Pay Equity Committee on April 18th, 2016

[Barbara Byers]

No, but—

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

I'd like to move on, to go back. There was one element that Ms. Rochon-Perras has mentioned twice now and that I don't think anyone has addressed yet: the marketplace clause.

Could you give us a little more background as to what this is and why it's a concern to your group?

[Stéphanie Rochon-Perras]

Do you mean market forces?

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Pardon me; yes, I mean the market forces. Excuse me.

[Stéphanie Rochon-Perras]

Market forces is a broad term. Historically, market forces have been influenced by factors such as occupational segregation of work and gender-biased stereotypes. While labour shortages can be and have been, under the Equal Wages Guidelines and the Canadian Human Rights Act, considered in determining whether a wage gap is discriminatory, other factors that influence labour markets should not be taken into account in the valuation of the work.

“Market forces”, with this broad meaning, are not immune to the occupational segregation of work and these gender-based stereotypes, so we can't allow market forces to dictate the value of the work that's being performed.

[The Chair, Liberal, Anita Vandenbeld]

Unfortunately, that's time. Sorry.

We'll go to Ms. Dzerowicz for five minutes.

[Julie Dzerowicz, Liberal, Davenport, ON]

Great. I'm going to share my time with Ms. Nassif.

I wanted to say something to Ms. Byers. You've mentioned this point a couple of times, Ms. Byers, around how many women for so long haven't been paid equally and the impact this has had, not only on our economy but on their lives. I want to let you know that I'm also appalled by that and the fact that it was in 1977 that we made pay equity a human right in this country, and it's taken us so long to do nothing. I'm delighted to get a chance to hopefully put a nail in the coffin.

My question is to you and to Ms. Smallman. What do you see as the role or the roles of unions in proactive pay equity legislation at the federal level? What's the role specifically you would see unions playing? I know we've been dancing around a number of different things, but if you could tell me what you believe from your perspective.

[Barbara Byers]

In any workplace that deals with the issues of wage disparities, unions have to be equal partners in those discussions of the evaluations that go on in terms of occupations and how jobs are evaluated. They have to be part of the discussions as well on how we're going to achieve the pay equity and how you get to that process. There certainly have been models used in other provinces and in other workplaces where wages were raised by a certain amount and set aside away from collective bargaining. Sometimes what happens is, if you leave it over there, then some of the same forces that come into play have come into play all along. People think, oh well, if this group is getting a wage increase, then I'm losing out on a wage increase. That's why we've kept them separate in terms of bargaining.

There are going to be people who are active in the workplace and who can talk about the whole education factor and the whole evaluation factor. People have to feel confident their jobs are being evaluated and valued in ways that are different from the evaluation and valuing that has gone on up to this point, because it hasn't been working overall.

Unions are equal partners in these discussions, and that means there will be, from time to time, unions having to go out to explain to their own members why this group is getting a boost and why this group is getting the same wage increase that everybody else got. There are all those pieces. If unions aren't there, then you're going to have a pay equity plan that isn't going to work because people are going to look at it and say, it's employer-driven and it's still not fair because employers haven't done a good job about a fair job evaluation all along.

[Eva Nassif, Liberal, Vimy, QC]

Under a proactive framework, federal or provincial, would non-unionized or non-public sector employees be at a disadvantage?

[Vicky Smallman]

The task force report is detailed about that as well, in that non-unionized employees also need some representation. It allows for the participation in these pay equity committees of other employee groups besides unions.

[Eva Nassif, Liberal, Vimy, QC]

Okay.

Another question, what are the difficulties with enforcing private sector compliance?

[Vicky Smallman]

That's a good question. I think that it depends on buy-in. With good legislation we want to make sure the public sector and private sector employers and the unions are all buying into the process. That's going to be, I guess, the next debate once we have some legislation on the table.

