Pay Equity Committee on May 4th, 2016

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much.

We will go to the next presentation, which is from Ms. Davis.

Go ahead, Ms. Davis.

[Linda Davis, Past-President, Business and Professional Women's Clubs of Ontario]

Thank you.

Good evening, esteemed members of the special committee. It's an honour to be invited to participate in this important work.

As you noted, I am the immediate past-president of the Business and Professional Women's Clubs of Ontario [Technical difficulty—Editor]—

[The Chair, Liberal, Anita Vandenbeld]

You might want to start again, because we lost you for a moment. Sorry.

[Linda Davis]

Okay, I was explaining that BPW stands for business and professional women, and it's a non-sectarian, non-profit, non-partisan, feminist organization that promotes the interests of working women. It operates within Canada and internationally, and has consultative status with the United Nations [Technical difficulty—Editor]—

[The Chair, Liberal, Anita Vandenbeld]

We seem to have lost you again. Can you hear us?

You know what we'll do. While we're working on the technical part, we do have another individual present here. If it's okay, then perhaps we could go to you, Mr. Durber, have you do your 10 minutes, and then we will hopefully have everything resolved with the technical difficulties.

Thank you, Mr. Durber.

[Paul Durber, Consultant, Opus Mundi Canada, As an Individual]

Thank you, Madam Chair.

It's certainly an honour and a pleasure to be here, and thank you very much for the invitation.

I've worked in pay equity in one way or another for about 30 years, and among other things, I've also worked directly for employers, for joint parties, unions, and management. I've also done third party adjudication. Some people don't think I'm terribly independent, but that's their problem.

I've worked particularly with four frameworks that have been at issue here: two proactive ones, namely Quebec and Ontario; the complaint-driven process that existed in Quebec; as well as the federal complaint-driven recommendations of section 11. I must say I'm a great fan of the Bilson report and recommendations. I think it's very comprehensive.

This probably fits with your interests. I'd like to focus on my experience with Ontario and Quebec, and the leadership that has been offered, to talk somewhat about the implementation of proactive pay equity in the federal jurisdiction, about which I have some thoughts. Then I'll talk about replacing the Public Sector Equitable Compensation Act, and why, and then I have some concluding brief thoughts on issues going forward.

In terms of my views on the Ontario and Quebec legislation, I come away with two things from the Ontario legislation. The initial go at it was not as fair as it could have been, because the lowest paid male comparators ended up being the primary target for making comparisons. Whereas, in the federal jurisdiction in Quebec, it's average. Later on, the Ontario legislation was amended to include proportional value and that also is a good deal fairer.

I think one of the difficulties is that sometimes once you start, you end up having to continue. Many pay equity agreements and plans are stuck on the lowest paid male comparator. I'd urge you not to take that route and I would hope that the Ontario experience will definitely come into play there.

I mentioned that Quebec focuses on average comparisons as well as under section 11 and the reason for that, by the way, is that if you have three male jobs being paid differently, it makes more sense to be able to tell both the employer and the employee that you're being fair by taking the average, neither the maximum nor the minimum. That's a very simple concept. I don't think we need to go to the moon to figure that one out.

Ontario has exerted a great deal of leadership, particularly on the basic issue of gender neutrality. One could pause on that issue of bias and gender neutrality, because it goes to the issue of fairness in how you figure out the value of work. Unless you approach that question knowing your biases, testing all the systems, which by the way truly need testing and I'll come to that, you will not end up having the proper, supported regime for pay equity.

In this regard, I would say that the leading jurisprudence on gender neutrality comes from the pay equity hearings tribunal. I would certainly recommend, if you're doing any research in addition to Bilson, there are certain cases, such as Haldimand-Norfolk, No. 6—there is a whole bunch of them, as some employers are pretty litigious, as were nurses' associations—and Women's College Hospital, that I would recommend on that issue of gender neutrality. It's really fairly important. Also, of course, there are a number of Supreme Court of Canada decisions, going right back to 1989, and in questions we could maybe cover that, if it's of interest. I'm sure they're all referenced appropriately.

