Finance Committee on Nov. 20th, 2018

[The Chair, Liberal, Wayne Easter]

Is there any further discussion?

(Amendment negatived on division [See Minutes of Proceedings])

Next is NDP-31.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

This is another submission from the pay equity coalition. They are urging that the plans be filed with the commission. If the committee agrees, then this would require a filing of a copy of the pay equity plan with the Canadian pay equity commission no later than 15 days after its completion. So far the requirement to file a plan with the commission is what they described as a serious gap in the legislation. For reasons of transparency, tracking and enforcement, filing the copy of the plan with the commission is recommended by the experts in the field.

[The Chair, Liberal, Wayne Easter]

Ms. Rudd.

[Kim Rudd]

Thank you, Mr. Chair.

The member opposite said a number of times not to make women wait, and I think this amendment does that because it increases the administrative burden on the commissioner. The commissioner has the power to inspect and to access pay equity plans, so if a complaint is made they have the ability to do that. Suggesting that they have to look at each plan I think would create a backlog. I don't think we'd be looking at 2027, but beyond, so I'll be voting no on this.

Thank you.

[The Chair, Liberal, Wayne Easter]

Ms. Malcolmson.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Given that the government, despite its avowed commitment to feminism and pay equity, failed to fund anything in this year's 2018 spring budget for establishment of the pay equity commission, any of the workings that would have started to get us ready for this, I certainly have concerns about capacity as well. This is a government that's willing to spend and talks a good talk on feminism but doesn't implement in a way that is equivalent to its language and its attestations.

This is simply a requirement to file the plan. It doesn't ask the pay equity commissioner to do anything, but it certainly fits in with what I believed were our collective commitments to transparency. To say we're only going to go back and inspect if needed is built on a need to have filed the plan with the commissioner in the first place. Filing surely should be the least of the things that the commissioner is both tasked with but also funded to be able to do.

[The Chair, Liberal, Wayne Easter]

Okay, we'll call the vote on NDP-31.

(Amendment negatived on division [See Minutes of Proceedings])

On Liberal-6, we have Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Mr. Chair, this amendment is much the same as my previous one. It is not clear in the current version that these provisions will apply to crown corporations. I am therefore proposing an amendment that those organizations be subject to this legislation.

[The Chair, Liberal, Wayne Easter]

Is there further discussion?

(Amendment agreed to [See Minutes of Proceedings])

Now we go to NDP-32.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Thank you, Chair.

This is an amendment proposed by CUPE in relation to dispute resolution. In their testimony to committee, they found that the dispute resolution mechanism in part 8 inexplicably and unfairly distinguishes between employees and bargaining units. Those are their words. They say that the provisions are of concern to CUPE because they appear to limit the ability of bargaining agents to pursue remedies on behalf of their members.

Without a rationale, the exclusion from the complaint process seems arbitrary and unnecessarily limits the duty of bargaining agents to exercise all the rights of their members on their behalf. The proposed legislation recognizes that employees who complain are vulnerable to reprisals by providing a complaint process for such situations, but at the same time, the existing rule limits the capacity of unions to exercise the rights of their members on their behalf.

Their recommendation is to amend these two proposed sections, 149 and 150. This is on page 6 of their submission. They were on the record.

Thank you.

[The Chair, Liberal, Wayne Easter]

The bells are ringing. Are we okay to go until 15 minutes before the vote?

[An hon. member]

No.

[The Chair, Liberal, Wayne Easter]

Okay, then we will have to adjourn until after the bells.

The meeting is suspended until after we vote.

[The Chair, Liberal, Wayne Easter]

We'll come to order.

We will go to amendment NDP-32.

The floor is yours, Ms. Malcolmson.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Thank you, Chair.

This is another amendment to the pay equity legislation that's proposed by CUPE.

CUPE represents 23,000 who work in federally regulated industries, mainly in the private sector, such as airlines, telecommunications, ground transportation and ports. They also represent employees at the RCMP. They have four decades of experience in the development of pay equity plans and overseeing their implementation under provincial pay equity regulatory regimes.

They said to the committee that they've been an integral partner in closing the gender wage gap in numerous employment sectors and workplaces across Canada and in helping Canada meet its obligations to ensure the human right to equal pay for work of equal value. They have successfully challenged the constitutionality of certain provisions of pay equity legislation.

Their submission to the committee was that they believe the federal government should be setting a high standard for the provinces to emulate and should ensure the legislation already deemed unconstitutional by the courts is not replicated in this federal pay equity legislation. I'll just flag, for anybody watching on television, that every CUPE amendment proposed so far, which the NDP has advanced, has been voted down by the government members and sometimes by the Conservatives too.

