(viii) the percentage of all employees of the male gender who are in receipt of tax relief as part of the Special Assignee Relief Programme and the percentage of all employees of the female gender who are in receipt of tax relief as part of the same;”.
Amendments Nos. 9, 11 and 27 are related and may be discussed together.
I move amendment No. 9:
In page 4, to delete line 25.
These three amendments are interlinked and all seek to do the same thing. They would add another element to section 20A, one which we feel it is currently missing, by making reference to trade union involvement in drawing together gender pay gap data and devising remedial action plans or measures to tackle pay discrepancies on grounds of gender. We are simply making reference to collective agreements within the amendments. We hope that by doing so, the Bill would specifically recognise the role of trade union negotiators and collective bargaining when devising pay and identifying any gender pay gaps that exist.
I thank Senator Bacik for the detail in these amendments and in so many of the amendments she has proposed today. As I said to a gentleman in Sandymount yesterday, it would almost be a pity to lose her from this august House. Indeed, I said that to quite a few ladies and gentlemen in Sandymount yesterday.
I appreciate what the Senator is trying to do by strengthening the role of trade unions in this process. Of course, trade unions have an incredibly important role in the context of vindicating the rights of workers. As I said, I have engaged extensively with ICTU, SIPTU and the FSU, on this legislation and other aspects of my Department's remit. As the Senator knows, there is a proposal for an EU directive to strengthen the application of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms. Within that directive, there is an enforcement mechanism which envisages a clear role for workers' representatives acting on behalf of workers who experience pay discrimination and collective claims on equal pay. That directive is under negotiation at the moment. We do not know what the final outcome will be and we do not know what impact it will have on our legislation when it is brought into force. I do not want to presuppose the content of the final directive or how best to enact it in domestic law, and I do not think anyone is suggesting that we delay legislation that has already had a very lengthy incubation period at this point.
Furthermore, amendment No. 11 seeks to insert a paragraph (d) into section 20A(1) that would require employers who are party to a collective agreement with a recognised trade union or staff association to consult the trade union or staff association concerned prior to, and following, the publication of the information referred to in section 2. We are a bit concerned about the lack of information on the purpose of that consultation, as the amendment is silent on that point. There is nothing in this Bill that would preclude such meetings going ahead but if we were to put something like that into the legislation, the purpose of the consultation would need to be clearly expressed within it.
Amendment No. 27 seeks to amend section 20A(5) and insert a line providing that gender pay gap information be published in such a way as to bring it to the attention of trade unions and staff associations. I have already indicated that we will create a website that will make the information being published accessible to everybody, including workers' representatives within the trade unions. As such, I do not believe this amendment, with respect, adds a huge degree of value. By virtue of the fact that the information will be published in such a way that it can be brought to the attention of employees and the public, which the subsection already provides for, it will come to the attention of trade unions and staff associations, as they are members of the public.
These amendments are not particularly necessary and would not add a huge amount of value at this point. We must also have regard to whatever requirements come from the negotiations at EU level about the equal pay directive as regards what provisions we adopt. The Government will respond to that once it comes into force.
I thank the Minister for that very full response and for his nice words to the gentleman in Sandymount. Of course, I would love to be able to continue this work elsewhere and I certainly would not stop doing it if I were fortunate enough to succeed in the by-election. If I was not in the Seanad, I would of course be out talking with people in Sandymount, Ringsend and everywhere else across Dublin Bay South but I am delighted to be here to debate these important amendments.
I take the Minister's point about the directive. The website being accessible to all is very welcome but the key aim of these amendments is to ensure that the voice of trade unions and collective representatives of workers is given a status or particular recognition in the Bill. That would be missing if the information were simply published on a website that is accessible to all. That website is very welcome in itself but these amendments seek to do something else. I will withdraw them at this point as I do not want to delay the Bill in any way. The point has been made and I am pleased to hear the Minister's response.
I move amendment No. 10:
In page 4, line 32, to delete “(if any)”.
I will not speak for long on this amendment. It is about removing the ambiguity that exists in this part of section 2 to make it more straightforward and clear. I look forward to the Minister's response.
I thank the Senator. The proposed amendment to section 2 seeks to delete the words "(if any)" with regard to 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 gaps.
The purpose of the words "(if any)" is to provide for circumstances where there are no measures that can be taken by a particular employer to eliminate or reduce the gender pay gap. In this particular Bill, we have to allow for the fact that there may be a certain reason for the pay gap. It may be due, perhaps, to segregation in education and the overall labour market, whereby in certain sectors women are under-represented in some areas. It is a structural issue and, therefore, not one within the resolution of the employer in question.
To remove the words "(if any)", would basically mean the legislation would appear to put an obligation on the employer. In most circumstances, that will be within the employer's grasp but it may not be in every circumstance. In many cases, it will be possible for employers to pursue positive action measures that are within the law and will, over time, increase the number of women in higher remunerated roles and levels in firms. The reasons, in the employer's opinion, for any gender pay gap must be published by the employer in all circumstances. Leaving these two words in allows for the recognition of the diverse range of circumstances that may be faced by employers. As such, I suggest we leave the words in the Bill.
I move amendment No. 11:
In page 4, to delete line 34 and substitute the following:
(d) employers who are party to a collective agreement negotiated with a recognised trade union or staff association to consult with the trade union or staff association concerned both prior to and following upon the publication of the information referred to in this section.”.
I move amendment No. 12:
In page 4, line 37, after “regulations” to insert “and will outline such supports as may be offered for the same”.
On amendment No. 10, putting a side clause into brackets is something I always resist. Now that it has been opened as a possibility, I will be able to get more elaborate in my future amendments. It opens up all kinds of new versions of amendments. I am noting it for future reference.
With amendment No. 12, I am a little concerned there might be a bit of a chilling effect or perverse incentive, which I know is not the intention, in the new section 20A(2), which states, "In making regulations under this section, the Minister shall have regard to the estimated costs of complying with, and enforcing, such regulations." My concern is that this could be read as a disincentive. It could be read, as far as is practicable, that it could be expensive to enforce regulations and it may also be expensive for companies to comply with them. That might act almost as a lowering of the bar of ambition and it reads that way. It is a caveat that covers almost all of section 1. That is my concern.
My amendment simply tried to make the subsection clear by adding the words, “and will outline such supports as may be offered for the same”, to effectively bring out what I imagine is the intent of the subsection whereby the Minister will be aware that costs will be associated with compliance. There may be a cost associated with the enforcement of regulations but that cost should not be a dissuasion to action. Rather, it is something that should be considered. My amendment, therefore, simply suggests that if costs are considered and recognised, information is then provided as to what supports might be available to address those costs, rather than the costs being a reason to perhaps delimit regulation or lower our ambition in respect of regulations.
I come back to my earlier point that we are not entering this process in a de minimis way. We are seeking to be progressive and have broad regulations. I do not read the text to which the Senator refers as having a chilling effect. It is prudent to have a clause such as this. I certainly do not see it as one that will in any way limit our ambition to achieve pay equality between male and female employees.
The purpose of section 20A(2) is to ensure that when the Minister is making regulations, he or she has regard to the estimated costs of complying with and enforcing such regulations. If we were to add the phrase suggested by the Senator, it would imply that direct financial support was being provided by the Department for some or all elements of this. It opens up a very wide potential commitment and liability, perhaps, on the part of the Department.
We will obviously provide employers with very clear guidance and instruction as to how and when to calculate and report on their gender pay gap. However, we will not provide them with direct financial supports in respect of how they do that. As I noted, the Department will develop a website and there will be an information campaign. There will be substantial provision of information to employers, especially initially, as the legislation applies to various categories of employers. The current provision is prudent. I am concerned that the Senator's proposal would create an expectation of potentially significant financial help. I am not in a position to sign up to that at this point.
