Pay Equity Committee on May 4th, 2016

[The Chair, Liberal, Anita Vandenbeld]

I call this meeting to order.

As most of us know, unfortunately, it is very likely we will be interrupted by votes, likely around 5:45. I thank the witnesses for being flexible in keeping their presentations to eight minutes each, which means that if we are interrupted, at least we won't be interrupting you midway through your remarks.

Welcome, everyone. My thanks to the witnesses for the presentations they will be giving before us today.

We have today, in the first panel, from the the National Association of Women and the Law, Julie Shugarman, who is the executive director, and Anne Levesque, the co-chair of the national steering committee. We also have from the New Brunswick Coalition for Pay Equity, Johanne Perron, the executive director.

We will start with the National Association of Women and the Law.

Julie, go ahead.

[Julie Shugarman, Consulting Director, National Association of Women and the Law]

Thank you, Madam Chair, honourable members.

My colleague Anne Levesque and I are pleased to be appearing before you on behalf of the National Association of Women and the Law.

NAWL is a national non-profit feminist organization that has worked since 1974 to promote the substantive equality rights of Canadian women through legal education, research, and law reform advocacy.

NAWL developed significant expertise in pay equity, and has worked collaboratively with federal unions and other women's equality rights organizations to provide evidence to the Standing Committee on the Status of Women multiple times, as well as to the Bilson task force on pay equity. We have, on numerous occasions over the last 30 years, presented on the problems with the complaint-based model under the Canadian Human Rights Act, and the importance of proactive legislation at the federal level.

For ease of reference, NAWL will file its submissions to the pay equity task force from 2002 that, unfortunately, remain perfectly, if not more, relevant today. That report was endorsed by the National Action Committee on the Status of Women, La Fédération nationale des femmes canadiennes-françaises, the Canadian Research Institute for the Advancement of Women, and the DisAbled Women's Network of Canada.

At the outset, it's important to note that in 2006 NAWL was defunded when the previous federal government removed advocacy research and lobbying from Status of Women Canada's mandate, thereby preventing the agency from funding the critical work of equality rights organizations like ours.

Since 2007, NAWL's national steering committee and a group of feminist consultants have kept the organization alive on a volunteer basis. It is in this significantly diminished capacity that we appear before you today, which is really a loss for law and policy-makers, and for Canadian women broadly, given the very active role an organization like ours could and should be playing in helping government develop human rights and charter-compliant legislation.

Because we will be filing our report to the task force, which outlines NAWL's recommendations regarding the nature of proactive legislation, I will confine my comments today to two critical pillars in the way forward.

First, the government must implement the 2004 pay equity task force recommendations and establish a proactive regime. In keeping with this, it must establish and make public a time frame to get draft legislation on the table for feedback and comment from relevant stakeholders.

Second, as part of this committee's mandate, government must ensure funding is available for women's equality rights law organizations to participate meaningfully at federal law-making tables to ensure any proposed proactive regime is compliant with domestic and international human rights obligations as well as with the Canadian Charter of Rights and Freedoms.

With respect to our first recommendation, we hope that at this point there is consensus among committee members that gender-based wage discrimination is a serious and costly human rights problem in Canada, and that Professor Bilson did excellent work to chart the way forward. We know that pay inequity is particularly acute for racialized women, immigrant women, aboriginal women, and women with disabilities. We know that Canada is attracting sanction by international bodies and domestic courts because of its ineffective action on pay equity to date.

It is NAWL's position that in light of both domestic and international commitments and obligations, the Canadian government has a positive obligation to act immediately to table proactive legislation. The adoption of such legislation that applies to the entire federally regulated sector—public, private, large, small, unionized, and non-unionized players—and that recognizes equal pay for work of equal value as a human right is an essential step toward ensuring the respect of women as per section 15, equality rights.

This is not a radical claim. This recommendation is consistent with your committee's mandate, with six reports of the Standing Committee on the Status of Women issued between June 2005 and June 2009, and with the commitments of the previous Liberal government, and in particular of the ministers of justice and labour, who in fact had mapped a fairly clear path forward in their evidence to the Standing Committee on the Status of Women on November 21, 2005.

It's also consistent with the decisions of our highest courts. Indeed in 2004, in its NAPE decision, the Supreme Court of Canada recognized pay equity as constitutionally protected by the charter's section 15, equality rights.

In 2011, after nearly 30 years of litigation, the Supreme Court of Canada unanimously adopted the decision of Justice Evans from the Federal Court of Appeal in the Canada Post pay equity case. In his decision, Justice Evans candidly recognized:

However, with the benefit of hindsight, it now seems to have been a mistake for Parliament to have entrusted pay equity to the complaint-driven, adversarial, human rights process of the Canadian Human Rights Act.

