Status of Women Committee on May 12th, 2009

[The Chair, Liberal, Hedy Fry]

The committee will now begin its study on the Public Sector Equitable Compensation Act.

Today we have witnesses from the Professional Institute of the Public Service of Canada and witnesses from the Public Service Alliance of Canada: Mrs. Isabelle Roy and Mr. Geoffrey Grenville-Wood from the Professional Institute of the Public Service of Canada; and Mrs. Patty Ducharme and Mrs. Andrée Côté of PSAC.

Thank you so much for coming.

You know you have 10 minutes per witness group to present, so that means you will share your 10 minutes, and then we will open up to questions from the committee.

I will begin with Mrs. Roy and Mr. Grenville-Wood.

[Isabelle Roy, Legal Counsel, National Office, Professional Institute of the Public Service of Canada]

Good day and thank you for having me here.

My name is Isabelle Roy. I am the Legal Counsel for the Professional Institute of the Public Service. With me today is my colleague Geoffrey Grenville-Wood, General Counsel with PIPSC's Legal Department.

I will give my opening statement and my colleague will help me to answer any questions you may have later on during the round of questions.

I also want to point out that we have prepared a summary of the presentation, but we intend on filing a complete brief with the committee a little later this week. We just haven't had the opportunity to have it translated.

The Professional Institute of the Public Service of Canada represents approximately 57,000 professionals across Canada's public sector, the vast majority of whom work in the federal public service. Our members work in departments, agencies, Crown corporations, museums, archives, laboratories and field research stations.

Our members are directly affected, or one could even say targeted, by the Public Sector Equitable Compensation Act. It is our contention that the Act constitutes an unwarranted and unnecessary attack on the Charter rights of federal public service employees and the unions representing them.

Today, we would like to analyse and comment on this legislative measure.

I want to point out that last February, before the House of Commons Standing Committee on Finance, the institute was, again, a witness. It stated its position at that time, that the proposed pay equity legislation, which formed part 11 of Bill C-10, the Budget Implementation Act, was too deeply flawed and should not be allowed to become law only by virtue of its inclusion in a broader and entirely unrelated omnibus piece of legislation.

We recommended at that time that the government develop stand-alone legislation dealing with pay equity and allow the issue to receive the thoughtful and considered debate and discussion it warranted. By adopting the Budget Implementation Act without any amendment to part 11, the government has demonstrated that it is not at all interested in improving the pay equity regime in the federal public sector.

In April 2009, PIPSC filed a notice of application with the Superior Court of Justice of Ontario to have it declare the Public Sector Equitable Compensation Act as well as the Expenditure Restraint Act unconstitutional and therefore invalid.

My remarks today and the written brief that will follow are made without prejudice to any rights claimed or views stated in the context of this constitutional challenge.

Pursuant to the Act's preamble, women are entitled to receive equal pay for work of equal value. That is an empty, and cynical promise, in that the provisions of the Act are aimed at ensuring that there is no possible, feasible way of achieving this objective.

The PSECA violates subsection 15(1) of the charter by significantly eroding the substance of the right to pay equity, the processes by which pay equity is implemented and enforced, and the remedies available to public sector employees to correct sex-based wage discrimination. Such actions sanction and perpetuate sex-based wage discrimination, contrary to subsection 15(1) of the charter.

In terms of international law, if we consider over the past century that the right to equal pay has been enshrined in a wide range of binding international instruments to which Canada is a signatory, these instruments have imposed increasingly specific directives for action to be taken by signatory states, which include Canada, in order to achieve pay equity. In particular, these instruments use strong language, requiring government and employers to ensure equality outcomes in practice and mandating regular reporting to monitor compliance.

Canada's international commitments are relevant and convincing when it comes to interpreting the Charter. They are an important indicator of the full scope of the protection afforded by the Charter.

The act fundamentally erodes the substantive right of public sector women to be free from sex-based wage discrimination. Inter alia, it redefines key pay equity concepts and wrests these concepts from their quasi-constitutional human rights underpinnings under the Canadian Human Rights Act. The PSECA redefines the criteria to be applied in addressing the value of work performed. It restricts the pool of employees who will receive protection under the act and then limits the comparators to be considered during an assessment.

