Pay equity
The End of Pay Equity for Women in the Federal Public Service
A Critical Analysis of the Public Sector Equitable Compensation Act
Introduction
It is with outrage that our members witnessed how, despite intense mobilization and public outcry, the Conservative government moved ahead this winter and undemocratically implemented its plan to strip public sector workers of their right to pay equity. The Budget Implementation Act was tabled on February 6, 2009 and received Royal Assent just a few weeks later, on March 12, 2009.
The federal government has included provisions in this Act that will radically reform the law on pay equity for the federal public service. PSAC members– 62% of whom are women- will be very hard hit by this new law.
The Public Sector Equitable Compensation Act, that was included in the Budget Implementation Act1, will restrict the substance and the application of pay equity in the public sector. The legislation will make it more difficult to claim pay equity by redefining the notion of “female predominant” job group to require that women make up 70 per cent of workers in the group. It also redefines the criteria used to evaluate whether or not jobs are of “equal” value.
The Act transforms pay equity into an “equitable compensation issue” that must be dealt with at the bargaining table. Pay equity is a fundamental human right that should not be vulnerable to being traded away at a bargaining table. The importance of this principle is particularly underlined when the employer is capable of unilaterally imposing mandatory wage rates as the federal government has done in the Expenditure Restraint Act, which forms part of the same omnibus budget Act that contains the pay equity measures.
Pay equity is a human right that has been protected by the Canadian Human Rights Act since 1977. The Supreme Court of Canada has recognized that when a government violates women's right to pay equity, this constitutes an infringement of their constitutional equality rights, protected in the Canadian Charter of Rights and Freedoms. Pay equity is recognized by the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and it is protected in the ILO Convention 100 on Equal Remuneration for Work of Equal Value.
Instead of moving forward and ensure the progressive realization of the right of all women to pay equity, the federal government has adopted regressive legislation that will seriously undermine working women's human rights.
As we will see in Part I of this document, the Public Sector Equitable Compensation Act (PSECA) severely restricts pay equity in the public service, it allows pay equity to be bargained away, it compels women to file their pay equity complaints without union support and it prohibits access to the Canadian Human Rights Commission.
As discussed in Part II, the PSECA violates several fundamental constitutional rights enjoyed by workers in the public service; it infringes women's constitutional equality rights protected by section 15 of the Canadian Charter of Rights and Freedoms. It also violates the PSAC's and PSAC members' freedom of association and freedom of expression rights that are guaranteed in section 2 of the Charter. In PSAC's opinion, the violations cannot be justified in a free and democratic society.
Part I: The Problems with the PSECA
Here are 4 major problems with the Public Sector Equitable Compensation Act:
1. It Restricts Pay Equity in the Public Service
Only Certain Employers are Targeted by this Act
This Act applies to the following employers: Treasury Board, separate agencies, and the RCMP (section 2 definition of “employer”). It does not apply to the federally regulated private sector.
“Equitable Compensation,” not Pay Equity
This Act never once mentions the words “pay equity.” It introduces the new notion of “equitable compensation,” which it never defines. This expression will create a lot of uncertainty, since it is new and untested in Canadian and international human rights law. This uncertainty will be compounded because the Act also seeks to change the criteria used to evaluate whether or not a female job is of equal value to a male job.
Undervaluing Women's Work
Under the current system, it is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value. In assessing the value of work performed by employees, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed (s. 11, Canadian Human Rights Act).
The Act would add to these well-known criteria the following factors:
“… the employer's recruitment and retention needs in respect of employees in that job group or job class, taking into account the qualifications required to perform the work and market forces operating in respect of employees with those qualifications (s. 4(2)b – emphasis ours).
Market Forces
The reference to “market forces” is not conducive to ensuring pay equity since it is those very market forces that have historically undervalued women's work. Pay equity advocates have often explained to the federal government that the free market will never produce equitable results for women and other disadvantaged workers. Proactive pay equity legislation is precisely what is needed to remedy the effects of sexist and racist biases in the labour market.
