Finance Committee on Nov. 20th, 2018

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

That is what this amendment is intended to repair.

[The Chair, Liberal, Wayne Easter]

Are we ready for the question?

(Amendment negatived [See Minutes of Proceedings])

We turn, then, to NDP-22.

Ms. Malcolmson.

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

This is a recommendation from CUPE, who appeared before the committee. It's on pay transparency.

This is another hole that the labour partners in good faith are trying to repair. CUPE's submission to the committee outlined how crucial transparency is to pay equity processes. They said in their experience, transparency and clear communication with employees is necessary for pay equity processes to function effectively. Given the importance of pay transparency and the government's commitment to this concept in the 2018 federal budget, CUPE submitted that proposed subsections 23(1) and 24(1) be amended.

Proposed subsection 23(1) fails to ensure that the employer will be obligated to provide the committee with sufficient and meaningful information to eliminate pay discrimination. CUPE submitted that the requirement to provide only that “information in the employer's possession that the committee considers necessary for the establishment of the pay equity plan” is unnecessarily broad, and that the phrase “in the employer's possession” would appear to insulate the employer from requesting or compiling information from other sources. They submitted that this clause conflicts with the requirement in proposed subsection 23(2) on employee and bargaining agents to provide “any information within their knowledge and control”.

They also were concerned that proposed subsection 24(1) requires that the committee keep all information confidential, which fails to ensure transparency in the establishment of a pay equity plan and hinders trust in the process.

The two amendments that we propose, as written by CUPE, are to amend proposed subsection 23(1) so that it would read, “An employer must provide the pay equity committee with any information in the employer's knowledge and control that the committee considers necessary for the establishment of the pay equity plan.”

Secondly, they recommend removing proposed section 24 from the act entirely.

Thank you, Chair.

[The Chair, Liberal, Wayne Easter]

Mr. Sorbara.

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

Thank you, Mr. Chair.

Thank you, Ms. Malcolmson, for bringing forward the amendment.

I'd like to go back to the departmental experts on this. Can you clarify for me the difference between “control” and “possession”, and also the importance of confidentiality in terms of how the pay equity committees would function?

[Lori Straznicky]

Yes. In terms of the difference between possession and control, the way that possession is used here, employers must provide information in their possession. This creates an objective standard that allows for employers to assess what material they would be required to provide to the pay equity committee. It would cover, for example, compensation information, benefit information and employee numbers, which they themselves would possess.

Adding the concept of control to the concept of possession would be unnecessary, as there's an argument that the term “possession” includes the concept of control.

As for keeping all materials confidential by the operation of proposed section 24, that section provides important safeguards for employees' personal information as well as employers' business information that is identified by members of the committee. It could include, for example, information about individual performance, bonuses and commission payments.

The confidentiality of that information is really essential to establishing an effective pay equity process so that employers, employees and bargaining agents all feel that they can confidently share information, and that it will not be disclosed or used for other purposes beyond the pay equity exercise.

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

Thank you for that.

With regard to the amendment that was put forward on clause 416, in part (a), where it says, “any information in the employer's possession or control”, is the word “any” in the existing legislation?

[Lori Straznicky]

Yes.

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

So all information will be available to a pay equity committee.

[Lori Straznicky]

Yes.

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

The legislation actually sets forth what a pay equity committee would require in order to do its job.

[Lori Straznicky]

Yes.

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

Okay, thank you.

With that, Mr. Chair, I will be voting against Ms. Malcolmson's amendment.

[The Chair, Liberal, Wayne Easter]

Is there any further discussion on NDP-22?

Ms. Malcolmson.

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

I'll just correct my colleague. He is in fact voting against CUPE's amendment.

[The Chair, Liberal, Wayne Easter]

All those in favour of NDP-22?

(Amendment negatived [See Minutes of Proceedings])

We move to NDP-23.

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

Thank you, Chair.

This is another amendment proposed by the coalition. Their submission to the committee was that proposed subsection 41(2) improperly allows an employer or a pay equity committee to determine that the value of work has already been determined. That gives an employer, particularly in a non-unionized workplace, unilateral power to shelter what it has done to date, without the requirement to properly evaluate women's work.

Their submission was that employers will want to rely on existing pay equity or job evaluation plans. However, one of the significant issues identified in the 2004 task force was the exemption in the Quebec pay equity legislation for pay relativity plans, which enabled employers to file prior internal pay reviews, or plans in the process of development, with the commission for deemed approval.

In that case, unions had little or no involvement with the assessment of the filed plans, and subsequently, the pay equity, pay relativity provision of the Quebec act was found to be unconstitutional. The task force in 2004 recommended that where the Canadian Human Rights Tribunal, the Federal Court or the Supreme Court of Canada had rendered a decision or a disposition of an issue, the disposition be final and binding.

The submission of the coalition was that no employer may rely on an existing or alleged pay equity plan without full pay transparency on whether the plan is compliant with this new federal legislation.

Proposed subsection 41(2) raises significant concerns in light of the issue of the employer's unilateral control of the pay equity processes identified above. That is their explanation. Removing the clause would not recreate the error identified in the Quebec legislation that had been found to be unconstitutional.

Thank you, Chair.

[The Chair, Liberal, Wayne Easter]

Mr. Fergus.

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

Thank you very much, Mr. Chair.

I have listened to the arguments that Ms. Malcolmson used to defend her amendment which, as I understand it, is intended to delete lines 19 to 26 on page 360 of the bill. My question is for the officials.

Ms. Straznicky, if those lines are deleted from the bill, am I right in thinking that it will force employers who have already established a gender-neutral evaluation plan for their work to start that exercise over again in order to design a universal classification system as a gold standard?

[Lori Straznicky]

I would say that, if in those public sector workplaces where there has been a universal classification system like this provision contemplates, so long as it has met two requirements, that it's assessing the skills, effort, responsibility and working conditions and that it's been done in a gender-neutral way, then yes, removing this provision would have those employers duplicate their efforts.

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

Okay, thank you for that answer.

For those reasons, I am going to vote against Ms. Malcolmson's amendment.

[The Chair, Liberal, Wayne Easter]

Ms. Malcolmson, go ahead.

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

Thank you.

The submission of the lawyers who have been adjudicating these disputes in the absence of federal legislation for decades indicates that their strong advice, based on challenges to the Quebec act, was that, for the purpose of transparency, you just cannot transfer automatically a pay equity plan that had already been in place. For transparency reasons, it would need to be re-evaluated and found to be meeting the same standard.

It's not that it would require the employer to go back and redo the work that had been done before, but that it would not be an automatic rubber stamp. It could not be simply transferred without the review and the due process that would be ideal. Again, they think that making this amendment will save court costs and will give both employers and employees confidence to be able to move forward without having to re-adjudicate these things, as has happened in the provinces.

It doesn't have to redo the work, but the review and the transparency of it before it is accepted from an old standard into this new standard is the remedy that they strongly recommended.

[The Chair, Liberal, Wayne Easter]

Is there any further discussion?

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

Once again, I would like to hear the opinion of the officials on what Ms. Malcolmson has just said.

Is it your opinion that questions on this provision would result in more recourse to the courts, or is this amendment to the legislation in fact appropriate?