In our view, this is all in aid of limiting the women who will be entitled to pay equity adjustments and limiting the pay equity adjustments to which this restricted group of women will be entitled.

Having restricted substantive rights to pay equity, the PSECA restricts pay equity further by fundamentally changing the processes by which pay equity is implemented and enforced.

The Act takes away any recourse public sector women have to quasi-constitutional protections against gender- based wage discrimination. Instead, it imposes inadequate protections against wage discrimination.

Beyond these significant changes, the PSECA contains serious process flaws that will limit the pay equity protection likely to be achieved by public sector employees and thereby permit sex-based wage discrimination to continue in the federal public service.

These process flaws in the PSECA include the fact that it contains no clear proactive obligation on employers to review pay practices and identify any wage discrimination and the fact that it makes no reference to the requirement to compare female-predominant work with male-predominant work and make the necessary pay adjustments to ensure that comparable work--based on skill, effort, responsibility, and working conditions--is paid the same. It's the fundamental basis of pay equity. Such comparisons are currently required by the CHRA.

The act imposes no obligation on employers to provide unions or employees with all the necessary information to enforce the right to pay equity, including the need to have information about pay and the skill, effort, responsibility, and working conditions of male- and female-predominant work.

The act makes no provision for the parties to carry out a joint compensation assessment, as is currently the practice under the Canadian Human Rights Act.

The act provides no human rights dispute resolution mechanism for unions and employees to resolve any differences concerning pay equity; if the parties cannot agree on an equitable compensation plan, the only recourse is for the union to pursue interest arbitration or go on strike to enforce the employer's pay equity obligation.

Furthermore, the Act wrests from employees and their union the right to file a complaint under section 11 of the Canadian Human Rights Act with the Canadian Human Rights Commission. Pursuant to this provision, the Commission would have been entitled to investigate a complaint, and that complaint could have been heard by the Canadian Human Rights Tribunal—a specialized tribunal, I might add.

Employees wishing to challenge wage discrimination must now file a complaint with the Public Service Labour Relations Board of Canada, a body with no expertise in the highly specialized area of pay equity. In fact, the Board has only been considering human rights issues for a few years. Also, an employee wishing to initiate a pay equity complaint, a very costly, complex process closely associated with bargaining groups in general, must now proceed without the support of his union and without the support of a specialized commission like the Canadian Human Rights Commission.

Finally, the PSECA prohibits unions from assisting their members in preparing or processing pay equity complaints. This prohibition, which is backed in the act by criminal sanction, clearly violates both the freedom of expression and the freedom of association that are guaranteed under the charter.

I'm going to talk briefly about the remedial restrictions that are brought about by the PSECA.

[The Chair, Liberal, Hedy Fry]

Ms. Roy, you have one minute left.

[Isabelle Roy]

I'll talk very quickly, as well as briefly, about the remedial restrictions.

I'll leave this, generally, by saying that the PSECA severely restricts the pay equity remedies that are currently available, and it permits and perpetuates discrimination based on sex, in terms of pay equity.

Any adjustments provided by PSECA are subject to the caps on wages that have been implemented as a result of the Expenditure Restraint Act. There are no adjustments provided for under the PSECA. More importantly, the Public Service Labour Relations Board, which is now going to be hearing complaints of this nature, is forced to apply a highly deferential standard in terms of its review, according to the legislation, in its assessment of whether or not there is a pay equity issue.

The PSECA limits the remedies available through interest arbitration by incorporating, by reference, the restrictions on the content of collective agreements that we find in the Public Service Labour Relations Act.

I want to take this opportunity to close now, thank you for your attention, and reiterate the fact that in our view this legislation is wholly unconstitutional.

Thank you.

[The Chair, Liberal, Hedy Fry]

Thank you, Ms. Roy.

I'm sure someone will ask you about the rest of what you intended to say.

We'll go to PSAC, Ms. Ducharme or Ms. Côté.