I thank the Minister for his answer. I accept his argument in respect of the language I have proposed. As it could create an ambiguity, I will withdraw the amendment, although I am still not reassured as to the absence of a chilling effect.
As I said, I sat for five years on the Joint Committee on Employment Affairs and Social Protection. I am well aware that every time an additional level of work or compliance is required, a strong lobby is made for cost being a reason for delay, a lowering of ambition or a curtailment or dilution of regulations. That argument is made at each point. I am concerned that this clause will allow a future Minister, not necessarily the current Minister, to use the cost of compliance with these measures as a reason to dilute the intent in some way.
I accept the Minister's argument in respect of the language I have put forward. I am concerned, however, because I still believe the current phrasing leaves a hostage to fortune. I may revisit this matter on Report Stage. I would appreciate if the Minister and I could engage on this before then. The phrasing suggests that the potential cost of compliance is something to which the Minister would have regard. I do not know why the Minister would have regard to cost in this area, if not to affect the way in which he may make the regulations. I am concerned about that dynamic. I will not press the amendment at this point because I accept the Minister's argument. I do not want to create a positive framing rather than an additional liability.
Amendments Nos. 13 to 21, inclusive, are related. Amendments Nos. 14 to 21, inclusive, are physical alternatives to amendment No. 13. Amendment Nos. 19 and 20 are physical alternatives to amendment No. 18. Amendments Nos. 13 to 21, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 13:
In page 4, to delete lines 38 to 41, and in page 5, to delete lines 1 to 10 and substitute the following:
“(3) Regulations made under this section shall not apply to an employer having fewer than 20 employees.”.
These are the amendments seeking to lower the threshold at which the legislation will apply to different organisations. I spoke on Second Stage about this and I am using the Minister's own term when I refer to the long incubation it has had. Given that long incubation period, and that we in Labour first introduced legislation in this House in May 2017, I really do not see why it is necessary to continue to have this phased or incremental approach to bringing the legislation in. With respect, it is unduly cautious, particularly given that, as I have said, employers, trade unions and workers have all been expecting and anticipating this for so long. It is in place in so many other jurisdictions, including the one closest to us. I do not see why, therefore, we still have this very cautious incremental approach where the legislation is first to apply to employers with at least 250 employees, then to some employers with 150 and so on.
I will give the Minister a few very clear reasons as to why we should be setting the threshold lower from the start. First, the original legislation under which the Irish Human Rights and Equality Commission, IHREC, was established gives it powers of enforcement and powers of oversight for gender equality and other equality action plans in respect of all employers with 50 or more employees. That was why, in the legislation it we put forward, the Labour Party set the threshold at 50. I am grateful to Senator Sherlock for giving me the following data. If we set the threshold at 50, this will only capture 1.4% of all enterprises and workplaces, according to the CSO. This will capture only 57.5% of all employees. Thus, even 50 employees is quite high by Irish standards because so many of our citizens and residents work in small companies and enterprises. That is why, in our amendment No. 13 we are going a little further, being a little more bold or ambitious and saying let us set the threshold at 20 employees. We have known for a long time that this was coming. The Government's Bill is eventually going to apply to companies with 50 employees or more, why do we not go a little further than that? If we set the threshold at that level of 20, below the original threshold of 50 we proposed in 2017 and below the threshold in this legislation, we would still only capture 4% of all enterprises, Senator Sherlock tells me, but we would capture 71% of employees. Thus it will have quite a dramatic impact in terms of increasing the number of employees to which it will apply.
I already pointed out that in other jurisdictions we see similarly ambitious legislation. Not in Britain, which has set the threshold high, but then it has a greater number of large employers. We can examine the examples of Sweden and Finland, however. In Sweden, gender pay gap legislation enacted in 2009, more than ten years ago, provides for wage reporting for all firms with ten or more employees. In Finland, the legislation applies to firms with 30 or more employees. Consequently, we think that at the very least the incremental approach should be abandoned and we should see the legislation applying from the outset to firms with 50 employees or more but preferably, we think we should go further now and have the legislation apply to employers with 20 or more employees. I look forward to hearing more form the Minister on this but I emphasise that this is in the context of a long incubation period of a series of years where so many employers, particularly those with 50 or more employees, have already got in place gender pay gap reporting mechanisms. This means that they are ready and waiting for the legislation to be enacted. Furthermore, there are already delays built in, in the form of the commencement date, the need to prepare the regulations and so on. As such, even upon enactment, we know that the legislation will not immediately come into effect. As I said, an overly cautious and incremental approach is being taken.
I will speak to amendment No. 14, which is the exact same as the Labour amendment. It seeks to delete the term "50 employees" and replace it with "20 employees". I am going to make many of the points Senator Bacik has made. We just want to get a truer reflection of what is happening by widening the number and scope of businesses which will be obligated to keep this information about their employees. I do not think this is a huge burden. In the long run it is important for us to have this data. We need a truer reflection of the inequality that exists in the workplace and I do not think we will have pushback from industry. We are actually excluding companies that want to do this as well. I am sure there are many businesses which are very proud about the cultures they have developed, be that making clear their positions in various referendum campaigns or flying Pride flags and making clear their backing for equality. Consequently, we should include as many businesses as possible to get a truer view of what is going on and the inequality that exists.
I will be brief. In an ideal world, this would apply everywhere in every company and would be administered appropriately in every company. I am mindful, however, of the advice that came through the Oireachtas Library and Research Service, which states:
Given the experience that has been identified in the UK and other jurisdictions regarding the administrative burden that gender pay gap reporting can place on smaller organisations, the committee also recommended [this was the joint committee in its pre-legislative scrutiny report] that:
Consideration should be given to the capacity of smaller businesses to meet reporting requirements.
The Library and Research Service, which is just excellent, contacted the UK Equality and Human Rights Commission, EHRC, on 24 January 2019. The EHRC said that:
... while there was full compliance ... there were issues with regard to the capacity of organisations to calculate their [gender pay gap]. These capacity issues were particularly pronounced for small organisations (between 250 and 300 employees), especially for those organisations which did not have designated HR capacity.
That is quite common with companies which one would imagine should have a HR capacity because of their size. Thankfully, however, not all of them do. I have made a good living out of outsourcing. From that perspective, while there should be a drive towards this and between part-time and full-time employees and different categories of employee, there is a right of complaint to the WRC. In the context of the reporting aspect, however, we should certainly consider the burden on the employer. That said, it is really important that there is a full-scale move towards universal gender equality.
It would be great if we saw it in all companies, in one sense, but there might be an issue around anonymity, depending on how small the company is. Even with 20 employees there is a big issue around anonymity. However, the issue is not really about how ready those larger companies are but how ready the smaller companies are. As such, while I accept the arguments that we have been waiting for this since 2017, smaller businesses have not, and they have not been putting in that preparation. Covid has had a major impact, particularly on small businesses, so I am not sure that this is the right time to be jumping in feet first for every business. This is only one piece of the puzzle but it is an important piece.
It will give us a better picture of how things are actually going across the country, apart from anything else. As Senator Seery Kearney has said, there are other measures in place. It is not as if this is the only thing that will address the gender pay gap.
As I understand this grouping of amendments, there are several issues pushed together. I will address just two of them in the context of smaller companies. It is an issue if almost half of the employees in the State are not going to be captured in this legislation when we consider smaller companies. This is a concern. Again, it is a matter of trying to look at what the patterns are for how this can be addressed and the ways it could be addressed. It may be that not all of the provisions would apply to those companies, but there must be something that gives us a way or a route towards every company, to be in line with Sweden, Finland and other countries where this is considered as part of the normal practice in any company and becomes part of the self-awareness and the corporate business culture and ethics, which many companies have As Senator Warfield has mentioned, a number of smaller companies may be quite happy to comply with these regulations but the Bill, effectively, excludes them from doing so. This is one of my concerns.
