Status of Women Committee on May 28th, 2009

[The Chair, Liberal, Hedy Fry]

Order, please.

We have today two sets of witnesses with us. From the Federally Regulated Employers - Transportation and Communications, FETCO, we have Mr. John Farrell, executive director; and David Olsen, assistant general counsel, legal affairs for Canada Post Corporation.

We also have Syndicat des employés de la Banque laurentienne and Confédération des syndicats nationaux, CSN, and they are on video. Danielle Casara is from Syndicat des employés de la Banque laurentienne and Claudette Charbonneau is from Confédération des syndicats nationaux.

With that, I will begin. I just want to let witnesses know that you each have 10 minutes per group to present and then we will open up for questions from the committee. We will time everyone when we begin.

We will start with Mr. Farrell. Are you and Mr. Olsen going to share your 10 minutes?

[John Farrell, Executive Director, Federally Regulated Employers - Transportation and Communications (FETCO)]

That's correct.

[The Chair, Liberal, Hedy Fry]

Good.

So we will begin with Mr. Farrell. Welcome.

[John Farrell]

It's a pleasure for both of us to be here.

FETCO represents the majority of employers in the private sector under federal jurisdiction, covering railroads, trucking companies, broadcasters, telephone companies, the operation of the ports, the airlines, among others. There are approximately 586,000 employees employed by FETCO member companies, and in our brief, at appendix A, you will find the names of the companies that are members of FETCO.

We recommend that you read our brief as well as the paper written by Professor Paul Weiler that was prepared in June 2002 in support of FETCO's submission to the Bilson task force. This is an integral part of our submission.

First and foremost, federally regulated employers, the members of FETCO, fully support equal pay for work of equal value.

Professor Weiler's paper examines the interplay between equal pay for work of equal value provisions under the Canadian Human Rights Act and the provisions of the Canada Labour Code. It predicted, in 2002, the practical problems employers would face in achieving equal pay for work of equal value in a unionized environment where employers are compelled, by the provisions of the Canada Labour Code, to negotiate compensation provisions bilaterally with the unions representing employees. At the same time, the employers are unilaterally responsible for achieving equal pay for work of equal value for men and women under the provisions of the Canadian Human Rights Act.

The Public Sector Equitable Compensation Act is supported by FETCO because it is a proactive rather than a complaints-based solution that makes both the Treasury Board, as the employer, and the unions representing federal public sector employees equally responsible for achieving equitable compensation by developing and implementing a plan to develop, achieve, and maintain this important human rights and employment objective. It will eliminate the union strategy of double-dipping by negotiating compensation provisions bilaterally and then seeking additional compensation through a complaint to the Canadian Human Rights Commission. This is really the primary reason the FETCO members are in support of this legislation.

Achieving equitable compensation is a human rights matter and an employment matter that requires a human rights and employment-based solution. The Public Service Labour Relations Board, we believe, is well equipped to resolve equitable compensation matters in the workplace. They routinely deal with the parties on an ongoing basis on matters of a similar nature, and the Supreme Court has made it clear that the courts and arbitrators have jurisdiction to address human rights issues. This case is no different.

Those are our introductory remarks. I'll now turn to David Olsen, who has been involved for quite some time in dealing with numerous disputes and proceedings with respect to issues involving both collective bargaining under the Canada Labour Code and the application of the Canadian Human Rights Act in the public sector.

David.

[David Olsen, Assistant General Counsel, Legal Affairs, Canada Post Corporation, Federally Regulated Employers - Transportation and Communications (FETCO)]

Thank you very much, John.

I will repeat, just so there's no misunderstanding, that our organization unequivocally supports the principle of equal pay for work of equal value. Our members have extensive experience with the current regime under section 11 of the Canadian Human Rights Act. We've been deeply involved in these cases for decades. I've personally been involved for over 25 years in a case involving my client, Canada Post Corporation.

There are certain flaws in the current legislation—that is, section 11 of the Canadian Human Rights Act—that have been largely addressed in the Public Sector Equitable Compensation Act. This act, of course, does not apply to the federally regulated sector, so our members are not affected by this legislation. We remain under section 11 of the Canadian Human Rights Act. However, we believe this act contains important principles and sound provisions that will improve the ability of employers and unions in the federal public sector to implement equitable compensation for women that is pragmatic and fair.