[Patty Ducharme, National Executive Vice-President, Executive Office, Public Service Alliance of Canada]

Thanks, Dr. Fry.

I'm Patty Ducharme. I'm the national executive vice-president of the Public Service Alliance of Canada. On behalf of the 166,000 members we represent, I would like to thank the Standing Committee on the Status of Women for providing us with this opportunity to share our comments on the Public Sector Equitable Compensation Act.

I am joined today by my colleague, Andrée Côté, who works at the PSAC, and by a host of PSAC members and union officers in the gallery.

While I will be making my presentation in English, I will be happy to answer your questions in French.

It was with a feeling of outrage that we witnessed the Conservative government undemocratically implement its plan to strip public sector workers of their fundamental right to pay equity. The law was passed as part of Bill C-10, the Budget Implementation Act. But the government has admitted that an assessment of how much money this piece of legislation would save was never done.

Pay equity is a human rights issue and it should never have been addressed in a budget bill. The federal government has included provisions in this act that will radically reform the law on pay equity for federal public sector workers. PSAC members, 62% of whom are women, will be hit very hard by this new law.

To summarize, this bill will essentially do four things. First, the PSECA will restrict the substance and application of pay equity to the public sector. The legislation will make it more difficult to claim pay equity by redefining the notion of female-predominant job groups to require that women make up 70% of workers in a particular group. It also redefines the criteria used to evaluate whether jobs are of equal value by adding a reference to market forces.

Secondly, the act allows for pay equity to be bargained away. The act transforms pay equity into an equitable compensation issue that must be dealt with at the bargaining table. Pay equity is a fundamental human right that should not be vulnerable to being traded away at the bargaining table. Even within a negotiations framework, this act provides for a very bad process. There is no obligation on the employer to proactively review its pay practices and to provide the union with relevant information. There is no obligation to proceed with a joint pay equity assessment, and there are no clear definitions of the new terms that are introduced in this act. The act actually specifies that it is possible to delay the equitable compensation of female workers for undetermined periods of time.

Thirdly, the act compels women to file complaints alone, without the support of their union. Under this legislation, if pay equity is not achieved through the bargaining process, as Madam Roy already said, individual workers will not be represented by their union. They would only be permitted to file a complaint with the Public Service Labour Relations Board. It goes on further to insist that there would be a $50,000 fine on any union that would encourage or assist their own members in filing a pay equity complaint.

Finally, the act prohibits access to the Canadian Human Rights Commission for violations of public sector workers' right to pay equity. This new law removes the right of public sector workers to claim protection under sections 7, 10, and 11 of the Canadian Human Rights Act and prevents them from filing complaints of wage discrimination with the Canadian Human Rights Commission. It has specifically targeted public sector workers, since other federally regulated workers are not covered by these provisions.

Instead of moving forward and ensuring the progressive realization of the right of all women to pay equity, as required by Canadian and international human rights laws, such as CEDAW and the ILO convention number 100, the federal government has adopted regressive legislation that will seriously undermine the human rights of women.

In PSAC's opinion, this act violates several fundamental constitutional rights of working women in the public sector.

First, it is a violation of women's equality rights. The act introduces a new mechanism to address equitable compensation in the public sector that will actually restrict the capacity of women to claim and obtain pay equity. For example, the introduction of the market forces criteria to evaluate whether work is of equal value undermines the ability of women to receive pay equity because market forces have historically and consistently undervalued women's work.

Some workers will be entirely excluded from accessing the new equitable compensation mechanism since workers who belong to a job group comprised of 55% to 69% women are no longer considered to be members of the female-predominant group. These women will be denied the right to participate in any process to address the issue of wage discrimination.

By requiring that unions and employers negotiate pay equity at the bargaining table, the act undermines the established principle that human rights cannot be traded against other terms and conditions of employment or waived by the agreement. This effectively eviscerates the right to pay equity. The downgrading of pay equity as proposed in this act is a violation of the constitutional charter equality rights of working women that are guaranteed to them under section 15.