I am also very aware of another aspect with regard to smaller companies. I do not know if it is captured in the regulations and I will certainly reserve the right to bring an amendment on Report Stage. The Minister might consider a measure for the company that is a group of companies. Companies might be structured in such a way with a parent company and multiple subsidiary companies that are all part of the same company. Effectively, the main company would meet the threshold of passing 250 persons, possibly substantially, but a number of its subsidiaries may not. I am a little concerned about this as an issue in the context of the smaller company piece. There are smaller businesses that we all have in our minds when we speak of smaller companies, but sometimes smaller companies are part of a suite of subsidiaries. We must not end up with a loophole developing there.
The other element I feel very strongly about is the three-year delay. I will bring this back on Report Stage and I will push votes on this point or on something similar to this. Perhaps I can adjust the numbers somewhat on Report Stage on the idea of the three-year delay for employers of 150 employees. A three-year time delay is so long before we move on it. It is one thing to talk about the companies of 50 employees, but section 20A in the Bill states that the regulations "shall not apply to an employer having fewer than 150 employees until the 3rd anniversary of the making of the first regulations under this section". This is a real concern for me. The third anniversary seems very far out.
The House will note that Sinn Féin has put forward an amendment around the 12 months following the second anniversary. My amendment suggests the first anniversary of the commencement of the section in the Bill. I am concerned about the rigidity of that provision in the section because it may be that some companies are not ready. The pseudonymisation may take time, but I would prefer it if the Minister gave himself the scope to say, for example, that the Minister will commence the application of the section to employers of 140 employees or fewer at a date that will not be later than the third anniversary of the commencement, and to have the third anniversary specified as an end point or as a caveat, not placed as a limitation.
As it currently stands, and as I read it, it would take primary legislation to apply these regulations to employers of fewer than 250 employees before the second anniversary, and to employers of fewer than 150 employees by the third anniversary. Rather than requiring brand new legislation to come through, why not build in a flexibility so there is scope to move faster if this is going wonderfully when we are 12 months in, when all those companies of 300 employees are already complying and we feel that we are ready to roll with the companies of 150 or 250 employees? There is scope for flexibility here. We may have underestimated businesses by placing such a rigid and lengthy timeframe on the application. I am sure there are some companies and employees of companies, and even some HR staff, who might be a bit disheartened to think, "We will have to wait another three years before we can start to apply these regulations."
I thank the Senators. We are dealing with a number of proposals in this section including: reducing the reporting exemption for employers with more than 50 employees to employers with more than 20 employees; reducing the reporting period for employers with more than 150 employees from three years of the making of the first regulations, to two years; reducing the reporting period for employers of more than 250 employees from two years of the making of the first regulations, to 12 months; and requiring employers with more than 50 employees to report on their gender pay gap from three years from the making of the first regulations.
It is appropriate to recognise that when setting the reporting thresholds and the incremental timeline, the unions and the employer representative groups were consulted. There was an agreed approach to how the requirements of the legislation would be rolled out, with a focus on allowing the smaller companies the time to learn from larger companies, and how the larger companies would already have the capacity to undertake significant work like this and publish the wage surveys and other relevant pieces of data, given the HR and mechanisms available to them.
Many Senators have recognised that employers have been working on the basis of this legislation and have been expecting this legislation. In fairness, they have been expecting this legislation and they have seen those timelines set out. If we are talking about such employers expecting something, there are proposals to shift quite radically the timelines in the context of what is suggested in this set of proposals. I am cognisant of the point made by Senator Pauline O'Reilly, and particularly for those smaller employers, on the very significant change to an agreed timeline. Making such a change will, and we would all admit this, add an administrative burden. It is one that should be added as we go forward. As these smaller companies and employers are in the middle of recovering from the Covid pandemic, it is a burden, but I do not believe we should at this time break the agreement negotiated across the various sectors for those smaller employers.
On pseudonymisation and bringing down the threshold to employers of fewer than 20 employees rather than 50 employees, I have made the point that this would be problematic in ensuring anonymity when the data about pay is published by the smaller companies. It could potentially lead to salaries and wages of individual workers being identified in the context of the information coming out. This is certainly not something we were seeking to achieve or seeking to allow to occur under this legislation.
Senator Bacik referred to the percentage of employees who would be covered by this legislation. Senator Sherlock also cited figures. Loath as I am to get into a statistical analysis argument with Senator Sherlock, on our side we believe that 65% of employees will be covered by this legislation when it has been fully rolled out across all categories. This is just short of two thirds of all employees in the State. This is a significant amount.
I will make two final points. A number of Senators have described some companies as rearing to go. There is absolutely nothing to stop voluntary reporting.
There is nothing left for them to advertise and Senator Warfield spoke to many companies making a virtue out of their passion for equality. Many companies can publish this information and a template will be there for how they will publish the information and the technique in which the various reporting categories will be available, and they can take advantage of this.
One of the changes I made on Report Stage in Dáil Éireann and which I spoke to briefly was to shorten the period for review of this Bill. It is important when we are making a significant change, as this Bill will be, that we give it the time to work so that we are reviewing a completed process. It is also important the review is not so long that it is on the never-never. I felt that five years to undertake a review of this legislation was too lengthy so that is why I have brought that down to four years. That will allow a full cycle of all companies with more than 50 employees to have been given the opportunity to implement this. At that point, the Legislature will have the opportunity to review and perhaps make changes. As I said earlier, there is EU legislation coming forward as well and who knows how that will affect requirements. However, my understanding is that within the directive, the EU's threshold is 250 employees. Its threshold is miles above the one we are looking to introduce. That is not to say that should be used as a ceiling for ourselves in any way but it is relevant in terms of the figures we have chosen.
I thank the Minister for his response. I would always defer to Senator Sherlock on matters of statistics. Her figures are from 2018, so I am sure the Minister arrived at 65% of employers and at that point the threshold of 50 employees would have captured 57.5% of all employees. That may well have gone up, as the Minister said, to 65%. The point is this will only be the case once the legislation is fully in force with the threshold at 50 employees, which will take some time based on the incremental approach. Our argument was that setting it to 20 employees now would capture a greater proportion of all employees - nearly three quarters - and this would have been preferable. However, I acknowledge the Minister has made that amendment providing for a shorter review, and that is welcome.
I also acknowledge the Minister's point that this legislation is not the ceiling of our ambition. We were talking about this earlier in the context of the climate Bill as well, saying employers could do better and apply the provisions of the legislation voluntarily in a broader and more expansive way. That brings us back to the Athena Swan programme, which is based on incentivising good practice by providing bronze awards. I was proud to lead the Trinity College Dublin law school's successful quest for a bronze award in recognition of good practice in promoting gender equality. That is an approach of the carrot rather than the stick to incentivising good practice, and we see a similar approach taken to gender pay gap reporting in Australia, where good practice employers are formally acknowledged. That is also worthy of mention.
In the circumstances, I will withdraw amendment No. 13, and I reserve the right to bring it back later.
I move amendment No. 14:
In page 4, line 39, to delete “50 employees” and substitute “20 employees”.
I move amendment No. 15:
In page 4, line 41, to delete “250 employees” and substitute “150 employees”.
I move amendment No. 16:
In page 5, to delete lines 1 and 2 and substitute “the 1st anniversary of the commencement of this section.”.
I move amendment No. 17:
In page 5, line 1, to delete “2nd anniversary of” and substitute “12 months following”.