This legislation makes sense to FETCO because it integrates equitable compensation, or pay equity, into the collective bargaining process. Secondly, it requires that both employers and unions share responsibility for achieving equitable compensation. Thirdly, the proactive regime provides a more efficient, effective, and equitable problem-solving and dispute resolution process over that in the current Canadian Human Rights Act, which is complaint based and leads to interminable litigation.

The heart of the issue for FETCO has always been the fact that equal pay for work of equal value must be integrated with the collective bargaining process. Like equal pay, the charter freedom of association for employees and the right to a form of collective bargaining is accorded the status of a fundamental human right. Just because both are considered to be sacrosanct does not, in our view, mean they cannot be addressed together. If anything, they must be addressed together in order for both to be balanced and achieved.

I've heard it said that pay equity is not negotiable. We agree, but what we have to recognize is that the best way, many academics say, of achieving pay equity is through the collective bargaining process. That's the forum where wages and benefits are set between a union and management, and in our view, that's the forum in which pay equity must be addressed.

That is the whole thesis of Professor Paul Weiler, who appeared as a witness before the Bilson task force, and we commend his paper to you. Professor Weiler, as you may know, was a famous Canadian academic. He was chair of the British Columbia Labour Relations Board and an expert on comparable worth in the United States while he was at Harvard University, and we do commend his thesis to you.

Section 11 of the Canadian Human Rights Act is poorly drafted. It articulates the general principle that it's discriminatory to pay different wages to men and women performing work of equal value. It has routinely and strategically been leveraged by trade unions as a means by which to effectively reopen collective agreements that they themselves have entered into with employers, in order to then seek additional payment on behalf of female-dominated groups in their union, a second kick at the can, if you like, that flies in the face of the fundamental sanctity of collective bargaining.

Unlike in the non-unionized environment, where it is the employer that makes the unilateral decision about terms and conditions of employment and compensation, in the unionized environment it's the bilateral decision between the union and the employer that sets the terms and conditions of employment. As the Supreme Court of Canada has said, there is no room left for individual bargaining between the employer and the individual employee. It must be done through the trade union as the bargaining agent. It's the two together who decide what compensation is to be paid. If you read Weiler--and I believe this to be true--in most circumstances it is the union that plays the major role in terms of the allocation of wages and benefits that the employer agrees to. It's mostly the union that decides how that money is going to be allocated under the collective agreement.

This is the reality that, in our view, the Canadian Human Rights Act does not recognize. Both pay equity and collective bargaining cover the same activity: the level, structure, nature, and amount of compensation. In the unionized environment, these activities have to be integrated. In Weiler's view, the alternative is to destabilize collective bargaining and to allow pay equity to be used to leverage the gains reached at the bargaining table. As I say, it is elaborated more extensively in our brief and in Weiler's paper.

In Weiler's paper, he states in his conclusions that “my first conclusion is that where disputes arise in employment relationships governed by both the [Canadian Human Rights Act] and the [Canada Labour Code], the bodies responsible for applying the law must read the two statutes together in a fashion that best accommodates these two important federal legal policies”. We say this conclusion applies with equal force to the Public Sector Equitable Compensation Act.

Thank you.

[The Chair, Liberal, Hedy Fry]

Now we're going to hear from Madam Casara, who is the vice-president of the Syndicat des employés de la Banque Laurentienne.

You have 10 minutes.

[Danielle Casara, Vice-President, Syndicat des employés de la Banque laurentienne]

I'd like to begin by thanking the committee for giving us the opportunity to express our opinion and clarify our position, and to give the reasons behind them. Our arguments will not be based on research or legal opinions, but rather on our experience as members of a union and as female workers in the banking sector, which is under federal jurisdiction.