At a time when the world economy is in crisis because of the excesses of the “free market,” it is plainly wrong-headed for the Harper government to insist on including a reference to market forces not only in this specific context, but also in the preamble of this Act.2
Restricting the Comparator Groups
In addition to adding new evaluation criteria, the Act also seems intent on restricting to the same bargaining unit the job groups or job classes that can be compared during an “equitable compensation assessment”:
“Subject to the regulations, an equitable compensation assessment in respect of a job group or job class is to be conducted having regard to
(a)…in the case of a job group or job class within a portion of the federal public administration, including a department… only job groups or job classes, as the case may be, within any of those portions of the federal public administration” (s.4 (3)).Similarly, job groups3 or job classes within a separate agency, the Canadian Forces and the RCMP can only be compared to job groups or job classes within the separate agency, or the Canadian Forces, or the RCMP (s. 4(3)). This means that instead of being able to compare the value of jobs that are usually held by women within the entire public sector to jobs of comparable worth that are usually held by men in the public sector, the comparison will have to be done on a much smaller scale. In other words, it will be more difficult to find groups to compare to, and consequently more difficult to establish that there is a pay equity problem.
Caving in to the Employer Lobby
Is it a coincidence that FETCO, the consortium of federally-regulated employers, has been lobbying for years for precisely this kind of approach? We should anticipate that FETCO will lobby very hard for a similar legislative framework in the private sector in the upcoming months.
Making Women Count Less
The Act would redefine a “female predominant” group as a job group or job class that is composed of at least 70 per cent women. This would make it more difficult to raise pay equity issues in most public sector workplaces. Currently the PSAC represents members in 10 public sector job groups that are considered “female predominant.” If this Act is adopted, only five would remain. For example, of the 2,963 “information services” workers currently employed by the federal government, 2,039 of this group – or 68.8 per cent – are women. Under the new rules, these women would not have the right to claim pay equity.
2. The Act Allows Pay Equity to be Bargained Away
New Union Liability
The Act would impose on the employer, and now on the union too, a basic obligation to take measures to provide employees with equitable compensation:
“In the case of unionized employees, the employer and the bargaining agent shall take measures to provide employees with equitable compensation in accordance with this Act” (s. 3(1)).
However, it is difficult to see how bargaining agents are meant to “provide” equitable compensation, since they are not the ones who pay workers. In addition, it is the employer – not the union – that decides how different jobs are classified, and this ultimately has a bearing on how a job is evaluated. So, while wages and working conditions are – to a certain extent – subject to collective bargaining, management rights remain and ultimately the obligation to comply with pay equity measures properly remains with the employer.
Pay Equity on the Bargaining Table
Under this Act, the new “equitable compensation” regime is squarely linked to collective bargaining for unionized workers.4 The following paragraphs outline the process that would be instituted under this Act.
The Employer's “Statement”
Before the expiry of the collective agreement, the employer must provide the bargaining agent with a statement that sets out the number of employees that form part of each job group and the number of males and females in each group. The bargaining agent must then make this information available to all employees (Section 12(1)). Special provisions would apply if there is no collective agreement yet.
No Obligation to Provide Union with Necessary Information
Under this Act, the only information that the employer is required to provide to the union is information on the gender composition of the various groups. In our experience, this is totally inadequate for the purposes of assessing pay equity. A proper assessment requires complete job information on all male and female dominated groups. This would also include full job descriptions that provide complete information on all equity factors in addition to all relevant organizational charts.
No Proactive Obligation to Review Pay Practices
Before collective bargaining begins, the employer and the bargaining agent shall, according to the Act, “each conduct preparatory work to enable it, during collective bargaining, to raise or to respond to questions concerning the provision of equitable compensation to employees in female predominant groups” (s. 13).
But the Act does not actually create an obligation on employers to review pay practices and identify any pay equity gaps. It is thus misleading to call this a “proactive” equitable compensation law, as is stated in the preamble of the Act.
No Joint Compensation Assessment
The legislation appears to contemplate separate equitable compensation assessments by each of the parties. This is very different from other legislation where the parties agree on how to do the assessment and carry it out jointly.