With compliance, you know you're going to have to have this, and this is the problem in Ontario. You need to have good maintenance and enforcement, and that was one of the things they did. Others today might correct me or elaborate, but in Quebec when they tinkered with the model in 2009, it was to address some of these issues in maintenance and enforcement. You do need to make sure it's built into the model that there are systems for maintaining pay equity, enforcing, having a tribunal for disputes, and so on.

[The Chair, Liberal, Anita Vandenbeld]

Unfortunately, that's the end of the time.

For the final questions, we will go to Ms. Benson, for three minutes.

[Sheri Benson, NDP, Saskatoon West, SK]

Thank you.

To Stéphanie and Dany, you've had an experience that other groups haven't had necessarily, trying to use the current and the transitional model around pay equity. If you wanted to leave this committee with one comment on what's most important about that experience and what you'd like us to remember.... I'll ask the same of Barb and Vicky. It has to be quick—one thing that you want to leave us with that might be the most important thing from your presentation.

Stéphanie.

[Stéphanie Rochon-Perras]

We need to create a framework that allows the parties to resolve their disagreements voluntarily through means that really empower the parties to be able to collaborate through conciliation, through facilitated discussion, perhaps combine mediation and adjudication. We really need a model that provides for those opportunities to take place, but also to facilitate and to have the funding and investment for that to take place.

[Barbara Byers]

Our one comment is don't reinvent the wheel. Don't see Groundhog Day one more time. Don't have déjà vu all over again. Implement the task force recommendations. The task force was the most comprehensive. We know that. I was the worker representative from Canada for 12 years on the International Labour Organization. It is seen as the most comprehensive study on pay equity anywhere in the world. We should move ahead.

Remember that every day you delay is justice denied, economically, for a lot of people out there. It makes a difference from the day they enter the workplace, and the things they try to accomplish for themselves and their families, and the day they retire. If you could talk to some of the women who've been affected when there has been a pay equity increase, then you would see it even more. Don't delay, because if you remember the Bell Canada case, almost 16% of the women had died. Granted, their estates got the money, but I think their estates would have felt a lot better if those women had gotten the money and had some dignity in their work lives and in their retirement lives.

[Sheri Benson, NDP, Saskatoon West, SK]

I'm done. Thank you.

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much.

Thank you to our witnesses.

We're going to suspend for a couple of minutes while we change the panels. Thank you.

[The Chair, Liberal, Anita Vandenbeld]

Thank you all very much, and thank you very much to our third panel. It's a fairly large panel, so I would ask that each organization limit its comments to seven minutes.

We have with us, from the Canadian Union of Public Employees, Annick Desjardins; from the Professional Institute of the Public Service of Canada, Debi Daviau; from the Public Service Alliance of Canada, Robyn Benson and Helen Berry; and from the United Food and Commercial Workers Union of Canada, Debora De Angelis.

We'll start with the Canadian Union of Public Employees. Annick, you have seven minutes.

[Annick Desjardins, Executive Assistant, National President's Office, Canadian Union of Public Employees]

Thank you.

I'll be making my short presentation in French, but I'll be ready to take your questions in English and answer as best I can in my second language. I'll try to be as precise as possible.

Thank you for the invitation and for agreeing to hear from CUPE.

My name is Annick Desjardins. I am the Executive Assistant of CUPE's National President's Office. I spent 13 years as a coordinator at the human rights department in our Quebec regional office. So is truly in my capacity as an expert in charge of wage equity litigation files that I have come here to try to provide some details and clarifications on our experience at CUPE, especially with the Quebec legislation.

On a national level, CUPE represents 635,000 members in Canada who are working in public services, but also at private companies. More than 18,000 of our members are in federally regulated industries, including about 10,000 in the airline industry. Aside from the airline industry at CUPE, the majority of our members working in federally regulated businesses are located in Quebec. That province has a statute on wage equity, but the legislation does not apply to those individuals because their businesses come under federal jurisdiction. Therefore, only this House has the jurisdiction to address their rights to wage equity.

