Finance Committee on Nov. 20th, 2018

[The Chair, Liberal, Wayne Easter]

Go ahead, Ms. Malcolmson.

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

Thank you, Chair.

With respect to my Liberal colleague's comments, he is rebutting head-on the advice we got from the Canadian Labour Congress, the pay equity coalition, the Teamsters and CUPE. These are organizations which, since well before 2004, have been working with pay equity legislation. For example, in Ontario, which has legislated this since the eighties, they have extensive experience. In terms of Jan Borowy and Fay Faraday, you won't find human rights lawyers who have worked harder. They have argued the case law that has gotten us to this place.

The fact that postal workers fought the courts for 30 years because of the absence of federal pay equity legislation means we have significant case law. This is what the commitment was of the first Prime Minister Trudeau 42 years ago: to legislate pay equity. The fact that this has not been proactive means that it has been fought in the courts again and again. This is why it is a good initiative of this government to finally legislate proactive pay equity legislation.

To have the member say that he's going to vote down these amendments, which are arguably the most important in this whole finance committee's deliberation.... If you want this legislation to work for women and not have it revert back to the courts again and again, why on earth would you qualify the right of women to receive equal pay for work of equal value?

We have had every one of these labour witnesses say that you need to make this change. The witnesses said that this language “undermines” the intentions of the act, which is to address systemic gender wage discrimination. It undermines the human right of equal pay for equal work of equal value. This was their testimony. They said the task force on pay equity in 2004 recommended that the government “enact new stand-alone, proactive pay equity legislation in order that Canada can more effectively meet its international obligations and domestic commitments, and that such legislation be characterized as human rights legislation”.

If you believe in that recommendation, you cannot qualify the human rights of women to receive equal pay by referring to “the diverse needs of employers”, when the diverse needs of employers are addressed in another section of the legislation that does not undermine the human rights of women.

[The Chair, Liberal, Wayne Easter]

Mr. Sorbara.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Thank you again, Ms. Malcolmson, for that insight.

This amendment deals with the purpose clause. The purpose clause only sets out the objectives of the legislation and does not create the legally binding rights or obligations set forth within the legislation. The actual substantive rights flow from the actual provisions of the statute. Thus, as I said in my earlier comments, the reference to the diverse needs of employers does not create a loophole for employers.

I just want to make sure that I explain myself clearly, because this is important legislation. I completely agree with you. I have two daughters at home. My wife is a full-time mother but is also full-time in the labour force. Actually, I think she's more than a full-time mother, because I find myself here all the time.

With that, this legislation is very important for me and for our government. Obviously, it's the first time it's been introduced, although it was talked about for many decades. We need to be proud of it. As I said, the purpose clause only sets out the objectives of the legislation and does not create legally binding rights or obligations. These flow from the actual provisions of the statute. Thus, those four words—“diverse needs of employers”—do not create any sort of loophole for employers.

Thank you.

[The Chair, Liberal, Wayne Easter]

Okay, Ms. Malcolmson. Again, we have another couple of witnesses from PSPC coming in, I believe, so keep that in mind. Departmental officials are here as well, if members have questions for them.

Go ahead, Ms. Malcolmson.

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

Thank you, Mr. Chair.

If the Liberal committee members' intention is to undermine the human rights of women, then you will vote “no” to my amendment, but, if you agree with your labour partners, who you repeatedly say you are here to stand with, and if you take the advice of the activists who have gotten this issue on this agenda, then you will vote “yes”. You will not qualify the human rights of women against the rights of employers.

Of course the diverse needs of employers will be accommodated, and they are, and you had expert testimony that said that it will. There's nothing that the member is saying that in any way addresses the extensive testimony you had from CUPE, the Canadian Labour Congress, the Teamsters and the pay equity coalition. They said in their testimony that as part of the purpose section of the act, the requirement for pay equity must clearly and directly be spelled out in the body of the act to ensure the obligations and responsibilities are known to the parties.

The responsibility in this legislation is to pay women equal pay for work of equal value and to pay everybody equal pay for work of equal value. It is not to qualify that.

This is unprecedented. You have very strong testimony against this. Nothing the member has offered rebuts the expert testimony this committee received. It would be a serious betrayal of your labour and your feminist partners if you vote no.

[The Chair, Liberal, Wayne Easter]

All right. Are we ready for the question?

Do you want a recorded vote?

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

Yes, please.

(Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])

[The Chair, Liberal, Wayne Easter]

We are on NDP-15.

