Minister for Justice and Equality, Charlie Flanagan TD, and Minister of State for Equality, Immigration and Integration, David Stanton TD, publish the General Scheme of the Gender Pay Gap Information Bill
26 June 2018
The Minister for Justice and Equality, Mr Charlie Flanagan TD, and the Minister of State for Equality, Immigration and Integration, Mr David Stanton TD, today (Tuesday) announced the publication of the General Scheme of the Gender Pay Gap Information Bill which was approved by the Cabinet today.
This significant Bill will provide that employers with a certain number of employees (which will be set at 50 or more after an initial period of operation for bigger firms) must publish information on the gender pay gap in their firm.
Minister Flanagan said:
“This Government is committed to gender equality. Both the Programme for Government and our Second National Strategy for Women and Girls commits to wage transparency measures to tackle the gender pay gap. In this significant year, the centenary of women’s voting rights, I am pleased, along with Minister Stanton, to bring forward these legislative proposals.
“The gender pay gap has rightly attracted increased attention in recent times both in Ireland and internationally. While Ireland compares relatively well with the rest of the EU as regards the size of the gender pay gap – 13.9% compared with an EU 28 figure of 16.7% in 2014 – put simply, we want gender equality in Ireland and we are committed to tackling the gender pay gap. These pay transparency measures are part of a wider package of measures to promote gender equality.”
Minister Flanagan added:
“In formulating these proposals, we have consulted widely and taken on board much that emerged from the public consultation that Minister Humphreys, Minister Stanton and I hosted last year. I look forward to further consultations and a good debate in the Houses of the Oireachtas. I want to acknowledge the support of the Opposition for wage transparency measures and the work of Senator Ivana Bacik in particular.”
Notable elements of the General Scheme of the Bill are:
· the Minister shall make regulations requiring publication of information on the gender pay gap in firms;
· the regulations will apply to employers with 250+ employees initially, then to those with 150+ and finally those with 50+;
· the regulations will apply to the public as well as the private sector subject to the employment thresholds;
· in addition to differences in hourly pay, information on differences in bonus pay, part-time pay and pay of men and women on temporary contracts will be among the data which must be published;
· the regulations may also require publication of differences in pay by reference to job classifications;
· the enforcement mechanisms include a power for the Irish Human Rights and Equality Commission to apply to the Circuit Court for an order requiring an employer to comply with the legislation. Also, an employee of the employer concerned may apply to the Workplace Relations Commission for an order requiring compliance. There is a provision too for designated officers who would investigate a sample of employers to ensure that the information published is accurate.
Minister Stanton continued:
“This is an important measure to help reduce the gender pay gap by publishing information about it at the firm level, thus furnishing a deeper insight into the causes of the gap and facilitating employers in addressing it.
“It is not by itself a sufficient response to the problem of the gender pay gap and needs to be supplemented by measures in increase the number of women in better-paid roles and occupations, improved childcare provision, dealing with gender stereotypes, more women in decision making etc. Actions in these areas are being pursued in the framework of the National Strategy for Women and Girls 2017-2020.”
The General Scheme will now be published and submitted to the Joint Oireachtas Committee on Justice and Equality for pre-legislative scrutiny.
Notes for editors
The Programme for a Partnership Government includes a commitment to contribute to addressing the gender pay gap and to promoting wage transparency by requiring companies of 50 and more employees to complete a wage survey. This is reflected in Action 1.23 of the National Strategy for Women and Girls which is to “Promote wage transparency by requiring companies of 50 or more employees to complete a wage survey periodically and report the results.”
A public consultation was launched in August last by Minister Flanagan and Minister Stanton on measures to address the gender pay gap. It resulted in 38 written submissions. A summary of the submissions has been published on www.genderequality.ie which also contains a compilation of all submissions.
A successful symposium was hosted on 10 January by Ministers Flanagan, Stanton and Humphreys and attended by well over 100 people. The symposium was addressed by both Ministers, Minister Stanton, an official of the European Commission, academics and other experts, and representatives of the social partners, civil society, and professional bodies.
There have been further, more recent, meetings with Ibec and ICTU and the National Women’s Council to discuss this measure.
Pay transparency legislation has been adopted in a number of countries with a view to combating the gender pay gap. Examples are Britain, France, Sweden, Germany, Denmark, Austria, Iceland and Australia.
GENERAL SCHEME OF GENDER PAY GAP INFORMATION BILL
Head 1 Short title, collective citation and commencement
Head 2 Gender pay gap information
Head 3 Enforcement powers through designated officers
Head 4 Enforcement power through court orders for failure to comply
Head 5 Equality reviews and action plans
Head 6 Redress through the Workplace Relations Commission
Head 7 Review of Act
Head 1 Short title, collective citation and commencement
(1) This Act may be cited as the Gender Pay Gap Information Act 2018.
(2) The Employment Equality Acts 1998 to 2015, and Heads 2 to 4 and 6 of this Act may be cited together as the Employment Equality Acts 1998 to 2018.
(3) The Irish Human Rights and Equality Commission Act 2014 and Head 5 of this Act may be cited together as the Irish Human Rights and Equality Commission Acts 2014 and 2018.
(4) This Act shall come into operation on such day or days as the Minister for Justice and Equality may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions
Head 2. Gender pay gap information
The Employment Equality Act 1998 is amended by inserting the following after section 20:
“20A Gender pay gap information
(1) The Minister shall make regulations requiring employers to publish information relating to the pay of their employees for the purpose of showing whether there are differences in the pay of male and female employees and, if so, the scale of such differences.
(2) In making regulations under subsection (1), the Minister shall have regard to the cost of complying with such regulations.