[The Chair, Liberal, Anita Vandenbeld]

Ms. Shugarman, the translators are asking if you could slow down just a bit. I will be a little lenient on the time.

[Julie Shugarman]

Okay, sorry to the translators.

Justice Evans also stated in paragraph 167 of his reasons:

There is now much to learn from the experience of provincial pay equity regimes, which seem not to have been plagued with the same problems of protracted litigation as the federal scheme. In the interests of all, a new design is urgently needed to implement the principle of pay equity in the federal sphere. For criticisms of the present arrangements, and recommendations for reform, see the Final Report of the Pay Equity Task Force....

Finally, with respect to our first recommendation, it bears mentioning that in order to implement the task force's recommendations and institute an effective and constitutional proactive regime, it is necessary to repeal the Public Sector Equitable Compensation Act. Among other things, PSECA violates the constitutional right to equality by failing to provide an adequate mechanism to address the wage discrimination experienced by women employed in the federal public service and by denying them any substantive remedy. I can speak in more detail about the unconstitutionality of PSECA during question period if you would like.

Our second recommendation is that it be part of this committee's mandate to propose a plan for adopting a proactive regime. The government must ensure funding is available for national equality law organizations to participate meaningfully at federal law-making tables.

Without such funding support, the government will not have the women's equality rights law expertise nor the stakeholder participation it needs to guarantee that it enacts constitutional legislation. The Minister of Status of Women's mandate letter from Prime Minister Trudeau includes, among the minister's top priorities, that she work “with the Privy Council Office to ensure that a gender-based analysis is applied to proposals before they arrive at Cabinet for decision-making.”

This mandate is consistent with earlier obligations adopted by the federal government, mandating that legislators engage in gender-based policy analysis at every stage of the legislative process. Indeed, the Department of Justice has highlighted the importance of gender-based analysis in legislative drafting. The drafting of new pay equity provisions is no exception. This requires ensuring sufficient funding for women's equality rights experts and organizations to participate meaningfully in the process. It does not require that you reinvent the wheel and attempt to redo what the task force already accomplished to great international acclaim.

To sum up, get proactive draft legislation on the table within an established time frame, and then ensure the funding is in place to properly engage the necessary experts so that you are sure to introduce a pay equity bill that meets Canada's domestic and international human rights obligations.

Thank you. We would be happy to answer any questions you have.

[The Chair, Liberal, Anita Vandenbeld]

Thank you.

That was eight minutes to the second.

I would now call on Ms. Perron, who also has eight minutes.

[Johanne Perron, Executive Director, New Brunswick Coalition for Pay Equity]

Thank you very much, Madam Chair. My thanks to the committee for inviting the New Brunswick Coalition for Pay Equity to appear today. My presentation will be in both official languages. I will start in French.

The New Brunswick Coalition for Pay Equity is a group of almost 800 people and 91 organizations that educates and advocates for the adoption of adequate legislation in order to achieve pay equity for all workers in both the public and private sectors.

Our organization was founded in 2001, but it is based on a process of reflection and advocacy that started in the 1980s.

In New Brunswick, the movement for pay equity has gathered momentum after wage parity, equal pay for equal work, was achieved. It soon became clear that equal pay was not enough. Most women held different jobs than most men, and those were often lower-paying jobs.

One example was the movement around the wages of registered female nurses in the 1980s. They had been campaigning aggressively since 1969, demonstrating that they were underpaid.

In 1980, a study by the New Brunswick Advisory Council on the Status of Women showed that registered female nurses earned less for the value of their work than Liquor Commission clerks, who were predominantly male.

Thanks to the initiatives of the nurses and public support, in 1981, registered female nurses received an increase of 41% over two years. That still did not amount to pay equity, but it was a fine victory.

Still today, it is estimated that most women in New Brunswick hold female-dominated jobs. In 2009, New Brunswick passed pay equity legislation covering the entire public sector, but no legislation ensures pay equity in the private sector.

Although the New Brunswick Coalition for Pay Equity is a provincial organization and the majority of our interventions are at the provincial level, we have also been involved at the federal level from the outset, because we recognize that access to the right to pay equity for part of the New Brunswick population falls under federal jurisdiction.

We urge the government to take a leadership role and finally pass a proactive piece of legislation, reflecting the recommendations made in 2004 by the independent pay equity task force. Those recommendations continue to be a reference point both for us and the rest of Canada.

I assume that you have looked at all of them, but I would like to highlight a few: that the legislation be proactive and include clear standards and criteria to achieve pay equity; that independent specialized oversight agencies be established to ensure its application with sufficient financial and human resources; that the legislation provide for reporting mechanisms, the participation of unionized and non-unionized employees in the process, as well as measures to ensure pay equity is maintained.

