Seanad Éireann debate -
Tuesday, 28 Feb 2023

I welcome the Minister. On behalf of Sinn Féin I want to say that in the round we welcome this Bill. The process of applying for jobs can be a gruelling and protracted one. At the very least, those setting out on this journey deserve to be able to see in advance what pay is being offered. Equally, existing workers deserve to see the pay being offered to new recruits within the sector. This Bill achieves both of these aims while also levelling the playing field for companies that already provide this level of transparency on pay. The Bill is therefore a very practical and welcome step towards transparency.

However, it is also a vital tool in addressing the wide range of pay gaps that can exist. While companies are currently required to report any gender pay gaps that might exist within their organisation, this is only one part of the picture and many other pay gaps can, and do, exist. An ESRI report in January of this year showed that workers from eastern Europe are paid as much as 40% less than their Irish counterparts. To put it another way, for every euro an Irish worker makes, their migrant colleague undertaking the exact same work earns 78 cent. This pay discrepancy is particularly prevalent in lower paid and manual professions. Bills such as this are an effective step in ensuring far more transparency and effective enforcement of equal pay for all.

However, I have concerns with regard to the limited scope of the Bill. My concern specifically relates to the fact that these provisions will, somewhat arbitrarily it seems, only apply to organisations of 50 or more employees. This is despite the fact that compliance places no additional reporting or administrative burden on employers. We cannot create a situation where a person's ability to ensure freedom from pay discrimination is dependent upon the size of their employer's business. We are a country of small and micro businesses. In 2016 micro enterprises accounted for 92% of all enterprises. To be truly effective and not mere lip service, this Bill should apply to all businesses. However, our duty to employees does not end when they sign their contract of employment. It is vital we ensure there is considered and effective legislation in place to protect them throughout their employment also.

In that regard, I would like to take a moment to discuss developments in the Work Life Balance and Miscellaneous Provisions Bill 2022 reported in the media this weekend. It is vital to address the shocking flaw in this Bill which would allow victims hoping to take much-needed leave face pay cuts. Women's Aid, the National Women's Council of Ireland, Men's Aid and trade unions have all been clear in their opposition to this proposal. It not only flies in the face of international best practice but has the potential to put victims at increased risk by alerting their abuser to their leave. Therefore, I would like to welcome reports in the media this weekend that the Government will now table amendments to the Bill. I, along with my colleagues in Sinn Féin, will carefully study the Government amendments to ensure that they address these flaws. This leave could make a massive difference to victims as they seek help and it is vital that we get this right.

Bills such as this one are an important milestone in implementing a fairer system for all. However, I again stress that it is important we also ensure that we have effective legislation in place to protect employees once they are in the workplace. Domestic violence leave is a vital part of this protection and it is crucial that we get this right tomorrow.

I commend my colleagues, Senators Ardagh and Crowe, on bringing forward this legislation. It is valuable and important that we move to a place of absolute transparency. There is no excuse now for it not being so. There is discrimination and there are clear disparities in rates of pay, depending on where one is from, and on one's ability to negotiate in a new workplace. Unfortunately, in many instances we see that people from eastern Europe, in particular, are exploited. Over the years I have been involved in cases defending employees in such instances. It is really quite shameful how some employers think it is all right to treat employees in this way. Consequently, we need as much as possible on a statutory and mandatory footing.

I would question a couple of things in the Bill. It should apply to any role. Lower paid roles generally have a rate per hour. Many companies with fewer than 50 employees will give those rates per hour. It tends to be the case that for more highly remunerated positions that the rate of pay is never disclosed. While I understand that having a threshold of 50 workers is consistent with other legislation, and I can see where the genesis of this came from, I am not sure it is necessary. I would ask the Senators to think about that.

