In terms of section 3, section 85C enables the Irish Human Rights and Equality Commission to apply to the Circuit Court for an order requiring a person to comply with the regulations. A person who fails to comply with a Circuit Court order is in contempt of that court. This represents enforcement by civil means rather than by the creation of an offence. For example, if we were to create a summary offence with a maximum fine of €5,000 is there a danger that some employer would be happy to ignore the regulation and accept the fine? With some large companies this would be a small issue. To prevent this from happening the Bill provides that a court order can be sought requiring the person to comply. If he or she fails to comply then he or she is in contempt of court. I wish to consider further whether this mechanism can be improved.
A key issue would be what power a court would have to deal with a person who persists in his or her contempt. In the light of further consideration on this point, I may bring forward a Report Stage amendment.
Section 85D allows for an employee to make a complaint to the Workplace Relations Commission of non-compliance with reporting regulations by his or her employer. The director general of the Workplace Relations Commission will investigate the complaint if satisfied that there is a prima facie case or if, on investigation, the director general or an adjudication officer finds in favour of the complainant he or she may make an order requiring the employer to take a specified course of action in order to comply. This is the only remedy that may be ordered, for example compensation may not be awarded as it is not an appropriate remedy in this situation. Enforcement of WRC orders is through the District Court. The idea is that if an employer is in breach of the regulations, for example the employer has not published the gender pay gap information, apart from proceedings by the Irish Human Rights and Equality Commission, IHREC under section 85C, an employee of the employer concerned can take proceedings in the Workplace Relations Commission, WRC. Since the Workplace Relations Commission is a rightly very accessible and low cost way to take a complaint this has to be a protection for the employer and for this reason the director general or an adjudication officer will only investigate a complaint if he or she is satisfied that there is a prima facie case. As I have stated, enforcement orders under the section will be through the District Court and the same issue arises at section 85C. For this reason I may return to this on Report Stage along with section 85C and I will table an amendment if necessary.