Pay equity is a human right recognized internationally. We expect the federal government to respect this human right for all women and to adopt strong legislation to ensure it is respected by all employers. The current complaint-based legislative framework equates more or less to voluntary measures since few employees have the capacity to lodge a complaint. Even those who are unionized have faced a lot of hardship to get their rights respected, as many others before me have testified. This is unacceptable in 2016.

Now I would like to tell you a little bit about New Brunswick's experience with voluntary measures for pay equity. In 2005 the provincial government adopted a five-year action plan to reduce the wage gap, based on recommendations by a round table at which the majority of participants were from the most important employer associations. The 2005-2010 action plan promoted voluntary measures to ensure pay equity. However, no measurable results came out of the five-year action plan. Employers did not change their human resource practices, they did not implement job evaluations, and they did not compare the value of jobs that are done predominantly by females with those done predominantly by males.

All we know is that in 2008 a little fewer than 25% of employees had job evaluation systems, but we had no information about the number of employers that had implemented a pay equity system and whether that number changed over the course of the action plan. During that period the government also introduced pilot pay-equity projects for workers in four caregiving services provided in the private sector and receiving government funding to a certain extent. In the end the so-called fair pay the government came up with was $12 to $14 an hour.

We asked economist Ruth Rose to analyze the government's reports, and she found that fair wages would lie around $20 an hour. She came to the conclusion that the pay equity exercises in the four caregiving sectors were deliberately distorted to reduce the cost to the government.

The New Brunswick experience shows the need for clear parameters so that employers are not permitted to avoid doing pay equity exercises or to adjust the methodology to fit their interests. That's why we support proactive pay equity legislation both at the federal and the provincial levels. That is also why we support the 2004 pay equity task force report, “Pay Equity: A New Approach to a Fundamental Right”. There is no need for further studies.

We urge the committee to recommend a strong proactive pay equity act based on the 2004 pay equity task force report.

Now is the time to respect the fundamental right to pay equity and to take immediate action.

Thank you.

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much, Ms. Perron.

Since the bells are not ringing yet, we will attempt to start questioning.

We have Ms. Dzerowicz for the first question, for seven minutes.

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you very much.

Thank you, so much. I appreciate why you would have had to speak so quickly and why there is anxiousness.

We've heard fairly consistently—I think there have only been a couple of exceptions—to implement a proactive model; stop the reports, we have enough; and move forward.

With that in mind I would love.... You started going into this a little, Ms. Perron, so I wouldn't mind a little more detail on implementation. There is lots of complexity. My colleague last night did a wonderful job in saying that the concept of pay equity is quite simple and no one is going to disagree with it, but there is a lot of complexity in the implementation, particularly at the federal level.

From the examples we've seen, whether it's Ontario, Quebec, some of the things that have been done in other provinces like New Brunswick, and I'm sure other provinces have had it, and from anything you know of that's been done internationally, what advice would you have around some of the implementation aspects? There are a lot of different types of job classifications. How do we start working through some of that? What would be your advice around that?

Some federal bodies are big, and some small. Do we move a little more slowly on the small? What are the timelines we should be looking at or considering or thinking about as we're trying to put together that framework? What would be some of your advice around that?

I'm going to start with that and then I have a second part.

[The Chair, Liberal, Anita Vandenbeld]

We will have to answer that question afterwards because the bells are ringing.

[Julie Dzerowicz, Liberal, Davenport, ON]

That's okay. Could you take it with you?

[The Chair, Liberal, Anita Vandenbeld]

We have a bus waiting so we should be able to get there on time.

I apologize to our witnesses. Unfortunately this is one of the realities of being on the Hill. I would ask, if it is your pleasure, if you would remain while we're voting. It could be up to an hour, including the timing of the bells, but since we had planned to have this meeting extended an extra hour just in case, if that's the will of the committee, then we would just recommence where we left off and then do everything a little later.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Until 9:30...?

[The Chair, Liberal, Anita Vandenbeld]

Until 9:30, because we built in the extra hour when we did our work plan just in case something like this were to happen.

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

I don't mean to cut anyone off, so we might want to talk with the clerk and with the witnesses and come back here with the next set of witnesses and then have questions for all of them at the same time. I have some constraints; however, it's the committee's decision.

[The Chair, Liberal, Anita Vandenbeld]

We'll come back and we can finish with this panel for 45 minutes, which would have been the norm. Assuming it's 7:30, we could ask all four to be on the same panel. I know one of the witnesses can only be here for an hour. If it goes longer, because we have more questions for those witnesses, the committee can gauge it at that point.