We could go further here. For example, we could ensure employers have an obligation to show complete transparency in how they arrive at a rate of pay. There should be such a process within all workplaces. Any companies that I have worked with over the years set out a matrix of how they arrive at an annual salary and the steps regarding qualifications, etc., that bring them to that figure. When one is interviewing for a position, one has to have a matrix of competencies and decision-making set out, so it can be clearly demonstrated in the event of a claim under the Employment Equality Act 1998. When we have benchmarking and when industry norms are published, certainly within the recruitment industry on a regular basis, there is no reason we should not also have an obligation, perhaps in the WRC aspect of this, that a company has to produce a matrix of how it arrived at that particular figure and what is included. It may well be that if it advertises a range and if one has a higher level of competency and experience, that will give an increment of X and Y. In this way, we have a scope within the rates that are advertised and we also have a rationale that is predetermined before an individual is engaged with. That would also lend itself to good transparency and would be useful.

I agree with not asking about the expected rate of pay. I am a little bit nervous about it with regard to how I know recruitment agencies operate. If somebody has a particular salary expectation, they are going to need to be asked about it. Presumably, there will be a part of their engagement with the employment agency when the soliciting of salary expectations the person has is permissible in a particular category. There is no point in a person going to an employment agency and having an expectation of what they want and making sure that-----

I thank Senator Ardagh for answering the question. It does not go that far. When reading it on Sunday, I was a little bit worried about the engagement with agencies. Perhaps there is an explanatory note somewhere stating that nothing should preclude a person from voluntarily giving the information. We need to be careful on the operation of it, so that employment agencies can function. I have worked with the recruitment industry, so I can see things like that being involved in it.

Anything that brings us closer to transparency is to be applauded and completely supported. Could we go further? Yes, I think we could. Perhaps we will win this war in small steps, one battle at a time, and this is one battle that I am very happy to support.

I thank Senators Ardagh and Crowe and the Fianna Fáil group for bringing forward this Bill. It is very timely as we have International Women's Day next week and also because the EU pay transparency directive was agreed by the European Council on 20 December this year. I welcome the Bill and, as Senator Ardagh said, it follows in line with some of the provisions contained within the directive.

The Bill before us seeks to amend the Gender Pay Gap Information Act 2021, which is groundbreaking legislation. My colleague, former Senator and now Deputy Bacik, initially spearheaded the push for introduction of that legislation. It is important that we see the Act as a starting point in trying to close the gender pay gap as opposed to being the conclusion to the process. The Bill before the House is an attempt to supplement the Act with all the other things that need to be done in order to close the gender pay gap.

When we look at the gender pay gap - and various figures are bandied about in this regard - the weekly wage gap is what is important. From looking at the most recently available CSO administrative data on earnings, we know that the weekly wage gap between men and women is 22.2%. If I was to ask anyone here what their hourly rate of pay is, they would not be able to tell me. However, they would be able to say what their monthly or weekly rate of pay is. That is what is really important in tackling this matter. We have to look at the structural issues with regard to the lack of hours or forced part-time employment, along with all the other matters, including starting pay, pay progression upon promotion and the lack of collective bargaining to allow workers to come together within a company in order to set wage rates with their employers. The issue of the lack of affordable childcare, particularly the lack of supply, is driving one of the many structural factors behind the gender pay gap in this country. When we put that in context, we know there are several actions that need to be taken. Starting pay is an important aspect of a large number of measures that need to be introduced.

The Bill is very welcome. I was particularly taken by what Senator Crowe said about people coming back into the labour force after a period. For women coming back after a period away, it is vital that we have pay transparency. I urge Fianna Fáil Senators to look at some sections of the Bill and reconsider the opt-out clause for employers. Under section 4, employers do not have to publish the expected remuneration and they can publish the reasons why such information was not included in the advertisement. That is effectively a watering down of Article 5 of the EU directive. I appeal to the Minister that there would be no watering down of the EU directive over the next two years. We have two years from December 2022 to enact the directive. It is excellent that we are having this discussion now as opposed to in December 2024. None of us knows if we will be here at that time. It is great that we are having the discussion about implementing parts of the directive now, but let us not water it down. I do not want to nit-pick, but these are really important issues.