I move amendment No. 18:
In page 5, to delete lines 3 to 6.
I move amendment No. 19:
In page 5, line 4, to delete “150 employees” and substitute “50 employees”.
I move amendment No. 20:
In page 5, line 5, to delete “3rd anniversary of” and substitute “18 months following”.
I move amendment No. 21:
In page 5, line 8, to delete “or (c)”.
Amendments Nos. 22, 24 and 29 to 32, inclusive, are related and may be discussed together.
I move amendment No. 22:
In page 5, line 11, to delete “may” and substitute “shall”.
I will speak to amendments Nos. 22 and 24 and I referred to this matter on Second Stage. These amendments seek to substitute "shall" for "may" in two instances, in section 20A(4) and section 20A(5). It is an attempt to address the lack of specificity in the provisions, which provide that regulations "may" prescribe a number of matters but do not set out any requirement that the regulations would prescribe, for example: "the classes of employer to which the regulations apply" or the frequency with which the information will be published in its format and so on.
As I said on Second Stage, many of us would have a concern that it is unduly vague. It is enabling legislation but there is a vagueness as to how the information is to be published, in what format it will be published and to whom it will apply. There is also a question around how often it is to be published. The Minister has said it will be published annually, but section 20A(5) states it "shall not be more frequent than once in each year". That could mean a number of different things so there is already a lack of exactness in that. There has been such a long incubation period that it would be important those to whom it will apply and those who have to carry out functions of reporting under it would have greater clarity in the primary legislation on the way in which it will take effect. We are attempting to tighten up the language and to make it more prescriptive in format.
In earlier amendments, we wanted to specify the role of trade unions and we are conscious this has not been formally recognised in the legislation. We are hopeful that might be addressed in the regulation, and as the Minister has said, he has engaged with trade unions and other stakeholders, which is welcome. Again however, there is a lack of clear prescription in the provisions we are trying to address with amendments Nos. 22 and 24.
This is about specificity. It is worth remembering that when we pass legislation to allow for regulations to be made, that represents the Oireachtas giving power to the Minister and that is one of those key provisions.
This is us giving power to the Minister in respect of regulations. It is power that is held within the Oireachtas that is transferred to the Minister almost on trust of delivery of certain pieces. In being asked to transfer those powers in respect of regulations, we are doing so on the understanding of a whole set of regulations. The concern when the word "may" is used rather than the word "shall" is the fear that some regulations under this section may be made and others may not, or they may be made differently or they may be commenced in a different way. There is that question regarding a general principle. In my later amendments I use the word “may” to facilitate being consistent with the style of the Bill. However, I note the best practice is that the word "shall" would be used. In making the decision, which many of us are happy to make in this case, to give the Minister the power to make regulations in respect of these important matters, we do so with the full knowledge of the sets of regulations and that they will interact with each other effectively. We do it as a suite knowing that the Minister shall make those regulations rather than that he may make some and may not make others. This is not a question of the Minister’s intent, it is more of question of best legislative practice and clarity.
I thank the Senators for those comments. I understand it is the intention of Senators to ensure the reporting requirement is as robust, broad and far-reaching as possible. That is an intention I also share.
Subsections (4) to (9) of section 28 are drafted in a way to allow for flexibility when drafting the regulations should that flexibility be needed. It is important the regulations will need to be clear and specific. It is my intention they will contain all the information listed in subsections (4) to (9) unless some issue arises in the drafting stage. For example, with subsection (4), it may be the case that the regulations will prescribe all of the categories of information listed, however, if in some circumstances a combination of these would lead to some degree of confusion, we need to have some flexibility for that as well. The Bill provides for a flexible framework for the regulations so that the policies and principles are clear without creating a situation where absolute strict adherence to the wording may cause confusion for some of those impacted by the regulations, or create some degree of impossibility or some other particular anomaly. It is to provide for some degree of flexibility in the drafting of the specific and, what everyone agrees will be, quite detailed regulations when the time comes, allowing for that degree of responding to the particular circumstance of the Minister while at the same time clearly setting out the significant ambition in the relevant subsections.
I thank the Minister for that response. Does Senator Bacik wish to respond?
Certainly, we will all be very anxious to know what is in the regulations. That is clear. It would be helpful to have more clarity on it. I will not press the amendment at this stage. I will withdraw it and reserve the right to reintroduce it at a later stage.
Amendment No. 23 is in the names of Senators Warfield, Boylan, Ó Donnghaile and Gavan.
I move amendment No. 23:
In page 5, between lines 15 and 16, to insert the following:
“(aa) regulations made under this section will apply to legal partnerships and multi-disciplinary practices as defined in the Legal Services Regulation Act 2015.”.
This amendment widens the remit of the legislation in terms of the different working arrangements that exist such as with respect to legal firms, which I mentioned. I would be interested to hear the Minister’s response.
Do any other Senators wish to speak? In that case, I invite the Minister to respond.
I understand the Senators' intention in tabling this amendment. Our intention is to ensure the reporting requirements are as far reaching as possible but it is important to note, within the context of this legislation, that no other class of employer other than by reference to size is explicitly referred to in this Bill. The Bill sets out the regulations that may prescribe the classes of employer to which the regulations may apply. The intention is the regulation will apply to all classes of employer, including individual Departments and agencies.
Where a legal partnership or some multidisciplinary practice meets the size criteria to fall within the categories of the regulation as an employer, it will fall within the scope of the regulations made. However, 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 in any gender pay gap calculations. The Senators’ proposed amendment will not remedy that fact. Such partnerships and multidisciplinary practices are and will continue to be encouraged to voluntarily publish separate gender pay reporting regarding partners. I am aware some organisations are already engaging in this.
I do not think the Senators’ proposal will particularly address the issue they are seeking to highlight. I do not think it is useful at this stage to depart from identifying or singling out employers in terms of any description other than the size criteria that we have been using up to this stage.
Is Senator Warfield pressing the amendment?
Amendment No. 24 is in the names of Senators Bacik, Hoey, Moynihan Sherlock, Wall and Higgins.
I move amendment No. 24:
In page 5, line 22, to delete “may” and substitute “shall”.
I will withdraw the amendment.
Amendment No. 25 is in the names of Senators Bacik, Hoey, Moynihan, Sherlock and Wall.
I move amendment No. 25:
In page 5, line 23, after “manner” to insert “(which shall include, if the employer concerned maintains a website, publication on that website)”.
This amendment, which is drafted in the same spirit as amendments Nos. 22 and 24, seeks to ensure there is greater clarity about what will be prescribed in the regulations. We have specified the manner of publication "shall include, if the employer concerned maintains a website, publication on that website". The Minister said something about the issue of publication on a website which is welcome, but there is a lack of information in the legislation as to exactly what publication will entail. We were trying to provide more clarity on that.
Do any other Senators wish to speak?
This amendment to subsection (5) of section 28 seeks to provide specific information regarding the manner in which the gender pay gap information is published by inserting text that will ensure the regulations provide, that where an employer maintains a website, for the publication of information on that website. I have spoken to this already. The regulations will set out a clear requirement for employers on how and where to publish this information and websites seem a very likely place for that. We are looking into having a centralised website as well.
At this point I do not want to presuppose the drafting of the regulations in instances where the employer concerned – this relates to the obligation on the employer concerned - does not have a large online presence and the regulations will allow scope for more nuance on that point. Most employers have a significant online presence but it is not absolutely the case at this stage. We are all going in a similar direction on this one. We would like a little more room for nuance in the context of the regulations without having it in the primary legislation.