As an organization, CUPE has extensive experience in pay equity, as well as in employment evaluation, which is a key element of any fair pay equity exercise. CUPE is familiar with both complaint-based systems and proactive systems, especially those of Ontario and Quebec, which apply to employers beyond the public sector. Of course, we have to mention our wage discrimination complaint under the Canadian Human Rights Act. The complaint pertained to Air Canada's flight attendants. Despite many years before the courts on preliminary issues, the complaint fizzled out when the commission refused to take the matter before the Canadian Human Rights Tribunal.

Therefore, like the commission we heard from earlier, the CLC and all the stakeholders you have heard from this evening, we absolutely feel that it is high time to adopt the recommendations of the federal pay equity task force. The task force carried out some absolutely amazing consultations across the country, met with experts and issued sound recommendations based on experience. Our experience at CUPE is very much in line with those recommendations.

As a prosecutor from Quebec, I can give you more details about our experiences with the Quebec legislation. I could answer any questions you may have on the issue. I handled complaint cases under the system that was in place before a proactive piece of legislation was adopted. So I am very familiar with both systems. I have also pursued cases under the Canadian Human Rights Act in federally regulated businesses.

Since the Quebec legislation came into force, CUPE has established about 300 pay equity programs in Quebec. We have a similar experience in Ontario, with about 600 pay equity programs. That work was done with employers on joint committees. I can tell you that, in Quebec, all those exercises have at least been useful because they have led to certain adjustments to female jobs.

I would like to say a quick word about a slightly more practical perspective on the proactive model versus the complaint-based model, which we could call an adversarial system. To make sure you understand why a proactive system is preferable—since you asked questions about this and you received some good answers—I will provide you with a concrete perspective. To achieve pay equity and bridge discriminatory wage gaps, a company's female and male jobs have to be compared on an objective basis. So jobs have to be evaluated using a neutral tool, which we generally refer to as “an evaluation plan”.

The evaluation plan is used to assign a score or a rating. It is basically a point value associated with jobs and not the individuals doing the jobs. The rating is tied to the actual job and not to its specific tasks.

Those jobs are evaluated based on objective factors and sub-factors. Among the major categories of factors considered are qualifications, responsibilities, efforts and work conditions. The evaluation itself still remains subjective, and the idea is to determine where the job should fall at each level of each factor.

In a proactive model, this is determined by consensus by a committee of employer and employee representatives. We share the information on tasks identified by the employer and well-known to employees because they are the ones doing the work. In fact, we come to an agreement on the value of jobs.

In a litigation model or a complaint-based model, the evaluation must be proven according to the rules of evidence in civil actions through testimony and through the cross-examination of ordinary witnesses familiar with the work, as well as expert witnesses who provide an evaluation based on their scientific knowledge of the issue. The content of tasks and the level to be assigned to each factor and sub-factor are the subject of endless testimony and cross-examination. That is why a decision may take 15 or even 30 years.

Once the jobs have been evaluated, wages and value have to be compared using reliable statistical methods. In a proactive model, the methods are laid out in the legislation, and they're simply applied by the committee. In a complaint-based model, the matter must come before the courts—with experts, second opinions, testimony and cross-examinations. Experts contradict each other based on their clients' interests. That is why the process is endless.

The complaint-based system is inefficient. We all want a proactive model to be adopted to put an end to this litigation parade that is costly for everyone and leads nowhere.

The key elements of a proactive system are part of the task force's recommendations, but I want to emphasize a few of them in particular. The coverage must be as broad as possible. In addition, the process must have rigorous oversight because, the more that is left to the discretion of the parties, the more disagreements there will be within the committee, and that may also lead to litigation.

I am being told that my time is up.

Thank you. I am ready to answer your questions.

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much, Ms. Desjardins.

Ms. Daviau, you have the floor for seven minutes.