The second concern I have is with the penalty for non-compliance and the burden of proof in raising a complaint. Section 5 provides for a person or perspective employee making a complaint to the Workplace Relations Commission. However, Article 15 of the directive makes it clear that when an employer does not fulfil its transparency obligation, it will be up to the employer, not the worker, to prove that there was no discrimination in regard to pay. There are issues with the non-compliance and the discrimination aspects. I would like to see the Bill strengthened in that regard in order that it is more closely aligned with the EU directive.

We are having this conversation only a few months after the directive was passed by the Council. It is important that we try to progress this legislation and get it right. In advance of International Women's Day next week, when there will be a lot of talk about the gender pay gap, I appeal to the Minister to ensure that we get it right in the context of changing elements of the existing Act right. There are a number of serious shortcomings with the Act that we have discussed on previous occasions. The first of these is the lack of comparison between full-time and part-time workers. Ultimately, some workers are forced into part-time employment, and there is a part-time wage trap that is well-documented in the economic literature. We must get it right in terms of those comparisons. The second shortcoming is the lack of a register. At present, the information effectively goes into a black hole. Matters are only highlighted when various elements of the media look at what companies have reported and track that information down. There is no centralised register or series of data to help us to understand what certain companies are doing relative to others. We need that information if we are to establish peer pressure, which is effectively what this is about. Peer pressure will ensure that companies step up to the plate and reduce and ultimately eliminate the gender pay gap within their organisations.

I very much welcome the Bill, although there are a number of things we need to get right. I want to see it move to Committee Stage as soon as possible. Importantly, we would like to see the inclusion of many other elements of the EU pay transparency directive in the Bill. An issue we raised during the debate on the Pay Transparency Act is our belief that the threshold of 50 employees is too high. The vast majority of employees in this country, more than 90%, are in workplaces with ten employees or fewer. We need to ensure that we cover the vast majority of workplaces.

I welcome the Minister. I am glad to be here to express my support for this important and timely legislation. I congratulate Senators Ardagh and Crowe on their hard work in respect of it. Deputy Conway-Walsh and others have tabled similar Bills in the Dáil. I hope this can be an area where a good idea is rewarded with cross-party support and swift passage through these Houses.

Legislation like this is long overdue in the age of online job hunting. Finding employment online has its benefits. People can access a much wider range of opportunities and go about their search in a more organised and systematic way. It also means that employers get a wider array of candidates to choose from. As anyone who has sought employment recently knows, however, the digitisation of job applications can also be burdensome. Job applications are becoming increasingly time-consuming. People are often made to enter information, which is readily available via their CVs, into portals designed by the employer. This results in much wasted time and duplicated effort. Multi-round interviews that require personality testing and work trials are also becoming more common. The ease of applying for jobs means that employers have to contend with larger numbers of candidates and have to thin the herd in order to make their hiring processes manageable. Workers also have to contend with the reality that their applications may be subject to screening by artificial intelligence programmes, which may discard their applications before they are even seen by a human.

I say this to highlight the fact that job applications are a major drain on workers' time. Their time should not be wasted by unscrupulous employers who do not disclose the pay they are going to offer successful candidates. Workers deserve to be able to make informed decisions about whether it is worth their time to apply for positions. Pay transparency is important because it also lets workers know their value. If workers can navigate a labour market that is adequately signposted by job advertisements with proposed salary ranges, they can correctly identify whether the offer being made to them is fair. This is particularly important for women workers who still contend with a gender pay gap. The Gender Pay Gap Information Act 2021 was a welcome step in tackling this issue. The Bill before us could really build on the work the Government has already done in this area.

The Bill's prohibition on prospective employers asking workers about their previous pay is also very welcome. Workers who are building their careers should not be hamstrung by the low wages of their previous jobs. This practice reinforces existing disparities in income and frustrates efforts to create a more equitable labour market. This legislation will provide important safeguards to protect workers from being exploited.