Briefly, given the long incubation period, there is a slight concern still that there is not greater clarity. One would assume there will be a centralised website. That seems to be the model elsewhere in most other jurisdictions, where it is not only a requirement that employers would publish on their own website, which adds to the administrative burden on employers, particularly once we get to the employers with 50 or more employees rather than the really large employers. We suggested employers would publish on websites. That was to push a little more on what exactly will be required of employers. Will they be asked to publish directly to a centralised source or will they be published on their own websites? The Minister will be consulting trade unions, employers and other groups. There has already been extensive consultation in recent years. It is unfortunate it was not made clear earlier there would be a centralised website, but I am glad to hear it. I will not press the amendment.
I move amendment No. 26:
In page 5, lines 23 and 24, to delete “(which shall not be more frequent than once in each year)” and substitute ‘‘(which shall be at least annually)’’.
The legislation provides that it will "not be more frequent than once in each year". We are putting it somewhat differently with "at least annually" to give greater clarity. We would like to hear from the Minister. I believe he indicated that it would be an annual requirement.
This amendment to section 20A(5) seeks to ensure that the reporting of gender pay gap information by employers occurs annually. The subsection as drafted provides some assurance to employers that the requirement to report will not be less than annually. While it is my intention that reporting will be annually, though, the subsection provides the level of flexibility that I referred to earlier and allows for some information to be set out in the regulations rather than in the Bill itself. It is my intention to set out clearly the form, manner and frequency of reporting with the reporting being done annually, but I would prefer that the final Act remain flexible should an issue arise during drafting of the regulations or when reporting commences. It will be an annual reporting process, but I wish to maintain a slight degree of flexibility by allowing that to be set out in the regulations as opposed to in the primary legislation.
I move amendment No. 27:
In page 5, line 27, after “relates,” to insert “and their recognised trade union or staff association (if any),”.
I move amendment No. 28:
In page 5, to delete lines 29 and 30 and substitute the following:
“(6) (a) Regulations made under this section shall require the employer to publish information in respect of a public body and, for the purposes of this paragraph, a person holding office in or employed in the service of a public body is deemed to be an employee of that public body.”.
This amendment is self-evident. It seeks to provide more prescriptive language in section 20A(6), which reads: "may require the employer to publish information in respect of a public body."
There is some correspondence between this amendment and mine on contracted services and who is considered an employee. It is an attempt to provide clarity in that issue.
The purpose of this amendment is to deem a person holding office in or employed in the service of a public body as an employee of that public body for the purposes of reporting gender pay gaps. I understand Senator Bacik's intention to ensure that the reporting requirement is as broad as possible. However, similar to amendment No. 23 on legal partnerships or multidisciplinary practices, the legislation will only apply to employees of the public body that would fall under the definition of an employee in the Employment Equality Acts. Where a person holding office or employed in the service of a public body meets that definition, that information will be required to be reported. The situation will be similar for office holders in private companies. We are using the existing definitions, which provide the relevant protections.
I move amendment No. 29:
In page 5, line 29, to delete “may” and substitute “shall”.
I reserve the right to reintroduce this on Report Stage.
I move amendment No. 30:
In page 7, line 15, to delete “may” and substitute “shall”.
I reserve the right to reintroduce this on Report Stage.
I move amendment No. 31:
In page 7, line 21, to delete “may” and substitute “shall”.
I reserve the right to reintroduce this on Report Stage.
I move amendment No. 32:
In page 8, line 12, to delete “may” and substitute “shall”.
I reserve the right to reintroduce this on Report Stage.
Amendments Nos. 33 and 34 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 33:
In page 8, after line 38, to insert the following:
“(11) The Minister may set out in regulation such financial penalties as are deemed appropriate where a concerned person does not comply with the provisions of section 20A.”.
We mentioned the carrot earlier, but some of these amendments relate to the stick, so there is a combination. They refer to steps that might be taken to ensure that there are consequences for non-compliance. The "may" and "shall" in some of the amendments I have withdrawn related to the Minister making regulations, but some also related to what employers may or shall be required to do. I worry that there may be a level of ambiguity in the regulations and the potential for very small consequences for non-compliance. There has been some strengthening of this area in the Dáil, but as well as empowering the IHREC to take matters to the Circuit Court and High Court, the Minister should be able to set out in regulation financial or other penalties for non-compliance. It would be appropriate that there be consequences for those who do not comply with section 20A.
I wonder whether I have replicated my amendments. I apologise - that is amendment No. 37.
There is an argument for financial or other penalties, given that non-financial penalties may be appropriate. I will get to those shortly. Some of them are set out in amendment No. 36. In amendment No. 37, I will discuss whether there should be consequences for non-compliance with section 20A other than those that the IHREC is empowered to press and if the Minister should be able to set out financial penalties or consequences. There should be consequences for non-compliance with an order granted by the Circuit Court or High Court, a matter that we will come to later.
How does the Minister envisage enumerating in the regulations a sense of consequence for non-compliance?
The proposed amendment seeks to provide the Minister with the option to set out in the regulations financial or other penalties where a concerned person does not comply with the provisions of section 20A. I agree with Senator Higgins that, although we are seeking to encourage compliance through a carrot, we also need the stick. Strengthened by my amendments in the Dáil, the Bill provides a significant stick and I am confident that the enforcement procedures in the Bill are sufficiently robust to address any lack of compliance. The IHREC's power to take an action to the Circuit Court or, following my amendment, to the High Court provides significant scope for measures to ensure compliance.
It is important to think on what we have done. We have given an independent body oversight powers where a company is in breach of its obligations under section 20A. We all know that the IHREC has grown in size, strength and confidence in terms of its engagement in the public sphere. We are empowering it further through this legislation.
It is important to say that fixed penalties in the corporate sphere often do not act as a sufficient deterrent. Some larger entities can just take the hit.
They pay the fine and move on whereas what we are providing for is an order made by the Circuit Court or the High Court. That is significant, particularly if the entity continues to breach the order and finds itself in contempt of court. Following the amendments we have made on Report Stage in Dáil Éireann, the entity could find itself in breach of a High Court order and in contempt of the High Court. That is especially significant and will be seen very much as a disincentive to employers in terms of failing to undertake their obligations under section 20A. A strong, and now further strengthened, stick is provided for within this legislation.
The recourse to the Circuit and the High Court in and of itself is very powerful from the point of view that it is public. While larger companies may be able to buy their way out through paying fines and penalties, what is of greater value is the need to avoid potential reputational damage by not ending up in the Circuit or High Court. The very welcome decision by the Supreme Court in the Zalewski case also empowers those taking a case to the Workplace Relations Commission, WRC, and the Labour Court because such cases are now also held in public. Journalists can report on proceedings, which makes them more accessible. The potential for reputational damage becomes an additional, inbuilt deterrent, which is very useful. I support the Minister's arguments in that regard and agree this element of the legislation is very important.
I commend the Irish Human Rights and Equality Commission, IHREC, and note its capacity and responsibilities are growing, but I strongly recommend that its resources and funding grow commensurate with that. Its brief is very wide now and it has an extraordinary level of responsibility, including in terms of the UN Convention on the Rights of Persons with Disabilities, UNCRPD, and so many other elements of equality legislation which it is effectively implementing.
The nature of the work of IHREC is such that it not going to be able to take every case to the Circuit or High Court. In that context, I was endeavouring not to require the Minister to do so but to give him or her the power to do so. Such powers as the Minister has in regulation need to be given to him or her through primary legislation. I was seeking to ensure we gave the Minister those powers, if required, in respect of financial penalties if we saw, for example, a pattern of non-compliance emerging across a sector. A very high-profile company might be brought to court but we should not, as legislators, rely too heavily on the reputational piece. We need to look to compliance and measures in a circuit where we dis-imagine, so to speak, the consumers. We should not cede our power as representatives of citizens over to consumer embarrassment or consumer pressure, for example. We need to ensure citizens are represented.