[Debi Daviau, President, Professional Institute of the Public Service of Canada]

Thank you very much to the committee for the opportunity to present today on an issue that is extremely important to my members.

The Professional Institute of the Public Service of Canada represents 57,000 professionals across Canada's public sector, over 40% of whom are women, and the vast majority of whom work in the federal public service.

The right of women to equal pay for work of equal value with men has been reinforced by Canada's ratification of the Convention on the Elimination of All Forms of Discrimination against Women and other international human rights instruments as well as by the Canadian Human Rights Act currently.

For nearly a decade, however, there's been a void in pay equity in the federal public service amongst its relatively higher percentage of unionized and increasingly female workforce. In fact, my very presence here today as president of a union of professionals in the federal public sector evidences this drastic increase in women in these professional categories. This translates for us into an urgent need for pay equity legislation that will provide true, proactive, and timely means to implement pay equity and operate in a manner consistent with, amongst other things, existing human rights obligations, lessons learned from past experience, and pay equity jurisprudence.

I refer back again to the task force report of 2004 and facilitation of effective union participation. The institute maintains that the Public Sector Equitable Compensation Act, PSECA, violates the fundamental equality right of women in the federal public sector to be free from wage discrimination in the payment of their work and it perpetuates ongoing sex-based wage discrimination in the federal public sector.

This act fundamentally erodes the substantive right of public sector women to be free from sex-based wage discrimination, denies such women the ability to effectively implement and enforce even these eroded substantive rights, and imposes remedial restrictions that deny such women the right to have sex-based wage discrimination fully eradicated and prevented. In fact, PSECA is so fundamentally flawed, it cannot constitutionally be saved by any enacted regulations. Put simply, pay equity is a right, not an interest.

Individual complaints are not the best way to achieve pay equity within federal jurisdictions. Since the problem is found in the pay system, it makes sense that the parties to the collective agreement review the practices used to establish and implement pay. These parties must be vested with the responsibility to establish pay equity through a separate process. The institute cautions against measures that would tie the settlements of pay equity to collective bargaining timelines and compensation envelopes as included in PSECA. This would contribute to either delays in the setting of terms and conditions of employment through collective bargaining, inadequate attention being paid to the equitable compensation process, or more likely both. Putting pay equity in a separate process from collective bargaining allows both processes to move forward on a timely basis and to not compromise each other.

Any proactive legislation has to include and recognize clear roles, rights, and the responsibility of unions. Unions must be a party to agreements that establish pay equity. In the event that the parties are unable to reach pay equity settlements, either party should have the right to refer the dispute to an independent tribunal with pay equity expertise as well as a mechanism to help the parties resolve their disputes informally.

In conjunction with the Public Service Labour Relations Act and the Financial Administration Act, the PSECA restricts unions and employees from challenging key provisions that directly set the wage rate of employees, primarily the classification system. The federal job classification system will be the biggest challenge to achieving pay equity, keeping in mind that, for my substantive group, the informatics workers in government, that classification standard was established before there were personal computers. So you can understand where the barriers in that system may be.

The multiple plans for multiple occupation groups that still exist are believed to encompass systematic discrimination and do not allow for easy comparison of the value of female work to male work. Past experience from the joint union management initiative, the universal job evaluation plan, and the universal classification standard as well as—I have mentioned—the 2004 federal pay equity review task force report have provided valuable lessons about the implementation of pay equity. These lessons should be considered in any future undertaking.

In closing, I would like to state that it is the institute's view that a proactive federal pay equity regime is a critical, albeit overdue, step in Canada's progress towards a fair and functional labour sector. The PSECA violates the charter and constitutes an unwarranted assault on public service unions. It should be repealed and replaced with new legislation.

The institute is ready to work jointly with the employer in ensuring that the work done by women and men is valued fairly with a view to ending pay discrimination and bringing Canada in line with existing national and international human rights commitments.

Thank you.

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much.