First of all, I'd like to sketch a quick portrait of Local 434 of the Syndicat des employées et employés professionnels-les et de bureau, which has represented the employees of the Banque Laurentienne du Canada since 1967, or for 42 years. We currently represent 2,300 employees who work in a branch, a telephone-banking call centre, the administrative centre or head office. Positions range from branch teller to mortgage arranger, financial adviser and financial planner. Eighty-five percent of our members are women. La Banque Laurentienne is the only unionized bank in Canada. As I said, we are a local of SEBP-Québec, the Syndicat des employées et employés professionnels-les et de bureau du Québec. We are affiliated with the Fédération des travailleurs et travailleuses du Québec (the FTQ), and the CLC.

Just to refresh your memory and provide you with some context, the Canadian banking sector is the largest employer of labour under federal jurisdiction working in the private sector, employing 30% of such labour. Of these employees, 72% are women, compared to 31% in the other sectors of activity under federal jurisdiction. In addition, 48% of female workers under federal jurisdiction are bank personnel, and only 1% of them are unionized. I imagine that this means mainly us.

The wage gap in the banking sector is 36%, one third of which may be attributed to the lack of corrective measures to deal with the systemic pay inequity suffered by women for years.

In our opinion, the impacts of adopting the Public Sector Equitable Compensation Act by the Harper government show the lack of consideration the latter has for the rights of women in general and female workers in particular since pay equity, in our opinion, cannot be equated with a pay increase that can be negotiated within a collective agreement, but is rather a fundamental human right. However, the complaint regime was not really ideal either, since it gave rise to some legal sagas—we need only recall those of Canada Post and Bell Canada—which were hugely expensive for both sides.

To us, the Public Sector Equitable Compensation Act seems retrograde, at a time when the Government of Quebec has just—yesterday—not only kept its Pay Equity Act, but also reinforced it, thus demonstrating that the changes that this law has brought to Quebec are beneficial for society in general and are within the reach of businesses of all sizes, in all sectors, in both the public and private sectors.

The Public Sector Equitable Compensation Act also seems to us to be an expression of contempt for the fundamental rights of women. Furthermore, this led to the filing by women's groups and numerous unions of a complaint with the UN Commission on the Status of Women in March 2009. In 2003, the UN also asked Canada to remedy the pay inequity suffered by female workers under federal jurisdiction. The message sent to employers in the private sector is clear and reinforces their inaction in this area.

As early as April 2002, our Local 434 joined the action, sharing its comments with the Pay Equity Task Force set up in 2001. We related how the Banque Laurentienne had managed to exempt from the Quebec Pay Equity Act the employees of its subsidiary Trust La Laurentienne, who came under provincial jurisdiction. By means of a simple transfer of employees, they succeeded in being exempted from the law that had just been passed.

The report presented in November 2002 by the Canadian Bankers Association to the task force shared the same opinion: pay equity is a recognized value, but it is already achieved in the sector, and no action, legislation or obligation needs to be added.

This episode, from which the bank emerged the winner, caused a lot of bitterness and reinforced our conviction to the effect that only a proactive pay equity act at the federal level would force employers to comply with the principle so that finally our female workers would stop being second-class workers in their own province.

In 2004, after a lot of awareness campaigns, countless resolutions at numerous conventions of the FTQ and the CLC, the task force report finally revealed to us the light at the end of the tunnel: a law that was to be proactive, mandatory, general in scope and offering extensive protection, involving the participation of female workers and unions, providing for maintenance rules, and so on.

In our opinion, the report recommendations, despite the support of the Bloc-québécois, the NDP, the Liberal Women's Caucus and the House of Commons Standing Committee on the Status of Women at the time, took too long to be applied and the arrival of the Harper government spoiled the momentum. Now, it is hammering the last nails into the coffin and disregarding the incredible energies put in on this file over the years, both in human resources and public funds.

In Quebec, if we want to compare businesses in the financial sector, we have the example of Desjardins, the largest private employer in Quebec, which, in spite of Quebec law, refuses to comply with the Pay Equity Act and is prepared to use all the means and all the resources at its disposal to get out of it, as the Banque Laurentienne did in 2002.

Desjardins minimizes the existence of possible gaps by using special evaluation curves, and 388 complaints and disputes were filed by the SEPB with the Commission de l'équité salariale on May 12.

In conclusion, SEPB-434 and its members therefore firmly denounce the adoption of Bill C-10, a real historical setback for the rights of women and workers, and they demand that it be repealed.