Job evaluation—you've heard the term classification—is an exceptionally difficult discipline to get hold of. It takes a great deal of detailed analysis, and consequently, because of the basis of compensation it's extremely difficult to change.

One reason for having proactive pay equity legislation is to force, and I hate to use that word, a re-examination of the very practices of how you value work. That's a technical term that follows the issues you're dealing with here, which is the stereotyping and undervaluing of women's work. Job evaluation is a key tool for doing that. Unless it's reformed, unless there are rules such as they have in Ontario and Quebec, I would venture to say that your reform won't work.

Maintenance is clearly exceptionally important. I'm so glad that you've heard from the Ontario commission. I've noted a lot of difficulty in Ontario, with some of the unions that are trying to push for maintenance, in having employers respond. I totally agree with the Ontario Pay Equity Commission that reporting is very important in the legislation.

Someone used the word transparency earlier. Having transparency on what's happening on an ongoing, continuing basis is very important. That won't happen unless there's a legislative mandate.

I know that when I was looking at the Ontario experience early on, they had to do a sample. They couldn't report on particular cases. I felt that the commission was somewhat hamstrung in what they were doing. It lowers the incentives to employers in particular—who have to pay a cost, by the way—to carry out pay equity. I would certainly support very strong measures, in whatever legislation you come up with, for gender neutrality and maintenance and real incentives.

I've covered reporting. There are reporting requirements in the Quebec legislation, which I think are very helpful.

I'd like to speak briefly about the body that you recommend to implement pay equity. I would not recommend the Canadian Human Rights Commission, even though I worked for them. As a complaint-driven organization, I think that they have the wrong culture. I would certainly support a proactive, new commission.

By the way, the Human Rights Commission has been unable to maintain its expertise, and the Public Service Equitable Compensation Act has not helped. I've mentioned that I think it ought to be abrogated. I don't think it's pay equity legislation, and I can speak more about that.

I would also like to mention issues going forward, which include proxy. We can perhaps speak a little about that. How to treat past pay equity efforts.... There would be applications for exemptions, and I think that needs to be provided for in legislation. Quebec has experience in that.

Finally, I think you need to do research on extending the grounds.

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much for your intervention.

It looks like we do have Ms. Davis back. It is possible we may lose the video, but we will have the audio. I would invite Ms. Davis to proceed. You have my apologies for earlier.

[Linda Davis]

Thank you. I don't have the video myself, but it sounds like the audio is here, so I'll jump right in. In the interest of time, I will go right to my points, if that's all right.

The gender wage gap, I believe, is a symptom of a systemic undervaluing of women that exists worldwide. I am not saying undervaluing of women's work; I am saying undervaluing of women. Because this issue arises before employment even begins, I think we must focus on this systemic issue. Establishing equitable pay and compensation scales is part of the solution, but it won't work all by itself. If we don't address the underlying reasons for the pay inequities, we will not solve the problem, and these inequities will continue to reoccur.

Lack of awareness about gender economic inequalities in the workplace is one of the biggest reasons they still exist. The second issue is normalization of the problem. I can elaborate on these afterward in questions, if people want to, but I will just leave it at that for now. Other factors that I believe are affecting women's choices and the gender wage gap are the care penalty and the caregiver penalty. I will assume that you all know what that is. If not, we can explore that again in questions afterward. I believe there are solutions to these problems over and above the whole pay equity piece, which is absolutely necessary, as are all of the things being discussed here.

I think we have to begin with awareness in the schools, at home, and at work. This awareness can be about several different things. About the gap itself, what is it? What causes it? What are the conscious and unconscious effects of that gap?

I believe that this can be accomplished in a number of different ways.

One way is by declaring equal pay day in Canada. I think it is important. We have done this in Ontario. We have given it status, and in that sense brought an awareness to that process. Having an equal pay day helps people be aware that it takes until March or April, depending on the calculation and the numbers used, for women to actually reach the equal pay that men reached the year before. That is the aha moment for a lot of people. It carries on further. Once you get the dialogue going, you can start to talk about how many more years a woman has to work to be able to achieve the same income level that a man has achieved.