I would like to understand the reason the Bill's provisions will only apply to employers with 50 or more employees. The CSO data from 2021 show that half of all workers work for firms which employ fewer than 50 people. That means this legislation, if enacted unamended, would only apply to roughly half of job postings. This would seriously undermine its effectiveness. I understand the concerns about burdening small enterprises with excessive regulations. Small firms may have more difficulty navigating regulations than larger firms with dedicated compliance and human resources departments. This legislation, however, is not particularly complicated. A public awareness campaign in collaboration with the trade unions and IBEC would be enough to inform workers and employers about the requirements of this legislation. I believe it is a mistake to limit the Bill's potential effectiveness so drastically and disproportionately because of these concerns. It is the responsibility of all employers, large and small, to treat workers fairly. The prospective employees of small firms should be able to avail of the benefits of this legislation.

I reiterate my support for this Bill and my congratulations again to everyone, in particular to Senator Ardagh, who has worked very hard on it. It has the potential to make the job-hunting process less stressful and time consuming and more fair. It would be a welcome safeguard for workers against unsavoury hiring practices that contribute to the race to the bottom in terms and conditions. I wish that its provisions might be extended across the entire labour market. I hope this Bill is progressed swiftly by the Government and that it will be open to amendments which would strengthen the Bill's positive impact.

I thank Senators Ardagh and Crowe for bringing forward this Private Members’ Bill, which the Government will not be opposing today, thus allowing it to go on to Committee Stage.

We all agree discrimination at any stage in employment is unacceptable, and the proposed amendments brought forward here today both to the Employment Equality Act 1998 and of the Gender Pay Gap Information Act 2021 seek to improve pay transparency and further prohibit discrimination in employment in Ireland. I very much appreciate the level of work that has gone into designing this Bill, and I commend the Senators on bringing forward a proposal on such an important issue as pay transparency and how it feeds into the wider debate on equality. Bringing forward this Bill at this time is especially appropriate in respect of the wider discussion which will be under way with the EU directive on pay transparency, which it is hoped will be passed quite soon. Ireland and all of the other member states will then be in a position to transpose that into domestic law, so this is a very good time to have those discussions.

Pay transparency is an important part of employment equality and this Bill seeks to ensure that, regardless of who is applying for a job, they are equitably remunerated in the context of that employment. By including approximate remunerations in job advertisements, employers will be taking another step towards creating a more equal working society in Ireland by incorporating equality measures throughout every step of the employment process.

There are many benefits to pay transparency for both employers and employees. For employers, pay transparency can help attract and retain top applicants, or really good talent, as has been said by Senator Ardagh. It can be a competitive advantage in the job advertisement market. Further transparent communication about remuneration helps to build trust from the outset between the employer and the prospective employee and thus promotes a positive working relationship. For employees, on the other hand, pay transparency helps to close gaps and ensures a society where we are making progress towards achieving pay equity. This Bill also seeks to ensure appropriate redress mechanisms are available to those who feel they have been discriminated against regarding pay transparency.

As the Senators will be aware, the issue of pay transparency is also being considered as part of the EU directive, and in March 2021, the EU Commission published proposals for binding pay transparency measures. These measures are intended to complement and support Directive 2006/54/EC, the gender recast directive, to help address gender pay and pensions gaps in the EU. This effort will contribute to the Commission’s goal that women will thrive in a gender equal economy. The finalised text of the directive is expected to be available later this year and there are a number of key elements to the EU directive such as pay transparency for jobseekers, the right to information for employees, reporting on the gender pay gap, something we have already acted on in this House with the Gender Pay Gap Information Act the Government has brought forward, about which I will speak more later, and the joint pay assessment. These are quite a significant range of actions for which this Government will have to legislate over the course of the transposition period, and the work we will do in considering the Senators’ Bill on Committee Stage, and indeed other Bills in this area that I know are coming forth, will have to be understood in the context of always ensuring we are within the guidelines of the EU legislation. I know the Senators would agree with the approach we will take there.

