Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I move amendment No. 13:

In page 7, to delete lines 29 to 37, to delete page 8, and, in page 9, to delete lines 1 to 35 and substitute the following: “ “Application to Circuit Court or High Court in case of failure to comply with regulations made under section 20A

85B. (1) Subject to subsection (3), where the Irish Human Rights and Equality Commission is satisfied that it has reasonable grounds for believing that there has been a failure by a person (in this section referred to as the ‘person concerned’) to comply with regulations made under section 20A, it may make an application to the Circuit Court or the High Court for the grant of an order requiring the person concerned to comply with those regulations.

(2) The Circuit Court or the High Court may grant the order sought by an application under subsection (1) if the Court is satisfied that the person concerned has failed to comply with regulations made under section 20A.

(3) The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge for the time being assigned to the circuit where the person concerned ordinarily resides or carries on any profession, business or occupation.

Redress through Workplace Relations Commission

85C.(1) An employee (in this section referred to as the ‘complainant’) who claims that his or her current employer (in this section referred to as the ‘respondent’) has failed to comply with regulations made under section 20A (such claim in this section being referred to as the ‘complaint’) may refer the complaint to the Director General of the Workplace Relations Commission.

(2) (a) Subject to paragraphs (b) and (d), the Director General shall investigate the complaint if he or she is satisfied that there is a prima facie case to warrant the investigation.

(b) (i) The Director General may, by notice in writing given to the complainant or respondent, or both, require the complainant or respondent, or both, to give to the Director General, within the period specified in the notice (being a period reasonable in the circumstances), such further information that the Director General may reasonably require in order to assist the Director General to decide whether or not there is a prima faciecase referred to in paragraph (a)

(ii) The complainant or respondent given a notice under subparagraph (i) shall comply with the notice.

(c) The Director General may, as part of an investigation (if any) of the complaint and if he or she considers it appropriate to do so, hear persons appearing to the Director General to be interested and desiring to be so heard.

(d) Section 77A shall, with all necessary modifications, apply to a complaint as that section applies to a claim.

(3) Subsections (3A) and (4) of section 79 shall, with all necessary modifications, apply in relation to an investigation by the Director General under subsection (2) as they apply in relation to an investigation by the Director General under that section.

(4) At the conclusion of an investigation under subsection (2) (including an investigation of a preliminary issue under subsection (3A) of section 79), the Director General shall make and issue a decision and, if the decision is in favour of the complainant—

(a) the Director General may provide for an order that the respondent take a specified course of action in order to comply with regulations made under section 20A, or

(b) in the case of a decision on a preliminary issue under subsection (3A) of section 79, it shall be followed by an investigation of the complaint.

(5) Not later than 42 days from the date of such a decision, the complainant, on notice to the respondent, or the respondent, on notice to the complainant, may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.

(6) Proceedings under subsection (5) shall be conducted in public unless the Labour Court, upon the application of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

(7) The Labour Court shall issue a determination on the appeal under subsection (5) and the Court shall have power to grant such redress as the Director General has under subsection (4)(a).

(8) Notwithstanding anything in section 89, the publication of decisions and determinations shall include the names of the complainant and respondent.”.”.

This amendment to section 3 of the Gender Pay Gap Information Bill provides, first, for the deletion of section 85B, second, for the amendment and renumbering of section 85C, and third, for the amendment and renumbering of 85D as drafted and the insertion of amended sections 85B and 85C into the principal Act. The original purpose of section 85B in the Bill was to provide for certain enforcement powers in respect of gender pay gap information through the appointment of designated enforcement officers. A policy decision has been taken not to proceed with the appointment of designated enforcement officer provisions due to the concerns about how this system would operate practically and indeed about whether having such a role is indeed necessary. The proposed amendment would first of all delete section 85B. The current section 85C provides for a power of the Irish Human Rights and Equality Commission, IHREC, to apply to the Circuit Court for an order requiring a person to comply with the regulations. A person who fails to comply with a Circuit Court order is in contempt of that court.

The proposed amendments to section 3 to insert a new section 85B into the principal Act will enhance the enforcement powers of the Irish Human Rights and Equality Commission by providing a power to take an application to the Circuit Court or to the High Court. That is the additionality that is being added here where IHREC is being given the choice of proceeding either as it was with the Circuit Court or, indeed, now of making an application to the High Court. Again, these applications can be made where it has reasonable grounds for believing there has been a failure by a person to comply with the provisions of the Bill and to obtain an order requiring the person concerned to comply. In deciding whether it should go the route of the Circuit Court or the High Court, IHREC will have regard to the size of the company, the number of infringements etc., and these will be the criteria it will use to determine which court it should take the proceedings in. By inserting the capacity to take these cases to the High Court, it elevates the seriousness of the legal case. The company in question, if the court makes an order, will now be held in contempt of the High Court as opposed to being held in contempt of the Circuit Court.

The purpose of the current section 85D is to provide for an employee to make a complaint to the Workplace Relations Commission of non-compliance with reporting regulations by his or her employer. The proposed amendment changes the section number from 85D to 85C. In addition, subsection (4) of what was section 85D previously provided for an investigation to be carried out in private by the director general of Workplace Relations Commission. The use of the text "in private" is at odds with the finding of the Supreme Court in the recent Zalewski judgement, which has implications for the procedures of the Workplace Relations Commission as to proceedings held in private. The new section 85C removes the subsection requiring an investigation to be held in private.

In addition, subsection (7) provided for an appeal in the Labour Court to be heard in private unless, at the request of the complainant or respondent, the court determined to hold the appeal in public in full or so much of it as it did not consider to be treated as confidential. This again in the amendment I am bringing forward here has been amended at subsection (6) to allow for an appeal to be held in public unless at the request of either party the court determines there are special circumstances to hold the appeal or part thereof otherwise than in public.

The proposed amendment on the whole will strengthen the enforcement procedures for the gender pay gap reporting and ensure they are practical, effective and meet with the new interpretations following on from a recent Supreme Court decision. I commend the amendment to the House.

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