Good afternoon and thank you for inviting me to appear.
I wasn't sure what would be most useful to you. I thought I would talk briefly about the background of the task force I was a member of, which reported in 2004, then talk a bit about the recommendations our task force made in our report, and then talk a bit about what the situation since then has been.
In late 1999, the then minister of justice, Anne McLellan, and the labour program announced there would be a review of section 11 of the Canadian Human Rights Act, which is the pay equity provision.
If you look at section 11, you will find it is typical of a lot of the human rights legislation that was passed in the mid-1970s. That was a time when many of the provincial human rights codes were adopted as well as the Canadian Human Rights Act. In that generation of legislation, there was an assumption that if you stated fairly open-ended human rights principles in legislation, then people would figure out how to comply with those requirements, that they would perceive there was discrimination taking place, and they would take steps to correct that.
In the years after that, the years between the mid-1970s and the late 1990s, there was certainly a huge amount of jurisprudence about discrimination once the charter was in place. There was, I think you would have to say, progress made in terms of public awareness of discrimination and a lot of high-profile cases.
One of the discoveries was that a lot of discrimination and a lot of the roots of discrimination are much more subtle, much more systemic than people recognized in the mid-1970s when they were passing the legislation.
The basic format of human rights legislation was a complaint system. If you perceived you were being discriminated against, you would go to a human rights commission and make a complaint about that discrimination. There would be a variety of responses. There might be an educational response. There might be a mediation response. There might be an adjudication response. It was basically a system that depended on an individual, or in some cases an organization, making a complaint to a human rights commission.
That system proved particularly unsuited for pay equity complaints. There are a number of reasons, but part of it is this. The basic proposition underlying pay equity is pretty simple: if an employer has decided the value of some component of work which is performed by men is x, then that should be the value for the same component of work when it's performed by women. That is a fairly straightforward proposition. Unfortunately, it turns out that in order to assess whether the components are being treated equally, and in order to correct any inequity in the pay system, there really are many very technical things that have to be done.
As my colleague, Marie-Thérèse, pointed out, for individuals to take on a pay equity complaint really turned out to be unrealistic. Individuals really did not have the equipment to raise a pay equity complaint.
The announcement that was made in 1999 has to be seen in the context of a number of high-profile cases of very lengthy, very complicated, very expensive, and very unsatisfactory litigations in which a number of public federally regulated employers had been involved.
This litigation had gone on in some cases for 13, 15, or, in one case, 20 years. Some of that time was spent on a lot of procedural arguments in front of the courts about exactly how the system was supposed to work, but much of it was taken up in hearings before the Canadian Human Rights Tribunal, some of which were more than 300 days long, over a period of a decade during which there was much evidence from experts about different methodologies for assessing the pay systems.
There is not much common ground at all times between employers and their employee representatives, but really everyone agreed that this could not go on. That is, everyone thought that the complaint-based system under the Canadian Human Rights Act was not working well.
The task force was thus set up. We began work in 2000. We did a lot of public consultation; we had round tables with employees and groups of employers and groups of employees and employee representative organizations; we commissioned research; we had our own research staff. We looked into the whole pay equity situation pretty thoroughly and came up with a fairly lengthy report.
To give you just the basic recommendations that we made, the main one, as has already been suggested, was that the system should change from a complaint basis to a proactive basis; that is, that it be incumbent on each employer to examine its own pay practices, identify possible discrimination, and decide on a plan to rectify it, and furthermore to maintain the plan over time so that inequities would not reoccur.
Another important aspect of the system that we recommended is that there should be a high degree of employee involvement. A good analogy here is with health and safety legislation and the way it manifests itself in the workplace. There are health and safety committees that have representatives of employees and representatives of employers, and they deal with health and safety issues away from the usual labour relations system.
That's not to say that unions have not been critical to any advances made on the pay equity front, because they certainly have been, but our conclusion was that it would be a good idea if this area were divorced from the regular collective bargaining system.
Another of our proposals was that there should be specialized stand-alone oversight agencies under pay equity legislation. The Canadian Human Rights Tribunal had clearly made huge efforts to hear and determine the complaints that had been brought before them, but they dealt with all kinds of discriminatory practices and allegations of discrimination and were not experts at pay equity. Pay equity, as I said earlier, really has some technical aspects that require that people have training, that they have an understanding of the issues, that they have an understanding of the techniques for comparison of jobs, and that they be able to assess a pay system in some detail. We recommended a series of oversight agencies, a kind of parallel structure to many human rights commissions; that is, agencies providing for both an educational aspect and an adjudicative aspect, but specialized and limited to dealing with pay equity.