(3) (a) Regulations made under this section shall not apply to employers having fewer than 50 employees.
(b) The requirement to publish information under such regulations shall not apply to employers having fewer than
(i) 250 employees earlier than two years, or
(ii) 150 employees earlier than three years,
after commencement of this section.
(4) Regulations made under this section may prescribe –
(a) classes of employer to which the regulations relate, including by reference to the number of employees the employer has,
(b) classes of employee to which the regulations relate,
(c) how to calculate the number of employees that an employer has,
(d) how to calculate, for ease of comparison, the pay of employees,
(e) the form and manner in which, and the frequency with which (which shall not be more frequent than once in each year), information is to be published under the regulations.
(5) Regulations made under this section may require the employer to publish information in respect of
(a) each Department of State,
(b) each Scheduled Office within the meaning of the Public Service Management Act 1997,
(c) the Garda Síochána, and
(d) the Defence Forces.
(6) The information published by employers in accordance with regulations made under this section shall include the–
(i) difference between the mean hourly pay of male employees and that of female employees,
(ii) difference between the median hourly pay of male employees and that of female employees,
(iii) difference between the mean bonus pay of male employees and that of female employees,
(iv) difference between the median bonus pay of male employees and that of female employees,
(v) difference between the mean pay of part-time male employees and that of part-time female employees,
(vi) difference between the median pay of part-time male employees and that of part-time female employees,
(vii) difference between the mean pay of male employees on temporary contracts and that of female employees on such contracts,
(viii) difference between the median pay of male employees on temporary contracts and that of female employees on such contracts,
(ix) proportions of male and female employees who were paid bonus pay,
(x) proportions of male and female employees who received benefits in kind, and
(xi) proportions of male and female employees in the lower, lower middle, upper middle and upper quartile pay bands.
(7) Regulations made under this section may require the publication of information by reference to job classifications.
(8) Regulations made under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.
(9) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”
Head 3. Enforcement powers through designated officers
The Employment Equality Act 1998 is amended by inserting the following after section 85A (inserted by the Equality Act 2004):
“85B Enforcement powers in respect of gender pay gap information
(1) For the purpose of ensuring that information published by an employer under regulations made under section 20A is accurate, the Minister may appoint persons to be designated officers.
(2) For the purpose referred to in subsection (1) and at the request of the Minister, a designated officer shall investigate and prepare a report on a question specified by the Minister.
(3) For the purpose of such an investigation, sections 94 and 96 shall apply subject to
(a) the references in section 96 to Director General of the Workplace Relations Commission, the Chairman of the Labour Court and an adjudication officer being taken as references to the Minister and a designated officer, and
(b) any other necessary modifications. ”
Head 4. Enforcement power through court orders for failure to comply
The Employment Equality Act 1998 is amended by inserting the following after section 85B (inserted by Head 3):
“85C Orders for failure to comply with regulations under section 20A
(1) Subject to subsection (2), the Circuit Court may, on the application of the Irish Human Rights and Equality Commission, where the Commission has reasonable grounds for believing that there has been a failure by an employer to comply with regulations made under section 20A, grant an order requiring an employer to comply.
(2) The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge for the time being assigned to the circuit where the employer concerned ordinarily resides or carries on any profession, business or occupation.”
Head 5. Equality reviews and action plans
The Irish Human Rights and Equality Commission Act 2014 is amended by inserting the following after section 32 (4):
“(5) Arising out of the operation of of Section 20A of the Employment Equality Act 1998 or regulations made thereunder, the Minister may request the Commission to consider exercising its powers under this section in relation to a particular undertaking or group of undertakings and the Commission shall comply with this request.”
Head 6. Redress through the Workplace Relations Commission
The Employment Equality Act 1998 is amended by the insertion of the following after section 85C (inserted by Head 4):
“85D (1) An employee (the ‘complainant’) who claims that his or her employer (the ‘respondent’) has failed to comply with regulations made under section 20A may refer the complaint to the Director General of the Workplace Relations Commission.
(2) The Director General shall investigate the complaint and, for that purpose, shall hear all persons appearing to the Director General to be interested and desiring to be heard, and shall issue a decision.
(3) Subsections (3A) and (4) of section 79 shall apply in relation to an investigation by the Director General under subsection (2) as they apply in relation to an investigation by the Director General under that section.
(4) An investigation under subsection (2) shall be conducted in private.
(5) At the conclusion of an investigation under subsection (2) (including an investigation of a preliminary issue under subsection (3A) of section 79), the Director General shall make and issue a decision and, if the decision is in favour of the complainant—
(a) it may provide for an order that the respondent take a specified course of action in order to comply with the regulations, or
(b) in the case of a decision on a preliminary issue under subsection (3A) of section 79, it shall be followed by an investigation of the substantive issue.
(6) Not later than 42 days from the date of such a decision, the complainant or the respondent may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.
(7) The Labour Court shall hear an appeal under subsection (6) in private unless, at the request of the complainant or respondent, it determines to hold the appeal, or so much of it as it does not consider should be treated as confidential, in public.
(8) The Labour Court shall issue a determination on the appeal and the Court shall have power to grant such redress as the Director General has under subsection 5(a).
(9) Sections 88(3) is amended by the addition of the following paragraph:
‘(e) in the case of a decision or determination under section 85D, the complainant and the respondents, within the meaning of that section.’
(10) Notwithstanding anything in section 89, the publication of decisions and determinations shall include the names of the complainant and respondent.”
Head 7. Review of Act
The Minister shall cause a review of the functioning of this Act to be carried out before the 5th anniversary of the date of enactment of this Act.