Second, it is a violation of the rights of freedom of association and freedom of expression. The prohibitions contained in the act against union assistance or encouragement in filing a pay equity complaint constitute a violation of the right to freedom of association that is guaranteed in section 2 of the charter. This prohibition completely restricts the ability of unions and their members to take collective action, and it violates the right of workers to be represented by their unions in important matters that relate to their working conditions. It precludes the unions from accomplishing their most basic duty of representing their members on issues relating to their working conditions, such as wage discrimination.

The prohibition also prevents the unions from expressing any views or advising the workers on anything that might assist or encourage them to file complaints regarding pay equity. This undermines the constitutional right of unions to express opinions and give advice to their members on matters that bear on their members' rights as workers.

The PSAC submits that the PSECA and the Expenditure Restraint Act impose limits on working women's constitutional rights that are simply not justifiable in a free and democratic society. We too have initiated legal proceedings to challenge this discriminatory and unfair legislation in court.

We have also informed the United Nations Commission on the Status of Women of our intention to file a complaint against the federal government. The urgent notice of communications that we sent to the UNCSW on March 5 is appended to your brief. You will note that the PSAC received the support of 40 important trade unions, women's groups, and human rights groups across Canada and in Quebec. It is of note that approximately 100 well-known lawyers and legal academics likewise expressed their opposition to this bill in a letter sent directly to the Prime Minister.

In closing, I wish to say that PSAC is urging this committee to reaffirm its commitment to proactive federal pay equity legislation, as it has done several times in the past. We invite you to strongly condemn the Public Sector Equitable Compensation Act and its discriminatory provisions against women working in the federal public sector. We urge the Standing Committee on the Status of Women to recommend that this act be abrogated and replaced by proactive federal pay equity law, as recommended by the pay equity task force in its report, Pay Equity: A New Approach to a Fundamental Right. This would be a first step towards a proactive pay equity law that would make a real difference in the lives of working women.

With that, I'd like to thank you. I'd be pleased to respond to any and all of your questions.

[The Chair, Liberal, Hedy Fry]

Thank you very much.

You have 60 seconds left.

We'll begin with the Liberals. Please go ahead, Ms. Zarac.

[Lise Zarac, Liberal, LaSalle—Émard, QC]

Good day. Thank you very much for coming here today.

I will put the first question, then defer to my colleague.

Ms. Roy, you stated in your introductory remarks that pay equity rights are fully justified. There are two parts to my question.

First, do you feel that the changes to pay equity brought in by the government in its budget, that is in BillC-10 , were justified? Ms. Ducharme has already answered this question, but I would like to know your views on this matter.

The government maintains that the changes will mean pay equity complaints will be handled in a more expeditious manner. Do you agree with that statement?

[Isabelle Roy]

First of all, as far including this bill in BillC-10goes, we agree in every way with the views stated by the representatives of the Public Service Alliance of Canada.

There is no evidence to suggest that linking this bill with Bill C-10 will save any money. Besides, even if that were the case, we are talking about a fundamental human right that should not be sacrificed for a few pennies. There is no proof of any cost savings to be had and even if that were the case, that would not be a good enough reason, in my opinion, to justify the inclusion of this legislation in an omnibus bill.

To answer your second question as to whether the proposed process is more efficient and expeditious, we have indeed heard some comment to that effect. In essence, the bill ties pay equity to the collective bargaining process.

Collective bargaining in the public sector is by no means a speedy process. When the legislation imposing wage restrictions was passed, some groups had been engaged in collective bargaining for several years.

[Lise Zarac, Liberal, LaSalle—Émard, QC]

So then, in your opinion, this is not a valid reason.

[Isabelle Roy]

There is no evidence that with this bill, the process will be more expeditious or more efficient.

[Lise Zarac, Liberal, LaSalle—Émard, QC]

Thank you, Ms. Roy.

I will now turn the floor over to my colleague.

[Maria Minna, Liberal, Beaches—East York, ON]

Merci. Thank you very much.

First I want to say that obviously this is not acceptable. We have talked about pay equity around this table. This committee has put forward pay equity reports before. I don't think there's any question in my mind, anyway, and I know in those of my colleagues, that not only is this not going to do it, but it's going to take us backward.