It is true that for some companies the reputational piece will be important but for all companies, even those who do not have a reputational concern, there still needs to be transparency. I get the sense the Minister is keen not to accept amendments so that the Bill does not have to go back to the Dáil. I am not saying that in a bad way because I know he accepted amendments in the Dáil, but I would ask him to consider, between Committee and Report Stages, whether the Bill as it stands gives him the scope in respect of either financial or other penalties within the regulations or whether it is going to be solely the Circuit or High Court route, which will be a very important and strong route. I have absolute confidence in the IHREC using that route judiciously and effectively and it may not be advisable for the Minister to have such additional powers as I seek to grant in these amendments.
I move amendment No. 34:
In page 8, after line 38, to insert the following:
“(11)The Minister may set out in regulation such financial or other penalties as are deemed appropriate where a concerned person does not comply with the provisions of section 20A.”
I will withdraw this amendment.
Amendments Nos. 35 and 36 are related and may be discussed together.
I move amendment No. 35:
In page 8, after line 38, to insert the following:
“(11) The Minister may by regulation specify circumstances in which a company shall be required to provide evidence of compliance with section 20A.”.
It is important these amendments are not grouped with the previous ones because they are not directly designed as a penalty but rather as a consequence in respect of non-compliance. Penalties and consequences are quite different and this is, in effect, about ensuring those companies that have chosen not to be compliant with section 20A are not benefiting from that or rewarded in any respect through public funding or public resources. This would be one of the most powerful measures, frankly, alongside an individual order for compliance with the High Court.
We talked about the Athena Swan and its great success as a voluntary code, but we need to be very honest about it. One of the main reasons it was so successful was that there were consequences for not complying. Universities were made aware they would not get funding from the Irish Research Council if they did not meet certain standards. They knew that while compliance was voluntary, non-compliance would effect the opportunities available to them, their engagement with public funding and access to same. This is less about a financial penalty and more about a consequence.
These amendments suggest it would be reasonable to require companies to provide evidence of compliance with section 20A. Amendment No. 36 is a little bit more specific and suggests that situations in which evidence of compliance with section 20A might be required would include when applying for public grants, funds or loans or submitting tenders for public contracts. This is very reasonable in the context of determining the giving of grants or loans, the investment of public funds and resources in a company or the giving of public support to a company. This is also related to the subcontracting issue raised earlier. If we want to delegate services to companies by way of public contracts, we want to know they are compliant with the gender pay gap information provisions, there is full transparency and they are engaging with section 20A, which is a sign of best practice.
Amendment No. 36 could provide us with one of the most powerful tools in ensuring companies seek to be compliant with the provisions of this Bill. The turning point for Athena Swan was when consequences flowed from non-engagement. I urge the Minister to consider seriously amendment No. 36 which could be a game changer.
I welcome colleagues and the Minister. We are ready to continue on amendment No. 35, to which Senator Higgins was speaking.
I had pretty much concluded and I am looking forward to the Minister's response.
Does anybody else wish to contribute? We will be all right once we get going again.
It will take a moment for me to recall where we were.
Amendments Nos. 35 and 36 are grouped.
The point made by Senator Higgins is valid, to be fair. There is an idea that whoever is to tender for public contracts must show compliance but such compliance should be demonstrated across a number of areas and not just this. It is something that could be put into regulations without it being mandated here. In public procurement rules there is a requirement to comply with all sorts of provisions now, including the general data protection regulation, for example. There must be evidence of compliance in that regard. I have complete sympathy with the aspiration and I am at one with it but I am not sure it is necessary in the Bill.
I apologise but I just needed to recall where we were in the discussion. On amendment No. 35, the Bill requires companies to make public their gender pay gap information and the regulations will set out clearly how this will be carried out. There are some policy questions to be settled on how this will operate in reality. Today I am not in a position to give a complete and conclusive explanation of how exactly the evidence of compliance will be established but that guidance will be provided in the context of the finalised regulations. I ask the Senator to indulge us in doing that.
The Senator is proposing in amendment No. 36 that compliance with this legislation would have implications for accessing public funds or public contracts. Such a proposal goes very significantly beyond the current provisions of this Bill and would have wider implications. If a company was to lose out on a contract, or something like that, through potential judicial reviews of measures taken under this Bill, it very significantly raises the stakes. It might be said, correctly so. Senator Seery Kearney made the point that adherence by a company bidding for public contracts is relevant to other legislation as well.
The proposed new EU directive on pay transparency makes some proposals in this regard. These are being given cross-governmental consideration at present regarding their broader implications. In a context where we want to move this legislation forward and get it up and running, this amendment, though absolutely worthy of consideration, has not been part of that wider conversation around what we are seeking to achieve. It is now part of the conversation about the EU directive. I suggest not addressing it within the context of this legislation.
I will briefly respond, particularly in respect of amendment No. 36. The issue is that much legislation has come through this House regarding financial supports for business and the business sector. It is reasonable we seek to ensure best practice from those who are receiving financial supports, loans and grants and who may, for example, be eligible for projects under the recovery and resilience fund and so forth. I note my amendment does not simply relate to public procurement but also to those many other forms of support and assistance and, indeed, straight financial transfer through grants or funds, the State makes available to a number of businesses.
On the public procurement question, the Minister's colleague, the Minister of State at the Department of Public Expenditure and Reform, Deputy Ossian Smyth, has, in fairness, so far supported my legislation in respect of quality in public procurement. At the moment, as our public procurement legislation stands, there has unfortunately been an extremely cautious approach on the exact question of whether we might be sued or if there might be a judicial review. This is the kind of thing that makes me nervous about the chilling effect, whereby there has been a reluctance to set quality criteria, or even set a fairly basic and certainly objective standard, which is whether there has been compliance. This is not about whether someone did wonderfully, or if the published results were fantastic in relation to section 20A, it is about whether the breakdown has in fact been published. The amendment is not prescriptive about how well someone did or did not do when the breakdown is published, it is simply about stating the standards are being complied with.
I appreciate engaging with the Minister but it might be useful to chat between Committee and Report Stages to the Minister of State, Deputy Smyth, and the Office of Government Procurement to confirm those issues can be captured. There may be measures around capturing them within procurement policy at the moment. I am concerned because, very often, it is down to lowest cost. Certain things can be put into quality criteria where they get a weighting while other issues may be put in as technical specifications. This might be something that will need to be put in as a specification. I am not sure if it can be dealt with under the quality criteria, only because, unfortunately, the majority of public contracts are still done on lowest cost only and not on the basis of quality.
I will withdraw the amendment. However, at this point I might indicate this may be an issue worth checking with the Minister's Government colleague who, in fairness, has engaged constructively with me on the issue of quality in public procurement. I reserve the right to bring the amendment back on Report Stage if we do not have a sense there is a mechanism for including these measures in the legislation or procurement process as stands.
I have listened many times to my colleague, Senator Higgins, speak about procurement and the need to have a more holistic approach to it. I suggest the Minister puts this into regulations as opposed to having it prescriptively included in the legislation. The overarching point about quality procurement, and it is something that needs to be voiced as often as possible, is that wanting the cheapest procurement option has often proved to be the wrong approach for many areas of society. There absolutely needs to be a much more holistic approach to procurement across the whole public sphere. It is a mammoth discussion for a different Minister. I would not like to see us divide on this particular issue on this important legislation because of the unified approach so far and the Government's willingness to engage. I urge the Minister to take up Senator Higgins's offer to engage between now and Report Stage.