We support the struggle that our public sector sisters and their union have undertaken, realizing that the outcome of this struggle will have an impact on all workers in sectors under federal jurisdiction, including our own. This is also why we will continue, with our partners and through our own bodies and our affiliations, to call on all political parties and demand that the government apply the recommendations contained in the report by the federal government's Pay Equity Task Force.

[The Chair, Liberal, Hedy Fry]

Thank you, Ms. Casara.

Ms. Carbonneau, you have the floor.

[Claudette Charbonneau, President, Confédération des syndicats nationaux (CSN)]

Madam Chair, I am very happy that you have invited us today to hear our point of view on a social debate that is of extreme importance, namely that of achieving pay equity.

The CSN represents some 300,000 workers across Canada, who are in very large part concentrated in Quebec. However, some 15,000 of our members are under federal jurisdiction, particularly in the communications, interprovincial transportation, grain elevator and prison sectors.

Bill C-10, in our point of view, is a major affront to the fundamental right of women to recognition of the value of their work, and women have more than one reason to feel offended.

First of all, the government is redefining the very notion of job category so that it can limit the concept of predominantly female job category to jobs that have over 70% women in them. It thus subordinates the right of women to equal pay for work of equal value to the simple wish of their employers.

The bill actually adds to the job evaluation criteria recognized throughout the literature and in all proactive legislation respecting pay equity criteria that reflect the needs of employers pertaining to recruitment and retention of labour. This of course has nothing to do with the imperatives of pay equity—quite the contrary. Pay discrimination is thus allowed if it is justified by market conditions. This is totally unacceptable.

Not satisfied, the government is returning this right to the area of the negotiable, instead of forcing the establishment of actual pay equity programs and ensuring they are maintained. This is therefore no longer a right to have respected, but a working condition to be negotiated. Finally, the responsibility for results will be up to not only employers but also union organizations. Indeed, the bill confers on the Public Service Commission, an agency that has no specific expertise on these issues, the power to determine a compensatory amount to anyone who has been adversely affected. It could force a union to pay part of this amount. So organizations would become responsible for the payment of wages. Clearly this is nonsensical, and we must denounce it and continue to challenge it.

Equally obnoxious is the government's prohibiting union organizations from encouraging women to file complaints and from representing them to obtain justice. But how can the government, in the preamble of the act, state that Parliament feels that women in the federal public sector should receive equal pay for performing work of equal value, and also state that it recognizes that it is desirable to achieve this objective proactively, while proposing such a legislative framework?

Consequently, we are going to ask the government to withdraw these particular provisions on pay equity for the federal public service and to subscribe to the development of a real proactive law on pay equity that will benefit all employees governed by the Canada Labour Code.

Thank you.

[The Chair, Liberal, Hedy Fry]

Thank you.

Now we will begin with the questions.

Madam Zarac, you have seven minutes.

I would like to suggest to the witnesses that the seven minutes include the question and the answer.

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

Thank you, Madam Chair.

I wish to thank the witnesses for being here with us today. The two women representing many thousands of workers are against the announcements made about the budget, while the two men present are in favour of them. I wonder if this is a coincidence.

Mr. Olsen, you said in your presentation that equity is not negotiable. At the same time, you say that pay equity will be settled in negotiations between employers and unions. Wouldn't it thus become one option among so many others in the collective agreement? We're not talking about negotiating pay, but about ensuring pay equity. Equal pay for equal work.

[David Olsen]

As a point of clarification, I'm here as a representative of FETCO and not as counsel to Canada Post Corporation. However, I will draw on the Canada Post example.

In all Canada Post's bargaining units—I should say with the exception of the Canadian Union of Postal Workers, but with the Public Service Alliance, which represents our white-collar workers; the Association of Postal Officials of Canada, which represents our supervisors; and the Canadian Postmasters and Assistants Association, which represents our rural postmasters—what we have done is agree in advance of bargaining on a job evaluation plan, looking at the same criteria that are set out under section 11 of the Canadian Human Rights Act and that are also set out in the equitable compensation act, using skill, effort, responsibility, and working conditions. We've agreed on a gender-neutral plan, pre-bargaining, and we've worked out the relative values of the jobs in the bargaining unit.