The other thing would be public media campaigns that would target the problem of awareness and talk about the unconscious and conscious biases that are happening. There are lots of different ways those campaigns can happen. I believe we have to target schools. I understand that at the federal level that is probably out of your jurisdiction, but I think there could be influences happening across the provinces that would ensure that this dialogue starts early in school and that girls and boys are thinking about all the possibilities, not limiting themselves and not seeing others as limited.

I believe that we have to create an awareness in the workplace. We have to have some kind of employee training, which might be similar to health and safety training, where people learn about human rights and about the biases and the effects that the wage gap has, as well as their rights, of course.

I believe governments should look at their processes and see how those might bias a family so that the lower-income earners may be disadvantaged, and see pay equity for the overall good that might happen with a family.

Now I'm referring here to things like the employment insurance process and tax laws. In the EI system, for instance, I believe that should be reconsidered to see that parents are being given more flexible time for leaves and caregiving. This is more to involve men in the process of caregiving and to make sure women are being paid for short times away. By that I mean that maternity leave and parental leave are part of it.

Other things that influence the wage gap are things that draw women away for short times, such as a sick child who can't go to school, and who can't be put in day care, so a parent has to stay home. It might be for a day or two. Many women, especially part-time workers, would lose income for that and would not have access to things like employment insurance for those short terms. Those are ways we can influence the wage gap.

Tax laws, for instance, may have disincentives for the lower-income earner in families. Those disincentives may cause that lower-income earner to lose wages, and for various reasons to not go to the next lower tax bracket for having exemptions for the family, so sacrificing the wage for the good of the family. It's the way the tax laws are set up, I believe. Those are things government can look at.

Looking at universal child care is also a huge incentive to get women back into the workforce and make sure we're sharing that care between men and women as child care becomes an option. I think that would possibly get women who are not considering full-time employment back into full-time employment and help to close that gender wage gap.

In 2010 the international group of the business and professional women's group I belong to became involved with UN Women and the UN Global Compact, and the newly formed women's empowerment principles. These seven principles guide business to a more gender equitable workplace. This is a voluntary program encouraging businesses to sign the declaration and then employ the principles to raise awareness, remove barriers, and promote a gender equitable business model within their company.

Since their launch in 2010, over 1,000 CEOs from corporate entities with a minimum of 10 employees have signed the women's empowerment principles statement. I believe this is a model that could be adopted. There are seven principles the government could adapt and use as a guide for employers to create awareness in their workplace to closing the gender wage gap. Once created, the federal government could then build resources for employers to use for training—as mentioned before, that kind of employee training—and provide the tools to use for assessing the overall compliance and equitability of their companies.

There are many socio-economic issues women uniquely face and suffer because of the discriminatory gender wage gap. That only aggravates these issues. Women do not pay less for their goods and services, education, rent, utilities, and other items. In our society there's the argument they pay more, yet our society is complacent about women earning less. Trying to navigate the world that expects the same—or more, in fact—as what it would expect from a man, but then only rewarding 70% in return, leads to women living in poverty, staying in unsafe relationships, and enduring unhealthy situations at work all because the choices are limited due to this inequality.

That creates this cycle of socio-economic issues that are a huge drain on our society. I think we must stop this cycle.

[The Chair, Liberal, Anita Vandenbeld]

Perhaps you could quickly finish up. That is 10 minutes.

[Linda Davis]

Okay.

I think if we can stop this cycle, it should be the highest priority of the Canadian government.

Thank you.

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much.

We did get you visually as well. Thank you for that.

Ms. Chicha is appearing for the second time before our committee.

Ms. Chicha, the floor is yours.

[Prof. Marie-Thérèse Chicha]

My thanks to the committee for inviting me again to talk about my favourite subject in terms of equality.