We don't want to miss the votes, so I will be suspending the committee until after the votes.

[The Chair, Liberal, Anita Vandenbeld]

We are resuming.

I want to thank our witnesses very much for their patience. It was a very important vote and we appreciate that you were willing to stay.

We will continue with that first question.

I believe Ms. Dzerowicz had posed the question. If you wish to begin your answer, go ahead.

[Julie Shugarman]

As far as I understand, you were asking about implementation and advice around implementation, and in particular how to deal with some of the complexities that arose out of the Bilson report.

We would say that the Bilson report was as explicit as it was because of how complex pay equity is, so we would not advise to start parsing; in fact, it is important to take the recommendations as a whole.

It might be helpful to look back at the commitments of previous ministers of justice and labour from the previous Liberal government. When they met in 2005 with the Status of Women standing committee, what they proposed was, within a set time frame, to get legislation—even potentially a few different versions of legislation—on the table and then hire a facilitator to take that legislation back to key stakeholders for input. This sounds like a fairly reasonable model and something we would advocate in terms of a good way forward.

The last thing you asked about was the time frame. Of course, we want to say, do it now. Understanding and appreciating, however, that this is complex and that you want to get good draft legislation tabled, I think that six months from when you issue your report you should be in a position to have organizations reviewing draft legislation and providing feedback.

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you for that response. It is very helpful.

I don't know whether there are any lessons we could learn from the implementation in Ontario and Quebec, or from any other international examples you might be aware of. In particular, there are smaller and larger companies or organizations that are federally regulated groups. I'll ask whether you have any advice around that.

Then I'll ask a second question, for whatever time you have left to respond to it. My understanding is that pay equity legislation is only one part of the solution to close the gap on wage inequity. What are some of the other elements that you think we should be focused on as well?

Those are my questions.

[Johanne Perron]

In terms of lessons learned elsewhere, I think the Quebec model is relevant. At first we consulted the people of Ontario. We then made changes to the Ontario model to develop better legislation. I think we can draw on that model.

As for smaller firms, we find it is important to conduct follow-up, to provide training and mechanisms to ensure that employers are reporting, be they large or smaller employers.

I would also like to talk about how long it takes to pass legislation. Our coalition has been around since 2001. Various political parties have told us on a number of occasions that action would be taken to achieve pay equity and bring about changes. Perhaps it is really time to act, and I hope the process will not start from scratch with more research and more studies to end up saying that something will be done, that legislation will be passed, but some other time. I have been working for the coalition for a long time, and I must say that I'm starting to be a little cynical. I would be really sad to see that hope is being given to women again without a result.

In terms of other issues related to the pay gap, once again we should not be muddying the waters. This is not about doing one thing or other. I think it is important to work on the issue of the pay gap as a whole, but this should not be a reason for not taking action. Earlier, I gave the example of New Brunswick. Instead of working very seriously on achieving pay equity, they talked about reducing the pay gap and opting for voluntary measures, but, in the end, we did not see any changes. I really would like to caution you that half-measures are not a solution. Other factors may promote pay equity, including access to childcare and employment equity. I know those have often been mentioned.

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much.

We'll now move to the next question, from Ms. Gladu, for seven minutes.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Excellent.

My first question is for Ms. Shugarman. We heard before from the Canadian Labour Congress, and when I asked them if they were willing to work with the justice minister on the legislation they said, well, it's a provincial jurisdiction. Based on that, I was confused as to whether that was really true or not. I know that we want to do legislation, but perhaps you could speak to this. Is the legislation just about the federal employees, or can we legislate federally for provinces that don't have legislation?

[Julie Shugarman]

I think what we're looking at here is legislation for all federally regulated employers who may have employees working in the provinces, but at the federal level you can't legislate for the provinces.

I hope that answers your question.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

That was perfect.

In terms of the time frame, we did hear that it took two years from the time they started with the Quebec legislation until it was implemented, and I heard you say it took about six months to draft it. Is there any way to make that go faster?

For example, if we took the Quebec legislation the way it is, it's already been implemented. It's been proven to be one of the best in Canada, so do we really need to do stakeholder engagement to implement it? That could cut the time frame down. What do you think about that?

[Julie Shugarman]

I think that no matter what you do, once you have good legislation on paper you're going to have go back to your key stakeholders. I think that is critical.

I guess the other thing I would say is that while there are a number of witnesses who have pointed to positive lessons that can be learned from other jurisdictions, and in particular Quebec, the federal jurisdiction is unique. I think it would be peculiar to draft something identical.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Okay. Very good.

Ms. Perron, New Brunswick has legislation. How is it different from Quebec's legislation?