I move amendment No. 36:
In page 8, after line 38, to insert the following:
“(11) The Minister may by regulation specify circumstances in which a company shall be required to provide evidence of compliance with section 20A, which may include:
(a) application for public grants, funds or loans, and
(b) submission of tender for public contracts.”.
I ask for an indication from the Minister on whether we can engage between now and Committee and Report Stages on this. In that context, I withdraw the amendment. The Minister indicated that he would engage while I was speaking, but he did not get a chance to come back.
I am happy to engage with the Senator.
Amendment No. 37 is in the names of Senators Warfield, Boylan, Ó Donnghaile and Gavan. Amendments Nos. 37 and 38 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 37:
In page 9, between lines 20 and 21, to insert the following:
“(4) 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.
(5) In making regulations under this section, where an employer fails to publish the required information on more than one occasion within a five year period, the Minister shall request that the company title be published by the Irish Human Rights and Equality Commission.”.
I second the amendment.
I thank Senator Higgins for seconding the amendment. As amendments Nos. 41 and 47 were ruled out of order, this will be my last contribution on Committee Stage. Amendment No. 37 is fair. We have already discussed non-compliance, consequences and whether names should be published by the Irish Human Rights and Equality Commission, which is fair. If there is a failure to publish the required information on more than one occasion in five years, then names should be published. It is not like a "first strike and you are out". I will welcome what the Minister has to say about this amendment, but it is fair.
My amendment No. 38 is grouped with this. I urge the Minister to consider engaging with this amendment on Report Stage. We have mentioned, and I welcome, the fact that he has increased the range of power from the Circuit Court to the High Court in respect of the Irish Human Rights and Equality Commission. However, while compliance and the consequence for non-compliance, which is the Irish Human Rights and Equality Commission going to the High Court to seek a compliance order, both come under section 20A, my concern is about what happens next.
The Minister mentioned contempt of court but the latter is not a tool designed in this sense. I do not know that having solely a contempt-of-court provision is the most appropriate next step if a company decides not to comply with a compliance order. What is the next level in terms of penalties? It might be very useful if, between now and Report Stage, the Minister was able to set out the flow of hypothetical cases and how they will move through this process or system. Whatever about the attachment of penalties - financial or otherwise - to situations of non-compliance with section 20A, even if we yield to the idea that the role of IHREC is sufficient at that stage, amendment No. 38 addresses the scenario whereby the commission has exercised its powers, taken a matter to the Circuit Court or the High Court and obtained a compliance order but a company still does not comply. At that point, it is important.
I recognise that amendment No. 27 only deals with the Circuit Court and not the High Court, which is a technical matter that could be addressed on Report Stage in Senator Warfield's amendment, a version of which I may reserve the right to bring myself. I have suggested financial penalties. A formal category A offence or class A fine may be a better mechanism rather than my suggestion of regulations with financial penalties. I am very open to rewording this. However, we should bear in mind that this is a situation where it has already gone through such reputational damages it may get by going through the Circuit Court or the High Court and the company has decided it does not care. This does not have the danger mentioned by the Minister whereby the company may just pay a fine and absorb the cost and not mind. This is a situation where the company has already had that other penalty of being brought through the courts and it would be useful for the company in addition to be required a fine at that point if it continues to fail to comply. I hope the Minister might consider this between now and Report Stage.
Amendment No. 39 is a Government amendment, which signals that this Bill will be going back to the Dáil in any event. There is no reason, therefore, not to include a sensible and useful provision that would allow for a penalty following failure to comply with a compliance order.
I have discussed on a number of occasions the changes we made to section 85C - accepted on Report Stage in the Dáil - which will enhance the enforcement powers of IHREC by providing it with the power to take an application to the Circuit Court or the High Court, where it has reasonable grounds for believing there has been a failure by a person to comply with the provisions of the Bill, to obtain an order requiring that person to comply. We believe that this is the stick the legislation provides in the context of ensuring compliance. In undertaking that role, IHREC will have regard to the size of the company involved and the number of infringements when determining the court in which to issue proceedings. It is given that discretion and there is no restriction in terms of size. In the case of a first breach, the commission has discretion to take an action. There is nothing stopping it doing so. When an employer does not comply with a court order, it may be held in contempt of court and in such circumstances, the court will have the power to issue a fine, which is a powerful tool. Defying an order of contempt made by a High Court judge is a significant act for any employer. My understanding of the offence of contempt is that it can only be expunged by compliance so there is a strong mechanism there in terms of seeking compliance by using this mechanism of an order from the court and any potential breach of that being an order of contempt, particularly the fact that we have ensured that this can be done through the High Court with all the linked negative publicity generated by a decision of a High Court judge compared with the negative publicity that might be generated by a decision of a Circuit Court judge.
The amended enforcement procedure provides for both IHREC and an employee to apply to the courts or the Workplace Relations Commission for an order compelling an employer to comply with its requirements and publish its gender pay gap information, which is significant. The information regarding non-compliance will be in the public domain and this is copper-fastened in light of the decisions we have taken in respect of the recent Supreme Court judgement about Workplace Relations Commission hearings being held in public. A significant stick is provided in this legislation in the context of ensuring compliance.
I recognise those points but I still believe that there is a need for a stronger provision because, unfortunately, compliance orders are not always complied with. This is a fact, so I am concerned in that regard. I recognise and welcome the provisions relating to the High Court and, in particular, those relating to the employee being able to initiate action. These are really strong measures. I will not press my amendment because I do not believe it is worded as strongly as the amendment in Senator Warfield's name, although the latter only references the Circuit Court. I will withdraw my amendment and reserve the right to reintroduce it on Report Stage.
Does Senator Warfield wish to press amendment No. 37?
I move amendment No. 38:
In page 9, between lines 20 and 21, to insert the following:
"(4) The Minister may set out in regulation such financial or other penalties as are deemed appropriate where a concerned person does not comply with a compliance order issued under section 85B within 12 months of the date of such a compliance order.".
I will withdraw my amendment and submit a new amendment on this issue on Report Stage.
This is a technical amendment, the purpose of which is to delete the term "section 85D" and replace it with "section 85C". With the deletion of the original section 85B, the sections have been renumbered. Members will note that section 4 incorrectly refers to section 85D, which no longer exists as a result of a Report Stage amendment in the Dáil.
I will make the very simple point. Given that this Bill will probably return very briefly to the Dáil simply to confirm the acceptance of this amendment, there is no reason, in terms of timeliness or whatever, not to consider including some short and, in particular, non-controversial amendments. I would even look to some of those relating to the use of the terms "may" and "shall" or dates. Between now and Report Stage, I urge the Minister to reflect on the fact that this Bill will go back to the Dáil anyway. Why not take on board points he has heard that he believes have merit? I do not believe they will be strongly opposed in the Dáil because I know there is generally very strong support for the Bill there, as there is in this House.
Senator Bacik previously indicated to the acting Clerk of the Seanad that I would move amendment No. 40 on her behalf.
Is the Senator moving amendment No. 40?
I move amendment No. 40:
In page 11, line 7, after "request." to insert "This subsection is without prejudice to the entitlement of the Commission to exercise its powers under this section in any such case of its own motion.".
This amendment makes it clear that such other powers to act in respect of this section do not impinge on the entitlement of IHREC to exercise its powers or move any case on its own motion.
The Minister spoke about seeking to strengthen the powers of the Irish Human Rights and Equality Commission and the Workplace Relations Commission in terms of their engagement and intersection with this Bill. Senator Bacik seeks to ensure that the powers they are given here do not in any way impinge on such other actions they might take.
I will not press the amendment in the absence of Senator Bacik but I did not want to raise it on her behalf. She plans to return to this matter on Report Stage and address it further. I would appreciate any comments from the Minister in respect of amendment No. 40.
