Pay Equity Bulletin # 29

^{No. 29}

September 18 1998

RED HERRING ALERT!

RED HERRING # 8998 BY THE CHRÉTIEN LIBERALS! - DUELLING DECISIONS - PSAC Tribunal vs. Muldoon Decision

Justice Minister Anne McLellan said that the government needed to "seek clarification" of the Canadian Human Rights Act because there were "duelling decisions" from the Federal Court and the Human Rights Tribunal on the proper way to calculate the wage gap. In the next statement, Treasury Board Minister Marcel Massé said the government would withdraw its appeal if the PSAC settled the complaint. As many PSAC members have said, the only thing that needs to be clarified is the government’s commitment to human rights in this country.

FACT:

It appears the connections between the Bell case and the Tribunal order exist primarily in the minds of the Liberals. Some of the decisions Justice Muldoon made are: Unions have no right to lodge complaints on pay equity unless they have the express written consent of each and every one of the affected members; unions are jointly responsible for discriminatory wage rates because they freely negotiated those rates - unless the negotiations reached a point of impasse such as a strike*(see Red Herring # 9001 below); the Canadian Human Right’s Commission received and approved improperly formulated complaints against Bell and the CHRC acted unfairly to Bell in referring those complaints to a tribunal. There are others but like the preceding they have little bearing on PSAC’s case.

RED HERRING # 8999 - METHODOLOGY

The one area in the Muldoon decision that the government is hanging its hat on is the proper methodology to calculate the wage gap - what Mr. Massé referred to as the "formula". Methodology was not germane to the Bell case. No evidence or arguments were presented to the judge concerning methodology. Likewise the court did not deal with the validity of the CHRA Equal Wages Guidelines which are binding on tribunals. These guidelines state that in group complaints the male groups are considered one group and an indirect wage comparison using the male group average wage rate is appropriate. Much of the evidence and arguments that were presented to the PSAC Tribunal hinged on the proper interpretation and application of the guidelines.

In almost an aside in the Bell case, Justice Muldoon said that a direct job-to-job comparison is the only correct methodology according to the Act. Treasury Board now says that’s what their methodology was. It was not. None of the three parties in front of the PSAC Tribunal presented a methodology that was based on jobs. The Tribunal decided the best methodology in this case was "level to segment". Treasury Board’s methodology (at least the last one!) was to reject all of the male evaluation data except for the male occupational groups that had the exact same range of points as the female occupational group. Treasury Board Counsel admitted in front of the Tribunal that this methodology would require the Tribunal to strike down the Equal Wages Guidelines. In addition, Treasury Board presented no evidence whatsoever to prove the size of the sample it used as the male comparator "occupational group" was statisically reliable.

FACT:

Treasury Board’s "formula" wasn’t job-to-job.

FACT:

An expert tribunal is the place to work out complex cases of methodology not a court. The Tribunal had 262 hearing days. Justice Muldoon had four - none of which dealt with methodology!

RED HERRING # 9000 - COST

Mr. Massé said if Justice Muldoon`s methodology were applied to the PSAC case, the government would only owe $100-million.

FACT:

Mr. Massé has no way of knowing what the cost impact of a job-to-job comparison would be in the PSAC case. The equal pay study was not conducted in a way that gathered information to make job-to-job comparisons. The total cost might be a whole lot more. We have no way of knowing because there is no data allowing such comparisons.

*RED HERRING # 9001 - FREELY NEGOTIATED WAGE RATES.

Justice Muldoon and many right-wing free market zealots have said unions should be jointly responsible for discriminatory wage rates because they freely negotiated them.

FACT:

PSAC bargained to an impasse in 1991! Remember the 1991 strike? The history of negotiating with the federal government includes strikes, legislated roll-backs, and wage freezes. Remember the CR strike in 1980? Remember 6 & 5 in 1982? Remember the commitment to conduct a study to identify wage inequities? Remember the freeze? How could we forget decades of bullying by successive federal governments!