I am looking forward to having the opportunity in a number of weeks to look at the finalised version of the EU directive, how it aligns with the work the Senators have done, and moving forward with legislating. We have advanced significantly on one element of the EU pay transparency directive, which is the signing into law of the Gender Pay Gap Information Act of 2021. That is in play and we have had the first reporting cycle of that Act late in the past year. We had the announcement of the gender pay gap across a range of the larger employers initially. My Department has a gender pay gap in favour of women, as it turns out. It is the only Department to have it because we have a very high representation of women at assistant secretary and principal officer level. That is important as we are the only Department to have that. That is the granular detail this legislation and this Government has brought forward and where it shows its real value.

This will have a very significant impact on decisions employees and workers will make and the companies, departments and agencies they will target to work for. The work we are doing in enhancing gender equality in the workplace is not just for the worker or the employee but also to benefit the employer because those employers who are doing the extra bit and doing even more than legislation requires of them right now will be more attractive to employees. We know that, in many spheres of labour right now in Ireland, it is an employees' market. Being shown to be advanced and being the best, therefore, is a very good position for employers to take.

Advancing socioeconomic equality for women and girls is a high-level objective of the ongoing National Strategy for Women and Girls 2017-2020, and that contributes to advancing women's full participation in employment in public life. Further equality measures through the advertising of remuneration will mean that, from the outset of job advertisements, workers will be in a much stronger position to negotiate and demand fair pay because they have access to the adequate information. Ensuring all rates of pay are transparent will strengthen our ability to prevent discrimination and will also empower those who currently have little recourse to challenging discrimination that may be occurring.

We can all agree it is unacceptable to discriminate against people on equal pay for equal work. The Employment Equality Act of 1998 provides in domestic legislation for equal pay for equal work, or work of equal value, like work for men and women. My Department remains committed to ensuring our equality legislation is kept up to date. That is why, as Minister, I undertook a review of the Equality Acts to examine their functioning and effectiveness in combating discrimination and promoting equality. In this regard, I hope to continue to improve our equality legislation and to promote equality in all areas of employment in Ireland. I look forward, in the next weeks, to bringing forward the report of the public consultation on the review of the Equality Acts. That will be a very valuable piece and we will look at a number of specific recommendations to legislate against discrimination on socioeconomic grounds.

We will be looking at the issue of the definition of gender under the legislation and looking at a number of other issues, such as the issue of non-disclosure agreements, NDAs, which I know have been the subject of much discussion in this House. Following the publication of that report, we will be looking to bring forward heads of Bill in terms of the review of the equality legislation.

Again, I thank the Senators for bringing forward this important Bill. It has been a very useful discussion. The work they have done in conjunction with the work my Department will do on the implementation of the EU pay transparency directive will be very valuable. We will be able to continue the very strong work the Government has done in terms of advancing women's participation in the workforce and protecting women and, indeed, protecting large categories of workers who may have a negotiating imbalance in terms of their current position in the workforce.

I thank all the Members who contributed today and thank them for their support. It is great to see that everyone read the Bill. I can understand where people are coming from in regard to the arbitrary figure of 50 employees, given Canada started with 250 and the United States then went very low with 15. We followed the European Commission discussions. I want to thank those in the Office of Parliamentary Legal Advisers for helping us to draft this Bill. We have been working on it with them since 2021 so it is just a coincidence that the EU came out with its guidelines in December. As I said at the beginning, it is a movement across North America and Europe, where we are seeing a move towards this type of legislation. Obviously, I hope the Minister will take on board many of the parts of our Bill when he is implementing the EU directive because a lot of work has gone into it and many very experienced draftspersons have helped us with this.

I want to raise one bugbear of mine, which was also raised by Senator Sherlock in regard to redress. People can go to the Workplace Relations Commission, WRC, but that also includes the Equality Tribunal because the Employment Appeals Tribunal and the Equality Tribunal were merged, so any equality-type complaints can be brought to the WRC. I believe the Workplace Relations Commission is wrongly named because equality disputes outside of workplaces are also brought there. I will just make that point while I have the Minister’s ear.

I thank everyone for their support and I look forward to Committee Stage.