I confirm to Senators that the new subsection (5) to be inserted into section 32 of the Irish Human Rights and Equality Commission Act 2014 is without prejudice to the entitlement of our right to exercise its powers under section 32 in any such case of its own motion. I submit that the amendment is not necessary but I am happy to put the confirmation on the record.
I thank the Minister and his confirmation will be welcomed by Senator Bacik. I will withdraw the amendment but wish to advise that it may be reintroduced on Report Stage.
Amendment No. 41 is in the names of Senators Warfield, Boylan, Ó Donnghaile and Gavan. The amendment is deemed out of order as it constitutes a potential charge on the Revenue.
Amendments Nos. 42 to 45, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 42:
In page 11, line 9, after “review” to insert “to be published”.
My amendments relate to a review. This is a simple matter but basically I want to ensure that the review will be published. The review clause currently simply says, "The Minister shall cause a review of the functioning of the amendments made", but it does not commit to the publication of the review or the laying of the review before the Oireachtas to be debated by a relevant committee. It is always good to set things out in legislation bearing in mind that the Minister, which in this case is the Minister present, who may initiate legislation may not be the Minister at the point of review. Under my amendment No. 43, the present Minister would probably be the Minister that conducts the review as it seeks to substitute the "4th anniversary" with the "3rd anniversary". In that regard, it is always better to have the nature of the review, the fact that the review would be published, and the plans for engagement in respect of the review and so forth set out in the legislation in order to give clarity to anybody who may inherit this brief.
In my amendment No. 43, I suggest inserting the words "3rd anniversary". That is also consequential on my previous amendments that sought the stipulation of a first and second anniversary rather than a third anniversary to allow for the full scope of the programme. I understand that the four years is to allow for the full range of the Bill but I believe that the full scope of the Bill should be applied within three years and that that is very reasonable. Again, in that consequence, we should be able to have this apply to all companies of over 50 employees within three years and be able to report on same.
My last concern is that we need subsequent reviews. Again, this is one review. If this is going to be long-term legislation then we may need to look to its operation periodically in the time period ahead. Please note that the legislation, as it stands, only allows for one review.
Amendment No. 45 slightly differs in its intent and, in fact, refers to a report. Again, there may be another mechanism whereby a report can be provided. It is important that we do not just take a snapshot of pay equality across Ireland, and within companies, but look to what we do with the information. It is not simply a matter of the reputation of an individual company or how that is perceived by potential employees or consumers. Those are all important factors but there is a really important piece that comes to that same question which I mentioned earlier. It is the identification of patterns.
My amendment No. 45 states, "The Minister shall, within three years", which mirrors my previous amendments because I believe that the Act should be fully operational within three years, "lay a report before both Houses of the Oireachtas outlining a sectoral analysis with respect to the information published under section 2 and further recommendations based upon such analysis in terms of reducing the gender pay gap". That is because of what we have seen in different sectors. The Athena SWAN, the scientific women's academic network, programme has been mentioned but many other sectors have had different issues. For example, if we see a certain pattern among the categories in section 20A, if we see that there is a huge gender pay gap among part-time employees across a sector or if we note that the highest percentile is particularly divided within another sector, then as that information is complied, within each company, it must be placed alongside each other and analysed with that sectoral lens so that we can identify any issues.
Like many others, I greatly regret the reduced use of joint labour committees as they were so crucial. Senator Bacik talked about the role played by unions in collective bargaining but JLCs were an incredibly good tool. It is disappointing that we use them less, and we have not been able to use them in the way that we had previously to really identify what is good and bad practice within a sector. I mean identifying the patterns, dangers, challenges and cultural imbedded prejudices and inequities that operate within a sector.
My amendments ask what the Minister will do with the information, not just what is done by companies, consumers and employees. My amendments ask what the Minister, as a Minister making policy, does with the information that emerges from this. Perhaps he will address my points or indicate whether a report is planned or envisaged.
I wish to refer to the very fact that access to the likes of the Workplace Relations Commission and the Labour Court can be had, and there is no threshold of payment or threats of fees or costs afterwards in the event of an unsuccessful claim to the WRC. The very fact that we have that avenue of redress and an ability to lodge a complaint will have the effect of throwing up where we have repeat offenders and sectors. There are sectors of society and companies that could install bunkbeds in the WRC building because they are there that often. Redress plus access to the Circuit Court and High Court will have the effect sought by Senator Higgins as well as what is already available. The fact is that the information is being sought to be published by the employer.
Today, the Minister of State at the Department of Enterprise, Trade and Employment, Deputy English, announced the establishment of a joint labour committee so Senator Higgins should not give up on JLCs.
I am not giving up on them.
The announcement is great because for years I advocated for a joint labour committee for childcare. Well done on all of that all around and hearts up.
Senator Seery Kearney has stolen my powerful wrap-up lines-----
The Minister stole mine last week.
-----in terms of the publication by the Minister of State, Deputy English, of a JLC process for the childcare sector. The process was initiated by me and my Department a number of months ago. The JLC recognises a sector and the childcare professionals who have worked so hard during Covid. It is a sector where we know pay is low and employees are predominantly, and to the vast preponderance, female. This process recognises a combination of the fact that the Government has prioritised this and my Department has prioritised the need to address this matter. I thank the Minister of State for working so quickly to address this matter.
As regards amendment No. 42, I assure the Senator and the House that the findings of the review, when undertaken, will be published. It can only be beneficial if the report is published because it will inform subsequent amendment to and development of the relevant legislation.
Senator Higgins envisaged that her proposed changes would mirror some of the wider changes. I have shortened the timeframe for having the review from after five years to after four years. That is appropriate. We have to strike a balance between allowing the process to operate to get a full sense of it and not putting it on the long finger. In light of the other timelines in the Bill, four years is the correct timeframe.
On amendment No. 44, if the review after four years envisages legislative changes and we still have in place the mechanism set out in this Bill, there is a mechanism for bringing in another review proposal. That is the best way to go.
On the idea of a report, the review we are initiating will address much of that. In looking at the legislation, the review will also look at the bigger questions and the ongoing appropriateness of this legislation in the context of what it has achieved and what it seeks to achieve. To provide for a report within three years when the initial review will take place within four years would be to take a disjointed approach to gaining a full understanding of how this legislation works, having allowed one full cycle when we it will apply to employers with 50 employees.
I move amendment No. 43:
In page 11, line 10, to delete "4th anniversary" and substitute "3rd anniversary".
For reasons of consistency, I will press the amendment.
I move amendment No. 44:
In page 11, line 11, after "section" to insert "and shall review the same not less than every three years subsequently".
I move amendment No. 45:
In page 11, between lines 11 and 12, to insert the following:
7. The Minister shall, within three years of the passing of this Act, lay a report before both Houses of the Oireachtas outlining a sectoral analysis with respect to the information published under section 2 and further recommendations based upon such analysis in terms of reducing the gender pay gap.".
I move amendment No. 46:
In page 11, to delete lines 19 to 22 and substitute the following:
"(1) This Act shall come into operation three months after it has been passed by both Houses of the Oireachtas or a prior date which the Minister may appoint by order.".
Does Senator Higgins wish to speak to the amendment?
The Minister indicated his wish for speedy passage and implementation of the Bill. In that context, I am happy to withdraw the amendment.
Amendment No. 47 in the names of Senators Warfield, Boylan, Ó Donnghaile and Gavan is out of order as it is consequential on amendment No. 41.
When is it proposed to take Report Stage?
On Friday, 25 June 2021.
Is that agreed? Agreed.
When is it proposed to sit again?
Tomorrow morning at 9 a.m. in the convention centre.