We now have Ms. Benson for seven minutes.

[Robyn Benson, National President, Public Service Alliance of Canada]

Thank you very much.

Good evening, and thank you for inviting the Public Service Alliance of Canada to appear before the committee.

PSAC represents about 140,000 members who may be affected by the recommendations made by this committee. These are members in the federal public service, federal agencies, crown corporations, ports, airports, and national museums.

We filed our first pay equity complaint in 1979, not long after the Canadian Human Rights Act became law. Over the years we've gained a lot of experience in this process. As the “Milestones” on page 3 in our presentation show, our members have had to wait many years to achieve pay equity. It took 15 years to resolve our 1984 complaint against the Treasury Board. Our 1983 complaint against Canada Post wasn't settled until 2013, literally 30 years later, and only after the Supreme Court was involved. We had former members in their eighties calling our offices, desperate to receive the money they were owed before it was too late. Sadly, I have to say that it was too late for some. That money went to their estates.

This is not what pay equity was intended to do. The federal complaint base model has been in place now for almost 40 years. That has given us more than enough time to assess its effectiveness. What we've found is that this model is highly adversarial. It requires legal expertise. It takes an excessive amount of time and resources to resolve the complaints. Budget and staff cuts can only add to the delays in dealing with complaints. Under this system it is virtually impossible for anyone to pursue a complaint who doesn't have the support of a large union or unlimited funds. As the federal pay equity task force concluded, it's an inadequate foundation for progress on pay equity.

Another model before us is the 2009 Public Sector Equitable Compensation Act. We believe there are a lot of problems with PSECA; perhaps that's why it hasn't actually been brought into force yet. The most serious concern is that it violates the Canadian Charter of Rights and Freedoms. We believe that setting up a scheme that only applies to women workers in the federal public service, and which also weakens their ability to achieve pay equity, is contrary to section 15 of the charter. We also believe PSECA violates paragraph 2(d) of the charter that guarantees freedom of association. PSECA prevents unions from representing their members in filing complaints and even includes hefty fines if they do provide any help.

These models are not going to help achieve pay equity. We believe there is a better way. I won't go into all of the task force findings, but it is important to note that through their extensive consultation process there were important areas of consensus. There was consensus that pay equity is a human right and is protected by constitutional equality rights; that the employers have a positive obligation to take steps to eliminate discriminatory wage differences based on sex; and that the pay equity regime must be accessible to both union and non-union workers.

Our union strongly urges this committee to support the comprehensive work done by the pay equity task force, which recommended adopting a new, proactive federal pay equity law.

There are key recommendations that must be part of any new law. All employees in the federal jurisdiction should be covered by the law, including employees who are not unionized; part-time employees; and casual, seasonal, and temporary workers. As well, pay equity coverage should be expanded beyond gender to include aboriginal workers, workers with disabilities, and workers of colour. The new law must include workers and their unions in developing pay equity studies and in maintaining pay equity over time. The task force also recommended that pay equity not be at the bargaining table. You can't bargain away human rights.

Finally, there needs to be a commission set up to assist employers, employees, and unions; and an expert tribunal established to quickly decide disputes between the parties. We would add that both the commission and the tribunal must be independent of the federal government and given the necessary funding to effectively carry out their roles.

Since the task force report was tabled, the labour movement, women's groups, and human rights organizations have called for its recommendations to be implemented. The Standing Committee on the Status of Women has tabled several reports over the years, all calling for implementation of the recommendations. Before now, the Liberals and the NDP each have introduced a private member's bill that would commit the government to putting the recommendation into law.

There has been much discussion over the years. Now is the time for action. Now is the time for this committee to recommend—to urge—that the government act without delay and make proactive pay equity legislation a reality.

Thank you for the opportunity to present our union's views.

Helen Berry, our pay equity expert, and I will be pleased to answer any questions you may have.

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much.

Our final witness is Ms. De Angelis.