I hope that with the final three amendments I propose, we can maybe change the tone. There are decades of litigation and collective bargaining. Women who work inside unions and are protected by collective agreements do have much more significant pay equity protection. That's where our experience comes from, but we haven't had federal legislation and we should be building on the experience of these people who have been in the trenches. I promise you, they would not have spent their time at the committee or proposing these very detailed amendments if they did not think that they were necessary.

Here is an amendment proposed—this is NDP-32—by CUPE. They flag that in the enforcement section of this act it contemplates an extraordinary degree of responsibility for the pay equity commissioner, providing technical assistance to employers and committees undertaking dispute resolution, making decisions on the interpretation and application of the act, and providing monitoring and oversight functions. The commissioner and the Canadian Human Rights Commission must have all the resources necessary to fulfill these new roles. That is a big ask of them. Make sure that this is a function that is funded effectively.

They also urge that the dispute resolution mechanisms found in part 8 be amended. They said that the mechanisms inexplicably and unfairly distinguish between employees and bargaining agents. The provisions as written are of concern to CUPE because they appear to limit the ability of bargaining agents to pursue remedies on behalf of their members, particularly if the employer has managed to utilize any of the mechanisms that permit the unilateral establishment of a pay equity plan.

They urge that without a rationale the exclusion from the complaint process seems arbitrary and unnecessarily limits the duty of bargaining agents to exercise all of the rights of their members on their behalf. The legislation as written recognizes that employees who complain are vulnerable to reprisals by providing a complaint process for such situations, but at the same time, the capacity is limited for unions to exercise the rights of their members on their behalf.

They proposed two detailed amendments and these are captured in NDP amendment 32.

The affect of these two amendments would be that proposed subsection 149(2) would read, “Any employee or any bargaining agent that represents unionized employees”—that's the inclusion of the word—“to whom a pay equity plan relates that has reasonable grounds to believe that the employer has attempted to influence or interfere with the selection by its non-unionized employees of members to represent them on a pay equity committee, or that the employer or a bargaining agent has acted in bad faith or in an arbitrary or discriminatory manner while exercising their powers or performing their duties and functions under this Act, and who is affected or is likely to be affected by the alleged behaviour may, within 60 days after the day on which they had become aware of the alleged behaviour, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.”

That's the first amendment.

The second one is adding to 150(1), “Any employee”. Those are the new words. It would read, “Any employee or bargaining agent that represents unionized employees to whom a pay equity plan relates that has reasonable grounds to believe that there has been a contravention” and so on.

Then there's a proposal to delete these words:

other than sections 32 to 51, 78 and 79 and any regulations made under any of paragraphs 181(1)(b) to (h)

The rest of the wording stands.

Again, this you heard in testimony. You had the opportunity to ask the witnesses when they came to committee. You have our amendment. This is the NDP advancing the advice of labour. We hope the government members will use their majority to take up this amendment. We want to get this legislation right, and that's the spirit in which the amendment is offered.

[The Chair, Liberal, Wayne Easter]

Thank you very much, Ms. Malcolmson.

Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chair.

I find it a little regrettable that we are using the presence of the cameras to huff and puff and give the false impression that the government is not listening to our union friends. National unions have worked very hard for workers' rights, and more specifically for women's rights in terms of pay equity.

Mr. Chair, let us recall all the testimony this committee heard. Everyone applauded the work that the government has done to introduce this bill, which is finally going to guarantee that pay equity.

Ms. Malcolmson seems to want to give the impression that my colleagues and I on this side of the table are not listening to people, but she seems to be forgetting a number of facts. It was only possible for this bill to be drafted because of the consultations that our officials and our government had with union leaders and with those covered by the provisions of the bill before us.

We are now in the process of considering some of the provisions in the bill to see whether we should amend the provisions and thereby improve the bill. People of good will can disagree, you know. That's the situation we find ourselves in here.

I now go back to the task at hand and to the two proposals made by the NDP, more specifically amendment NDP-32, which I am going to vote against. The only reason why the proposal in this amendment is not part of the provisions of the bill is in order to allow good-faith negotiations without imposing too formal a process. The intent is to encourage parties to work together to resolve any disagreements coming from a pay equity committee. If no solution can be found, the next stage is to file a notice of dispute to the pay equity commissioner so that the problem can be solved. Personally, I believe that it is always better to encourage discussions rather than to impose too rigid a system.

I would also like to reassure my NDP colleague about her second amendment. Although the bill deals separately with employees' complaints and bargaining agents' complaints, nothing prevents a bargaining agent from supporting employees in their complaint process. It is perfectly possible. I don't think that my colleague's reasoning holds water. But, as I said, people of good will can disagree.