As you know and as was emphasized by many witnesses you have heard, pay equity is a fundamental right. The question is no longer whether or not it should be implemented and when, but how and what is the most effective way to achieve this objective enshrined in the C100-Equal Remuneration Convention of the International Labour Organization and ratified by Canada about 40 years ago.

I chaired the committee that prepared Quebec's Pay Equity Act. I have also worked extensively on this issue with the International Labour Organization in Geneva. I also gave a lot of training sessions on pay equity in various member countries of the International Labour Organization, including Portugal, Ukraine and Denmark. A host of countries are interested in pay equity and they are all moving toward using a job evaluation system without gender-based discrimination. That’s very important. As noted by the commissioner of the Ontario commission, it is important to have tools that are gender neutral.

Let me mention the document that I have sent to your members (officials) and that explains how to conduct a non-discriminatory evaluation. The document is in French, English and a dozen other languages. This is a very simple document that would really help you become familiar with a non-discriminatory evaluation method, which is the basis of pay equity.

Since the mid-1980s, we have quickly realized that the complaint model, as you heard, is long, expensive and very confrontational. At the end of the process, 10, 15 or 20 years later, one situation of discrimination is settled in a single organization. According to the latest statistics from Quebec’s pay equity commission, which has now merged into a larger commission, in 2015, 84% of employers in Quebec had implemented the Pay Equity Act. Among companies with 100 or more employees, 94% had done so. So a very high percentage of employers have implemented pay equity. If the complaint model were used, it would take 50, 60 or even 100 years to achieve such a result. I think the proactive model is tested and proven.

My presentation will focus on the main features of the Quebec legislation. I will also mention, whenever appropriate, the differences between the legislation and the recommendations of the task force of which I am a member.

An important feature of the Quebec legislation is its universality, meaning that the requirement to achieve pay equity applies to all businesses, all sectors and all employees. But something is missing from the Quebec legislation and all other pieces of legislation, including Ontario's, and that's the fact that they do not extend pay equity to visible minorities, aboriginal people and individuals with disabilities. This was pointed out by several witnesses. I think it is something that concerns you. I will also come back to it.

A second feature of the Quebec legislation is flexibility. I noticed that this is also a concern for the members of the committee. In the Quebec legislation, companies are divided into three categories according to their size, and the requirements for employers are much lighter in small businesses, with 10 to 49 employees, and slightly stricter for those with 50 to 99 employees. The requirements are more structured and demanding for companies with 100 or more employees. So the legislation sort of takes into account the needs and constraints based on the size of companies, which is very important.

Flexibility can be seen when companies are in financial difficulty. In those cases, the pay equity commission can give the companies time to make the payments if they are experiencing difficulties. The idea is not to bankrupt companies because of pay equity.

I would like to provide another example of flexibility, and the market plays an important role in this. In the event of a shortage of qualified individuals for a male-dominated job, where the employer is required to provide a very high salary to attract employees, this higher portion of the salary to attract employees who are rare will not be considered discriminatory compared to female-dominated jobs of the same value.

Another feature is the accuracy of the approach. One of the problems with reactive legislation is the fact that the approach is not stated very clearly, hence very, very lengthy disputes between parties when it goes to a tribunal or the Human Rights Commission. Proactive legislation specifies the thresholds for female-dominated and male-dominated fields. They specify the steps in the pay equity plan, the assessment factors and the salary comparisons.

I would say that the salary comparison that is used the most isn't paired or the average value, but a comparison of jobs by curves. It isn't a matter of having average values, but rather a regression curve. I won't go into the technical clarifications here.

Furthermore, proactive legislation—in Quebec in particular—sets deadlines and a calendar. It's a little too long in Quebec. Employers are given four years to establish their pay equity plan and another four years to pay the adjustments. Our working group recommended that three years be given to draft the plan and three years to pay the adjustments. I have read the Swedish legislation and, there, it's also three years and three years. So it's more limited in time.