Having two separate assessments, in addition to being a great waste of resources (these types of assessments involve a great deal of time and work), would also lend itself to disputes over whose assessment should be accepted. Unless there is a clear provision for union access to complete information and access to all employees on work time to answer any questions about that work, it would be very difficult for the union to complete a quality assessment.
No Clear Definitions
Unhelpfully, the Act defines an “equitable compensation matter” with a tautology:
“An equitable compensation matter exists in respect of a job group or a job class if an equitable compensation assessment determines …that equitable compensation is not being provided to employees in a job group or a job class” (s. 4 (4)).
The Equitable Compensation Report
If one of the parties “intends to negotiate collectively in respect of the provision of equitable compensation,” it must provide the other party with a notice that identifies the female predominant job groups concerned (s. 14).
It must also “without delay” (and subject to a $50,000 fine, as provided for in section 41) provide the other party with a report that identifies the group, describes the method used to assess the pay inequity and propose a remedy:
An employer or a bargaining agent that raises any equitable compensation matter in the course of collective bargaining in respect of a female predominant group shall, without delay, provide the other party with a report that
a) identifies the female predominant group to which the matter relates;
b) describes how the equitable compensation assessment was conducted in respect of that female predominant job group; and
c) sets out how the equitable compensation matter should be resolved” (s. 15).Presumably, the issue is then negotiated between the parties, and an agreement is concluded – or not.
Reaching an Agreement
If there is an agreement, the Act states that the bargaining agent must file a joint report with the employer outlining how the equitable compensation assessment was conducted before submitting the collective agreement for ratification. If the employer and the bargaining agent have determined that an equitable compensation matter exists, they must specify “whether that matter is to be resolved during the term of the proposed collective agreement and if not, the reasonable time within which it is to be resolved” (s. 22 b)). The Act states that it is a summary offence to contravene this section, and that a $50,000 fine may be applied (s. 41).
Justice Delayed is Justice Denied
This process thus clearly allows for delays in the implementation of pay equity and it shows how far the government has moved from viewing pay equity from a human rights perspective. Indeed, any human right – whether it is the right to be free from racial discrimination or harassment or the right to equal pay for work of equal value – must be respected as of the time of the enactment of the human rights law that guaranteed it.
One could not, for example, negotiate a collective agreement that would provide that the employer must not discriminate against workers of colour as of next year – the proscription against employer discrimination takes effect immediately. This is the very essence of human rights protection. It is unconscionable that this Act would allow employers to delay the implementation of pay equity while holding unions liable for those delays, particularly when unions are not the agents responsible for refusing equal pay for work of equal value.
The Conciliation Process
The Act states that if no agreement has been reached between the parties, the equitable compensation matter may also be the subject of conciliation. A Public Interest Commission would determine whether or not any job group is female predominant, recommend how the equitable compensation assessment is to be conducted, and include in its report recommendations that would result in the provision of equitable compensation to the employees concerned (s. 21).
The Arbitration Process
The equitable compensation matter can also be sent to arbitration. The arbitration board shall determine whether any job group is female predominant, and how the equitable compensation assessment is to be conducted. It shall make an arbitral award that sets out a plan to resolve those matters “within a reasonable time” (s. 18 and 19).
The Need for a Specialized Tribunal
Equitable compensation assessment is a highly specialized field. That is why legislation usually provides for specially trained separate agencies to adjudicate disputes. Arbitrators, Public Interest Commissions doing conciliation and the Public Service Labour Relations Board do not have the special training and expertise to enable them to conduct these assessments.
3. The Act Compels Women to File Complaints Alone – Without the Support of their Union
Workers must File a Complaint on their Own
There is a complaint mechanism before the Public Service Labour Relations Board provided in the Act, but it is only open to a “unionized employee,” and not to a bargaining agent (s. 23).
Unions Can be Fined for Representing their Members
Moreover, not only is the union prevented from filing a complaint against an employer that refuses to honour its pay equity obligations, the bargaining agent (or the employer) is strictly forbidden to “encourage or assist” the complainant in filing a complaint (s. 36). If a union does help a member file a complaint, it could be made to pay a $50,000 fine (s. 41).