Thank you, Mr. Chair.

[The Chair, Liberal, Wayne Easter]

Thank you, Mr. Fergus.

Ms. Malcolmson.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Thank you, Chair.

With great respect to the member opposite, it's impossible to get a big piece of legislation like this right. I know the government inside has been negotiating it for years and working with labour, but I was certainly getting calls all summer from labour partners and from members of the coalition asking what was happening, as they weren't hearing anything back and didn't know what was proposed. I had hoped that the reason this had been delayed three years was that inside work was happening. In fact, there was some confusion. Maybe it was not as close work with the people who have the expertise, the labour activists who have been doing this work all this time.

That aside, it's impossible to bring such a big and complicated piece of legislation forward—not least because it's buried within a 900-page bill—in a very short time and get it right. I know this from 12 years in local government. We count on the input of our constituents and our partners to steer us off the rocks and to give us another perspective. This government has made this commitment and has such a strong mandate to work in a different way—to work collaboratively—and so I promise you....

I'm honestly discouraged and surprised that the government members so far in this debate this morning haven't found a single piece of NGO or labour advice or amendments worthy of taking up.

I'm one member here. You have tremendous resources. You have a lot of good minds there. It isn't possible for you to have dug in and found some pieces that you wanted to move yourself, as members, let alone leaving it to me. I do say this in the spirit of wanting to get this right. You have great advice and you would not have had labour submissions with the detail that is here—hundreds of pages of testimony and evidence—if they didn't think it was worth trying to get these changes noted on the record.

I'll just leave it there. The advice stands. This is based on the work of the people who have been in the trenches. I am surprised and discouraged that none of the advice so far has been found worthy of being taken forward. It would have improved the act.

[The Chair, Liberal, Wayne Easter]

I'll call the vote on NDP-32.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Chair, can I ask please for a recorded vote?

(Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])

[The Chair, Liberal, Wayne Easter]

We are turning now to NDP-33.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Thank you, Chair.

This is an amendment proposed by the Equal Pay Coalition. It represents 44 different associations, businesses, professional women, unionized women, non-union women and community groups across the province of Ontario.

Ontario has had pay equity legislation for a long time. My late aunt Kim Malcolmson was an early worker in the Ontario Pay Equity Commission. Honestly, when I was in high school, she was my feminist aunt. I found her a bit radical at the time. I was so honoured that she was with me when I was sworn in as a member of Parliament. I gave her shout-outs throughout a lot of our pay equity debates. She was so proud that I was the voice that the NDP chose to advance our first opposition day motion. We were so glad to have had the government's support on that.

She died just about three months ago, just a couple of days after Patrick Brown stepped down. Actually, as a long-time CCF supporter and New Democrat, she left on a high note.

That said, the Ontario experience is very important in this work. I know that you heard from Fay Faraday and Jan Borowy who have extensive experience. They flagged that there were some fundamental pieces that needed to change in this legislation. They said in their testimony—and we've already lost this vote, but I'll say it again—that making fundamental human rights subject to the diverse needs of employers is non-negotiable. However, it remains because I lost the vote on that amendment.

Here is another one of their pieces of advice. This is in paragraph 103 of their submission. Their proposal is that deleting lines 2 to 5 on page 431 of Bill C-86 is the remedy. The rationale is that, in their own words, “Women should not be blocked from taking broad claims of systemic gender discrimination, inclusive of equal value claims, to the CHRA”, the Canadian Human Rights Act. They want this clause of the bill to be deleted. They say that women should be able to rely on section 7 and section 10 of the Canadian Human Rights Act instead when making equal pay for equal value claims.

I'll take you back to their opening testimony to committee. They said:

...there are a number of provisions you've included in the legislation that have already been found to be unconstitutional.

...the legislation actually gives less protection in some areas than the Canadian Human Rights Act currently does. For example, it has less protection in the compensation for part-time and temporary workers than currently exists....

Also the pay equity act does not close all the different gaps in compensation that are discriminatory.

They also said:

You've also included provisions that are unconstitutional and that the Supreme Court just struck down in May of this year, dealing with blocking retroactive pay for gaps that have been identified.

Mr. Chair, I propose our amendment, NDP-33, which is that Bill C-86, in clause 416, be amended by deleting lines 2 to 5 on page 431. This is the advice of the Equal Pay Coalition.

[The Chair, Liberal, Wayne Easter]

Thank you.

Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much, Mr. Chair.

I would like to ask our officials a question about this motion.

As I understand it, if an employer is already subject to federal and provincial legislation, the Governor in Council can allow that employer to give priority to provincial provisions.

Have I understood the objective of these provisions correctly?