One of the issues that came up during the meetings with other experts was the fact that perhaps the phase-in period should be spread out, like what Ontario does. In other words, the first two years would be for large companies, the next two or the next year for smaller companies, and so on. However, I think that if companies are given three years to establish a pay equity plan, that will solve the problem of phasing in in stages because small companies could wait for the third year to do their work. The large companies could start in the first year. I am in favour of standardizing the implementation when it comes to the start of programs.

Another characteristic of the Quebec legislation that is extremely important and that distinguishes it from the Ontario legislation, is the structured and joint participation of representatives of salaried employees and representatives of the employer. All companies with 100 or more employees are required to have a pay equity committee, but smaller companies are not. Fifty percent of the representatives of salaried workers must be women. Why? Because the work of women in female-dominated jobs is often invisible. Everything related to responsibility for other people, everything involved in great attention in the job, fine manual dexterity and everything related to the communication field, all of these things that are found in female-dominated jobs are often invisible. By having representatives of salaried workers—in particular women—participate, we try to find solutions to this issue of invisibility. What is invisible is not evaluated and what is not evaluated is not remunerated. Visibility is an extremely important issue.

The other advantages of participation are that it reduces the cost to the government. In fact, the work is done by a pay equity committee instead of being done by officials from the government or the Commission de l'équité salariale, who will already have a lot to do. It's done within the company and is adapted to it. It's flexible and takes into account the specificities of the company.

This also speeds up the process. When it's done within the company, it's much quicker than if the company had to constantly turn to the commission to find out what to do at one stage or another. The participation is structured, and it is very important.

Another characteristic is transparency. The employer must give the required information to the members of a pay equity committee so that they can do their job. Otherwise—

[The Chair, Liberal, Anita Vandenbeld]

Madam Chicha, please conclude very quickly because your 10 minutes are up.

[Prof. Marie-Thérèse Chicha]

Okay. Thank you.

I will come back to that.

I wanted to talk about the issue of intersectionality, which was raised. Once again, I could provide details in my answers to questions on issues affecting aboriginals, persons with disabilities and visible minorities.

Since there was a lot of discussion about Statistics Canada's regression studies, I would also like to highlight that Statistics Canada attributes each aspect of the wage gap to a case and, ultimately, states that there may be unexplained discrimination. I will end on that.

[The Chair, Liberal, Anita Vandenbeld]

Thank you.

[Prof. Marie-Thérèse Chicha]

Pay equity is defined based on the wage gaps between jobs of equal value. The regression studies do not indicate the value, the predominant jobs, or the overall remuneration that is part of pay equity. They only indicate hourly wages. I think we shouldn't make illusions. Using the regression studies of Statistics Canada and other economists, although they are rigorous and very well done—

[The Chair, Liberal, Anita Vandenbeld]

Thank you.

[Prof. Marie-Thérèse Chicha]

—do not concern pay equity as we define it.

[The Chair, Liberal, Anita Vandenbeld]

Thank you very much.

I'm pleased, actually, that you were our very first witness when we started the committee, and you are also among the final witnesses. Thank you so much.

There's obviously a lot for us to understand. I'm going to go directly to the questions.

We will start with Ms. Dzerowicz for seven minutes.

[Julie Dzerowicz, Liberal, Davenport, ON]

First, I want to thank everyone for their presentations. They were amazing. My head is about to explode with all the information that's come in.

I know, Ms. Heyninck, that you have to leave soon, so I'm going to address my questions to you, initially.

First, I understand that the federal jurisdiction is unique. What could we learn from the enactment and the implementation of proactive pay equity legislation in Ontario? I'm going to be specific. I heard your advice around reporting. One of the recommendations in the Bilson report was that pay equity should be removed from the collective bargaining process. Could you let us know whether that was removed in Ontario and whether we could learn from that? That's one aspect.

Second, my understanding from the pay equity tribunal that was set up is that there has been a decline in terms of the number of cases that's come before it, even though it seems like the gender wage gap has been increasing over recent years. I wonder if you could talk to us about the tribunal and whether there's something we need to be concerned about there.