It is astounding that this Act would impose a fine on a union for doing what it is legally obligated to do: represent its members! Without union support, individual workers rarely have the resources or the strength to deal with the delays and legal tactics that are deployed by employers in most cases.
The Burden of Proof is on the Worker
The Act states that a complaint can be filed if the employee has “reasonable grounds” to believe that her employer or bargaining agent has failed to comply with the section 12 obligations.5
An employee can also file a complaint if she is bound by a collective agreement and has reasonable grounds to believe that she is a member of a female predominant job class and that an equitable compensation assessment would lead to the identification of an equitable compensation matter. She then has 60 days after the agreement was “entered into” to file her complaint with the Public Service Labour Relations Board.
PSLRB's Powers Undefined
While the PSLRB has broad regulatory powers concerning the procedural and other aspects of these complaints, we do not yet know what those regulations might actually look like.
A Difficult Process for Unrepresented Workers
The Board may request a copy of the statement identifying the job class, the information regarding female predominance and any equitable compensation assessment. It may make an order requiring the employer and the bargaining agent to file a report indicating how they plan to conduct an equitable compensation assessment. If they have done an equitable compensation assessment and this assessment identified an equitable compensation “matter,” the Board will need to know how they “plan to resolve the matter in the course of the next collective agreement” (s. 33).
PSLRB Rulings
If the Board rules that the equitable compensation assessment contains an error that is “manifestly unreasonable,” or if their equitable compensation plan “fails to make reasonable progress” towards resolving an equitable compensation matter, the Board may require the employer and the bargaining agent to take measures to correct the error or alter the plan and file a report describing the measures that have been taken.
The Board may also, if more than two years remain before the termination of the current collective agreement, “alter the collective agreement in such a way that the termination date is any day specified by the Board that is within the period that begins two days after the day on which the order is made…” (s. 33 (2) (b).
If the Board rules that the employer and the bargaining agent have “committed an error that is manifestly unreasonable in the fulfillment of their obligations,” it can choose to conduct its own equitable compensation assessment, “and may require the employer and the bargaining agent to pay the complainant lump sum compensation.” It may also “alter any collective agreement” that binds the employer and the bargaining agent so that the employees receive equitable compensation (s. 33 (3)).
Finally, the Board may order the employer and the bargaining agent to pay all or part of the costs to the complainant (s.34).
Small Penalties for Reprisals Against Workers
Sections 37 and 38 provide for penalties if an employer or a bargaining agent has exacted reprisals against a worker who files a complaint on an equitable compensation matter. The penalty for this, however, is set very low at $10,000
(s. 40).A Reverse Onus
Surprisingly, section 39 provides that if a complaint against reprisals is made in writing, “the written complaint is itself evidence that the contravention actually occurred and, if any party to the complaint proceedings alleges that the contravention did not occur, the burden of proving that it did not is on that party.” It is likely that this proposed reverse onus provision will be challenged as unconstitutional.
This system also means the Board will be called to rule on a pay equity complaint filed by an individual, without the benefit of union input or advocacy. Worse, the union will be put in an adversarial position with regard to its member who filed the complaint.
The notion that an unrepresented worker should have to fight her way through this process without the support of her union is patently unfair.
Nothing for Workers in the Federally-Regulated Private Sector
In addition to the shortcomings that we have already identified, this Act does not address the many problems that were identified with the current process under the Canadian Human Rights Act for federally-regulated sectors other than the public service, such as crown corporations.
This Act will do nothing to address the delays and frustrations experienced by PSAC members at Canada Post. Clerical workers there who filed a pay equity complaint over 25 years ago are still before the courts. Nor will this Act help the Radio-Canada workers who have been before the courts for almost 10 years, demanding equal pay for work of equal value. If the federal government really wanted to improve the Canadian pay equity law, why did it leave these workers out in the cold?