Ms. Malcolmson.

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

I believe, Mr. Chair, that NDP-15 would not be addressed, since NDP-14 was lost. They have some duplication.

[The Chair, Liberal, Wayne Easter]

You can move it if you want. It's not automatically lost. If NDP-14 were adopted, you couldn't move number NDP-15, but we're the opposite way.

Go ahead.

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

Thank you very much, Mr. Chair. I appreciate it.

NDP-15 is again based on the advice from every labour partner and from the pay equity coalition. This is more narrow. This is just half of the argument I made in NDP-14.

The purpose clause, again, contains a qualifying phrase:

while taking into account the diverse needs of employers

The amendment, if you agree with this, would delete that qualification. There was testimony from every labour partner that said that there's no reference to the diverse needs of employers in the Canadian Human Rights Act, and that qualification of that, undermining it, is unforeseen.

The purpose clause, as drafted, does not recognize Canada's commitment to human rights and its international obligations. The current language derogates from human rights so that the fundamental human right of equal pay for work of equal value is screened through the needs of employers, and that language significantly limits fundamental human rights, as all obligations and rights will have to go through the needs of employers.

Finally, if the intention of the language was to recognize and acknowledge that there are diverse types of employers with different realities and structures in federal jurisdiction, that is accommodated, specifically, deeper into the legislation in the operational sections of the act.

Thank you, Mr. Chair.

[The Chair, Liberal, Wayne Easter]

Is there any further discussion?

Mr. Sorbara.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Thank you, Mr. Chair.

Again, thank you, Ms. Malcolmson, for your comments in moving this amendment.

I'll just quickly refer to my earlier comments on the prior NDP amendment, and those will stand for this amendment.

Thank you, Chair.

[The Chair, Liberal, Wayne Easter]

Okay, are there any others in this discussion?

(Amendment negatived [See Minutes of Proceedings])

We're on amendment NDP-16.

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

Thank you, Chair.

This is a recommendation that came from testimony from the Teamsters union. They consider this to be one of the most important amendments to division 14 of this bill. This is again talking about the diverse needs of employers. They recommend that this section be added, so it would read, “No employer, employee organization, trade union or member of a pay equity committee may” in the exercise of their rights or duties under the act “act in bad faith or in an arbitrary or discriminatory manner or [exhibit] gross negligence” with regard to employees.

I think the recommendation stands. All committee members heard the Teamsters' testimony. Again, these are people who have been working with the legislation in other provinces. They're bringing their best experience to bear and hoping to have the experience of the provincial legislation influence what will be very important federal pay equity legislation.

[The Chair, Liberal, Wayne Easter]

Mr. Sorbara.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Thank you again, Mr. Chair.

Thank you, Ms. Malcolmson, for raising this amendment. I would like to add that I will not be supporting the amendment, but—and it's a big “but”—that's because what's contained in the amendment, these provisions, already exists elsewhere in the proposed legislation.

Employees, bargaining agents and employers already have access to recourse under the act for alleged acts of bad faith or arbitrary or discriminatory behaviour on the part of a bargaining agent or employer, under proposed subsections 149(2), 150(3) and 151(2).

[The Chair, Liberal, Wayne Easter]

Go ahead, Ms. Malcolmson.

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

I'll reiterate that the strong recommendation of the labour partners who came to this testimony was that they wanted to see that responsibility set right up front in the purpose clause. It is the strong recommendation of the 2004 pay equity task force that the responsibilities of everybody come right up front so that there's no question about interpretation when inevitably this does end up back in court.

An echoing of some of the responsibilities laid out in the detailed parts of the legislation is important, but the request was that this come right up in the purpose clause. That's always the interpretation through which any future judge would view the legislation, whether it had been adhered to or not.

[The Chair, Liberal, Wayne Easter]

Are we ready for the question? I remind members again that there are folks from the departments here if you want any clarification on their understanding of the various clauses.

(Amendment negatived [See Minutes of Proceedings])

We're on amendment LIB-5. Who's moving that?

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

Mr. Chair, I made this amendment in order to clarify that the provisions of the bill are going to apply to crown corporations. That was not clear in the original wording.

I hope that this will get the approval of all my colleagues around this table.

[The Chair, Liberal, Wayne Easter]

Is there any further discussion on this point?

Mr. Kmiec.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Can I have the officials explain exactly who this would impact?

[The Chair, Liberal, Wayne Easter]

Who wants to go?

Go ahead, Ms. Straznicky.