I just wanted to clarify some things, having said that. I don't want to ask the obvious, because I think I know where we stand on the issue as a whole. My question is, simply, how much do you think FETCO or the private sector had to do with respect to this? They're not covered now, but if they were, they would be wanting the exact same thing, as opposed to a proactive pay equity legislation. Do you feel that to some degree the private element has come into controlling this event?

[The Chair, Liberal, Hedy Fry]

Ms. Ducharme.

[Patty Ducharme]

Thank you.

With respect to the Pay Equity Task Force hearings that took place, I believe over a period of five years, there was an incredible number of briefs and information provided to the task force from the private sector. I believe that the private sector really doesn't value the concept of equal pay for work of equal value and has lobbied very hard to ensure that its broad, proactive application will never really see the light of day in Canada. So I expect that given that we are starting with federal public sector workers, the desire in jurisdictions where there is a more broadly spread application of pay equity legislation will be to have lobbies in those sectors to ensure there is no such legislation.

[Maria Minna, Liberal, Beaches—East York, ON]

I will ask a question maybe to all of you. The minister has consistently said in the House that this act resembles the Ontario act. Does the Ontario act tie market forces to its pay equity legislation?

[Andrée Côté, Women's and Human Rights Officer, Membership Programs Branch, Public Service Alliance of Canada]

Thank you for the question, Ms. Minna.

No, indeed, it does not tie the market force criteria into the legislation. The Ontario legislation is completely different from what's being proposed. It's within a human rights framework. It's a stand-alone, truly proactive piece of legislation; that is, it does impose obligations on the employer to review their pay practices. It imposes a whole procedure to consult with unions, to develop pay equity committees, to identify pay gaps, and to propose a pay equity remedy that will be maintained in time. So it's a complete code on pay equity. Most importantly, it's in a human rights framework.

This has thrown pay equity back to labour relations, as FETCO and other employers have been requesting for a long time, taking it out of a human rights framework.

[Maria Minna, Liberal, Beaches—East York, ON]

So basically there's the fact that the equitable compensation matter is not defined in the act; we don't know what is meant or how it's going to be applied. There's the fact that it's tied to market forces and that it reduces the number of women who actually will be covered. In essence, it not only restricts pay equity to a very small group, but for the group that it does restrict it to, it is actually moving backwards, in reverse, not in a positive way. From everything I've heard and everything I know about it, it actually does not provide pay equity; it does the opposite, because it also caps the amount--as you said, and I didn't appreciate--and the compensation can be withheld.

[The Chair, Liberal, Hedy Fry]

You have 30 seconds, Ms. Minna.

[Maria Minna, Liberal, Beaches—East York, ON]

So just to clarify, with all of these together, essentially it is a denial of pay equity; it is not actually providing pay equity. Am I right?

[Patty Ducharme]

Yes, it reduces the number of people who can actually file complaints and it eliminates their ability to file human rights complaints.

[Maria Minna, Liberal, Beaches—East York, ON]

Thank you, Madam Chair, for now.

[The Chair, Liberal, Hedy Fry]

Ms. Demers.

[Nicole Demers, Bloc, Laval, QC]

I'd like to thank the witnesses for joining us.

As members of the Public Service Alliance of Canada, you must feel very alone right now, knowing that women's groups dedicated to defending your rights can no longer defend or support you, that research can no longer be done to gauge the impact of this type of legislation on women in the public sector, and that women can no longer lobby MPs to back their position. You must feel very alone.

As a labour lawyer, Mr. Grenville-Wood, have you ever been in a situation where you could not defend a person in a human rights complaint without facing the possibility of being fined? Has that every happened to you?

[Geoffrey Grenville-Wood, General Counsel, National Office, Legal Department, Professional Institute of the Public Service of Canada]

I have never found myself in that situation.

This is truly one of the deplorable and unacceptable aspects of this legislation, because we have a duty to defend our members. Sanctions of this nature are really unacceptable. I've never experienced anything like that.