Lastly, on flexibility, I think it was Ms. Chicha who talked about the Province of Quebec having three groups. Is there that the same type of grouping? Has it worked in Ontario? Would you recommend that at the federal level?

[Emanuela Heyninck]

On the issue of the wage gap going up and the tribunal cases going down, I don't even know how to answer that. Pay equity is not about the gender wage gap. I think you've heard that multiple times. I think there have never been many cases that have gone forward to the tribunal. In the initial stages, of course, when people were testing the system and how far the flexibility could go within the processes that were laid out, there was certainly much more jurisprudence. The cases that go to the tribunal now tend to be testing charter issues, law-related cases, and some of the maintenance requirements around the proxy method, which we didn't really talk about. That's very technical and it has had mixed results in Ontario, I'd say.

The fact that the gender wage gap is fluctuating really has nothing to do with the case level at the tribunal. I would say that the cases that go to the tribunal tend to take a long time because they're de novo, and usually they're union cases, in which, as I said, they're trying to test something out. Most of the issues resolve at our level, at the office level.

On the issue of the collective bargaining piece, I guess it depends which union you talk to. I would say most unions are averse to mixing collective bargaining with pay equity, because one is a human right and the other one is the normal give and flow of collective bargaining. Our act integrates those two concepts from the perspective that unions and employers are prohibited from bargaining anything that, if implemented, would bring about a contravention of the act. That's the prohibition, and then any pay equity agreement that results supersedes a collective bargaining agreement. That's how the two acts interact in Ontario.

If you were moving forward, I would maybe suggest that you look at some mechanism for tying those two processes together. They can still be distinct, but from a timing perspective it would be really advantageous, perhaps, if there were some ability to coordinate what happens at collective bargaining, and then relate it to a pay equity process.

I haven't run this by stakeholders, so I'm simply making a suggestion. You could do something like having a term in the collective bargaining agreement that is a sign-off on pay equity, that they've considered the pay equity consequences of a particular collective bargaining agreement. If there isn't a sign-off, then you could have a time frame within which to bring a complaint about pay equity, for instance, to the commission, so that there isn't a lot of overlap.

What we find in Ontario is that sometimes you will have three and four collective agreements, and then one of the unions will bring a pay equity complaint, and it makes it very difficult to go through several collective agreements to determine what the pay equity consequences are. Having some ability to bring those two together and yet keep them apart if the parties wish to do so would need to be respected. That being said, there are lots of employers and unions that have negotiated terms of reference regarding how they're going to deal with their pay equity issues. Those have evolved over time, so it would probably be good to consult with unions to determine some of the best practices if you are leaning in that direction.

The other question was around flexibility, and I don't recall what that involved.

[Julie Dzerowicz, Liberal, Davenport, ON]

I believe Ms. Chicha was talking about how there was some flexibility, but I'm not sure if it was around the rules or implementation, between the 10 to 49 and the 50 to—

[Emanuela Heyninck]

Oh, you mean the size of the employer.

When our act was implemented, it came into effect all at once. However, it was staged in terms of larger employers having to go through a plan. They had a certain amount of time to come into compliance, in the sense that they had to adjust their current compensation practices to provide for pay equity. That was done by size.

Whether you need to do that now I think would depend on the unique nature of the federal jurisdiction.

[The Chair, Liberal, Anita Vandenbeld]

Thank you.

That's the seven minutes.

We will now go to Mr. Albas for seven minutes.

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

Thank you, Madam Chair.

Thank you to all of our witnesses.

I'm going to start with the commissioner.

Commissioner, thank you for coming today. I'd like you to elaborate a little further about the Public Service Equitable Compensation Act. You said that you can understand the perspective of unions not wanting to have linkage between the necessity of dealing with pay equity.... You've offered that there could be a process where it's still resolved with unions. I believe that the employer and the unions both have a responsibility to deal with these issues.

Can you just elaborate a bit more on the model that you would be talking about?