That is then brought to the bargaining table, where the parties hopefully agree on wages and benefits for those employed. I believe it's worked fairly well.

So basically, the achievement of equal pay for work of equal value is done through the collective bargaining process. That's how it works. That's how it worked in our environment anyway.

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

The exercise takes place within negotiations, but don't you think it would be appropriate to do it outside the agreement?

[David Olsen]

At the bargaining table, that is where.... Again, as I said earlier, picking up on a theme from Professor Weiler, it's the union and management, the employer, at the bargaining table—I'm not talking about the non-unionized sector. That's where the terms and conditions and all the issues you look at in equal pay are all determined, at that bargaining table.

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

You don't think that responsibility for pay equity is the employer's responsibility.

[David Olsen]

Most certainly. I think it's both parties, because as Weiler—and I think anyone who's familiar with collective bargaining—says, for the most part, at least in my environment, it is the trade union.... The employer has a budget. It has a mandate of how much money it can afford.

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

Should they give less to the—

[David Olsen]

Let me finish, please. There's so much money it can devote to a round of bargaining and to reach a collective agreement, hopefully without a strike, and then you can forget about the economic sanctions. It's usually the union that decides where that money is going to be spent.

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

I understand that, that you're talking about the salary. I'm not talking about the salary. Well, the negotiation is about salary. I think it's—

[David Olsen]

No, no, I'm talking about salary and benefits. I mean, it's the union that makes—

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

We shouldn't confuse the two. Thank you, Mr. Olsen.

Do I still have time, Madam Chair? I'd like to ask Ms. Casara or Ms. Carbonneau a question.

The Government of Quebec has revised its Pay Equity Act. I'd like to hear your comments on this new law.

[Claudette Carbonneau]

The Quebec act, originally, was one of the most encompassing laws in Canada. It covered the public and private sectors. But it contained a number of ambiguities. In fact, a few years after it was passed, about 50% of businesses still had not implemented the equity process. These businesses were given a second chance. Now, however, should they not fulfil their obligations, the bill provides for penalties. So it's an improvement.

In my opinion, one of the good things about the bill was that it clarified the concept of maintaining pay equity. It's one thing to establish a right, but we have to make sure, given that it's a fundamental right, that it's maintained over the years. Accordingly, a certain number of guidelines made available to the parties was completely appropriate. This is really a very short summary of the advances made, but concerning the question you asked the previous speaker, I can tell you that the Quebec bill never brought equity back to the level of something negotiable.

Where there is a union, we want the development of pay equity to be a participatory process. There's no doubt about that. It's not an exact science. We want the development of evaluation programs to be devoid of sexist biases, but the parties' assessments have to be taken into account. However, there's a fundamental difference: if the parties are not in agreement that women's rights are fully respected, it's always possible to refer the matter to a third party. We don't let the power relationship or strictly financial considerations determine the issue.

[Danielle Casara]

From the moment a market value is attached to a fundamental right, it won't work. As far as the Quebec law is concerned, the FTQ was very satisfied. Most of the arrangements are included in it.

[The Chair, Liberal, Hedy Fry]

Can we wrap it up, please. I'm sorry, we have gone a full minute over time.

Madame Demers.

[Nicole Demers, Bloc, Laval, QC]

Thank you, Madam Chair.

Ladies, gentlemen, thank you for being here today.

Mr. Olsen, listening to you and then listening to Ms. Casara and Ms. Carbonneau, I could not help noting how divergent your respective points of view are. Still, Ms. Casara works in the banking community. It's also an area that you cover, if I'm not mistaken, since some 30% of the employees to whom you are connected come from banks. But Ms. Casara perceives the provisions on pay equity, as they are specified in Bill C-10, in a totally different way from you.

I'd like to point out to you that, at Canada Post, women workers have been struggling for 26 years to get pay equity, actually because, since this question is not negotiated, the issues is never settled. Ms. Casara says that the unions should not be responsible for the success or failure of negotiations dealing with this issue, because it's a right. It is indeed a right. Ms. Casara and Ms. Carbonneau are unionists.

How do you explain that your statements diverge so far from theirs? In my opinion, it's not because you're a man, but rather that you're an employer.