4. The Act Prohibits Access to the Human Rights Commission
Section 399 of the Budget Implementation Act amends the Canadian Human Rights Act (CHRA) by stating that the Canadian Human Rights Commission does not have jurisdiction to deal with pay equity complaints in the public service. It would add a new section to the CHRA:
40.2 The Commission does not have jurisdiction to deal with complaints made against an employer within the meaning of the Public Service Equitable Compensation Act alleging that
(a) the employer has engaged in a discriminatory practice referred to in sections 7 or 10, if the complaint is in respect of the employer establishing or maintaining differences in wages between male and female employees; or
(b) the employer has engaged in a discriminatory practice referred to in section 11.
Existing complaints that are before the Canadian Human Rights Commission would, once this Act is adopted and receives Royal Assent, be transferred to the Public Service Labour Relations Board. The Act provides that the Board has the power to interpret and apply section 7, 10 and 11 of the CHRA. The Board would have the same powers as the Canadian Human Rights Tribunal, except that no monetary remedy may be granted except a lump sum payment (s. 396(9)).
In addition to the shortcomings that we have already identified, this Act does not address the many problems that were identified with the current process under the Canadian Human Rights Act for federally-regulated sectors other than the public service, such as crown corporations.
This Act will do nothing to address the delays and frustrations experienced by PSAC members at Canada Post. Clerical workers there who filed a pay equity complaint over 25 years ago are still before the courts. Nor will this Act help the Radio-Canada workers who have been before the courts for almost 10 years, demanding equal pay for work of equal value. If the federal government really wanted to improve the Canadian pay equity law, why did it leave these workers out in the cold?
Part II: Constitutional Rights Violated
The PSAC considers that the Public Sector Equitable Compensation Act violates several fundamental constitutional rights enjoyed by workers in the public service: it infringes women's constitutional equality rights protected by section 15 of the Canadian Charter of Rights and Freedoms. It also violates the right to freedom of association and freedom of expression that are guaranteed in section 2 of the Charter. In PSAC's opinion, these violations cannot be justified in a free and democratic society.
2.1 A Violation of Women's Equality Rights
The PSECA introduces a new mechanism to address “equitable compensation” in the public sector that replaces the rules and procedures that are normally available under the Canadian Human Rights Act. However, not only does the PSECA fails to provide an adequate alternative mechanism, it will actually restrict the capacity of women in the public service to claim and to obtain pay equity.
For example, by including a reference to “market forces” in the criteria used to evaluate whether work is of “equal value”, the Act directly undermines the ability of women to receive equal pay for work of equal value. Indeed, “market forces” are precisely premised on the undervaluation of women's work!
As we have seen, female-dominant groups in separate agencies will not be able to compare their wages to those paid in male-dominated groups in the broader public service. The limits created by the Act on the available “comparator groups” will have the effect of preventing access to the equitable remuneration evaluation process, and thus will simply entrench wage discrimination.
Some workers will be entirely excluded from accessing this inadequate “equitable compensation” mechanism: workers who belong to a job group or a job class comprised of between 55-69% women are excluded from the definition of a female-predominant group under the Act. In other words, while under the Canadian Human Rights Act and the Equal Wage Guidelines, they would have a right to claim pay equity, under the PSECA they are denied the right to participate in any process to address issue of wage discrimination.
As we have seen, the Act precludes federal public service workers from accessing sections 7, 10 and 11 of the Canadian Human Rights Act, that relate to wage discrimination and pay equity. Instead, it requires unions to negotiate issues of equitable compensation. By requiring that unions and employer negotiate pay equity at the bargaining table, the PSECA undermines the established principle that human rights cannot be traded against other terms and conditions of employment or waived by agreement. This effectively eviscerates the right to pay equity.
In addition, the Act provides that wage discrimination need not be addressed in the life of the current collective agreement, provided that it is addressed in a “reasonable” time thereafter. This clearly indicates a legislative tolerance of ongoing discriminatory pay practices.
The Act also prohibits unions from assisting or encouraging their members to file complaints against discriminatory wage practices. Given the extensive resources required to prepare this kind of complaint, it is extremely unlikely that individual employees will be able to meaningfully challenge an employer's equitable compensation assessment or ongoing pay practices.
