No. 14

February 6, 1998

THE CANADIAN HUMAN RIGHTS TRIBUNAL

During 1997 the PSAC attempted to obtain a settlement of the federal pay equity complaint for our members. Unfortunately, the government spent more time making threats and walking away from the table than negotiating in good faith. In 1998, our union will continue pursuing the goal of a negotiated settlement within the provisions of the Canadian Human Rights Act. If the government does not cooperate, the federal pay equity complaint will finally be resolved through a decision of the Canadian Human Rights Tribunal established to hear our complaint. This bulletin provides some information about the Tribunal and what Alliance members can expect from it.

What is the tribunal?

A Human Rights Tribunal is independent from the Canadian Human Rights Commission(CHRC). It is a panel of three people who act like judges to interpret the Canadian Human Rights Act. They hear evidence and arguments based on fact and the law and they make rulings. The three members on the PSAC/CHRC versus the Treasury Board Tribunal - one man and two women - were chosen by the President of the Human Rights Tribunal from a list of names put forward by the party in power at the time of their appointment. They are from different regions of the country and have different backgrounds.

Tribunal Decisions to date

The Tribunal has already ruled in PSAC's favour several times. Their most encouraging decision came out in 1996 when they ruled that the results of the joint equal pay study (1985-89) were reliable and could be used to calculate "the existence or otherwise of a wage gap between male and female employees employed in the same establishment".

Tribunal Decisions to come

From spring 1996 to January 1997, the parties made arguments and are now waiting for a decision on the following:

• the actual methodology to be used to calculate the wage gap,
• to what date the payments should be retroactive,
• whether simple or compound interest should be paid and what the interest rate should be,
• whether any damages should be paid (the Canadian Human Rights Act allows for up to $5,000 per affected person), and
• whether any party should receive all or part of their legal costs.
  

When can we expect that decision?

The PSAC has recently received a letter from the Registrar of the Human Rights Tribunal which said we could not expect a decision before the end of March, 1998. We are hopeful it will not be too much longer after that but we know the length and complexity of the case makes it a complicated decision to write.

What is the impact of the Tribunal Decision?

Contrary to Marcel Massé's statements about another set of hearings, the Tribunal's decision is binding. It can only be appealed by either party within 30 days if there is an error in fact or in law. In other words, the government can't appeal the decision simply because it doesn't like it. If there is no error in fact or in law in the Tribunal's decision there can be no appeal. An appeal would be heard by the Federal Court (Trial Division). If the appeal gets past this stage it could be referred to the Federal Court (Appeal Division) and perhaps even the Supreme Court of Canada. However, the Supreme Court does not always grant leave to appeal. And, only those parts of the decision which are in error would be argued.

Even if the PSAC or the Treasury Board think there are good reasons to appeal the decision, whatever monies the Tribunal has decided should be paid to PSAC members will have to be paid. The appeal process does not stop the Tribunal's decision from being applied unless the government can convince the courts otherwise. Again, a court will not agree to stop any payments just because the government doesn't agree with or like the Tribunal's decision.

The end is in sight - sooner rather than later

The pressure PSAC members have put on their Members of Parliament has brought them closer to a positive solution than at any time in the past.

• In January 1997, Treasury Board's lawyer was in front of the tribunal insisting no money was owed.
• In April, Treasury Board offered $800-million to settle, in effect, admitting they knew they owed money. Members lobbied politicians, organized demos, wrote letters to the editor, educated their colleagues and countered Treasury Board misinformation with the truth.
• In August, Treasury Board increased their offer to $1.3-billion.

PSAC has received a large degree of support from the media and the general public for its position. PSAC is part of a national "Fair Wages/Pay Equity" campaign with the Canadian Labour Congress and the National Action Committee on the Status of Women. Questions from the New Democratic Party and the Bloc Quebecois continue to maintain a high profile for this issue in the House of Commons. One year ago none of this was the reality. Thanks to the commitment, energy, creativity and, most importantly, solidarity of PSAC members, this issue is coming to its rightful conclusion.