The Act also limits the kind of remedy that can be ordered by the Public Service Relations Board. The board can only order the payment of a lump sum in respect of past discrimination. It cannot remedy ongoing wage discrimination, address structural issues such as classification reform that is often the cause of wage discrimination.
Finally, the combined effect of the PSECA and the Expenditure Restraint Act - that imposes limits to increases in rates of pay for employees in the federal public sector from the fiscal years starting in 2006 and ending in 2011- discriminates against women by precluding workers currently being paid discriminatory wage rates from achieving redress before the end of the 2010-2011 fiscal year.
Because of all these reasons, the PSECA is an ineffective alternative to the mechanism under the Canadian Human Rights Act. It will not only be of little – if any – use in addressing pay inequity, it will actually diminish the capacity of women and their unions to identify pay discrimination and take action to remedy the situation.
In other words, this new law will further entrench existing wage discrimination for workers in female-dominated groups. The downgrading of pay equity as proposed in this Act is a violation of the constitutional Charter equality rights of working women.
2.2 A Violation of the Freedom of Association and Freedom of Expression
The prohibition contained in the Act against union assistance or encouragement in filing a pay equity complaint constitutes a violation of the right to freedom of association that is guaranteed in section 2 of the Charter.
Indeed, this prohibition completely restricts the ability of unions and their members to take collective action, and it violates the right of workers to be represented by their unions in important matters that relate to their working conditions. It precludes the unions from accomplishing their most basic duty, that us fully representing their membership with respect to wage related issues..
The prohibition also prevents the unions from expressing any views and advising the workers that they represent on anything that might assist or encourage them to file complaints regarding pay equity. This undermines the constitutional right of unions to express opinions and give advice to their members on matters that bear on their members' rights as employees.
Conclusion
The Public Sector Equitable Compensation Act is not compatible with Canada's obligations under international human rights treaties – in particular with the Convention for the Elimination of all forms of Discrimination against Women (CEDAW) and the International Labour Organization Convention 100 on equal pay for work of equal value - because it undermines our commitment to eliminating sex discrimination from pay practices.
In March 2009 2009, PSAC sent an urgent notice to the United Nations Commission on the Status of Women to alert them to this new situation. In this letter, PSAC received the support of 40 important trade unions, women's groups and human rights groups across Canada and in Québec. The PSAC filed a formal “communication” with the United Nations Commission on the Status of Women on August 13, 2009.
But perhaps most importantly, the Public Sector Equitable Compensation Act imposes limits on working women's constitutional rights that are simply not justifiable in a free and democratic society. It also violates the freedom of association and freedom of expression guarantees in the Charter. On April 27, the PSAC initiated legal procedures to challenge this discriminatory and unfair legislation in court.
In May 2009, sister Patty Ducharme, PSAC National Vice-President, presented PSAC's Brief on the PSECA to the Standing Committee on the Status of Women. In June 2009, the Standing Committee endorsed PSAC's recommendation, and it called for the PSECA to be abrogated, and replaced by a truly proactive federal pay equity law, as recommended by the Pay Equity Task Force in its report released in 2004, entitled Pay Equity: A Fundamental Human Right.
This would be a first step toward a proactive pay equity law that would make a real difference in the lives of working women.1 Section 394 of the Budget Implementation Act (2009) provides for the enactment of the Public Sector Equitable Compensation Act.
2 “Whereas employers in the public sector of Canada operate in a market-driven economy.”
3 Job class is defined as “two or more positions in the same job group that have similar duties and responsibilities, require similar qualifications, are part of the same compensation plan and are within the same range of salary rates” ( section 2 ). Job groups will be defined by regulations. The government can, by regulation, “restrict” the job group or the job class to which an equitable compensation assessment is to have regard (s. 4(5) d)).
4 The act creates two sets of procedures for unionized and non-unionized workers. Procedures for non-unionized workers are not summarized here.
5 This refers to the statement that the employer must provide and that the bargaining agent must share with the employees -- documentation that sets out the number of employees that form part of each job group, and the number of males and females in each group (s. 23).
Date Modified : 2011/03/09
