Status of Women Committee on June 4th, 2009

[The Vice-Chair, Conservative, Patricia Davidson]

I will now call this meeting to order.

We do have some witnesses appearing on video conference today and we have some who are with us in person. I welcome Susan Russell from the Canadian Federation of University Women; Margot Young, who will be joining us by video, from the University of British Columbia; and Joanna Birenbaum from the Women's Legal Education and Action Fund.

Ms. Russell, you're representing the National Association of Women and the Law as well.

Thank you very much.

We will begin our presentations with Ms. Russell, please.

[Susan Russell, Executive Director, Canadian Federation of University Women]

Thank you.

On behalf of the membership of the Canadian Federation of University Women and the National Association of Women and the Law, we thank you for this opportunity to present today.

CFUW is a non-partisan, self-funded organization with over 10,000 women graduates and students in 118 clubs in across Canada. We work to further women's human rights and education globally. The National Association of Women and the Law is a national non-profit women's organization that promotes the equality rights of women through legal education, research, and law reform advocacy.

Our concern today over the Public Sector Equitable Compensation Act begins with its introduction as part of the 2009 budget package. Parliament was not able to evaluate the legislation independently of the budget. Given that the law aims to change existing legislation on pay equity for the federal public service in a manner that is not endorsed by labour unions or women's groups, this is cause for alarm.

I will list some points of particular concern with regard to the legislation itself.

First, the act suggests that “equitable compensation” should replace “pay equity”. These are not equivalent terms. Pay equity is a fundamental human right enshrined in such things as the Convention on the Elimination of All Forms of Discrimination against Women and the International Covenant on Economic, Social and Cultural Rights. Equitable compensation is not defined in the act. As a legal concept, equitable compensation is also untested by domestic and international human rights law.

Further, the act seeks to change the generally accepted criteria used to evaluate whether or not a female job is of equal value to a male job by inserting the words “market forces” into evaluations. When it is these same market forces that create wage inequity in the first place, it is ill-advised to include them in legislation claiming to create equitable compensation.

The act represents a deliberate marginalization of the 2004 pay equity task force report. In 2001 a federal pay equity task force was established. After thorough review and consultation with the stakeholders, this task force made recommendations for a new proactive pay equity system that included a pay equity commission and tribunal. These recommendations were widely supported by unions, women's advocates, and employers. It is dismaying to see the work and consensus built up through that process being pushed aside in favour of the regressive provisions of the Public Sector Equitable Compensation Act.

This act leads to confusion between negotiated equitable compensation and proactive pay equity legislation. For example, on February 25, 2009, the Honourable Vic Toews, President of the Treasury Board, responded to a question in the House by stating, “We are simply following the recommendations of the Liberal task force in 2004 that said proactive pay equity legislation was needed.” This is a misleading statement.

The new legislation was compared to the actual recommendations in the task force itself. The task force report explicitly recommended that the process for achieving pay equity be separated from the process for negotiating collective agreements. The new legislation makes unions and employers jointly responsible for negotiating equitable compensation despite the fact that unions have no control over whether federal money is spent fairly on compensating women working in the public service.

Likewise, the Public Sector Equitable Compensation Act sets out equitable compensation as one issue to be discussed along with all other collective bargaining issues, rather than something to be treated separately, as it is in Manitoba. This means that the right to be free from sex discrimination in pay could be bargained away, because other issues are of more importance to the employer or to the union.

The act contains a clause that removes the right of public sector workers to file complaints on pay equity with the Canadian Human Rights Commission, thereby effectively removing pay equity as a human right of federal government employees. The act imposes a $50,000 fine on any union that would encourage or assist a member in filing a complaint, despite the fact that under Canadian labour law, unions are legally required to represent all of their members, including women. The individualistic approach taken by the act is deeply problematic because, by definition, pay equity complaints are group complaints reflecting systemic discrimination. Moreover, preventing unions from assisting in complaints means that both non-unionized and unionized women will lack the resources and information about pay rates and job descriptions needed to make a viable complaint to the Public Service Labour Relations Board.

The act defines a female-dominated group as one in which 70% of the workers are women. Only those groups can seek equitable compensation. This is a rigid definition that does nothing for job groups whose membership is 51% to 69% women. The legislation also restricts comparisons of male and female job groups so narrowly that comparisons can only be made within defined segments of the federal public service, or within federal agencies, and not across the public service as a whole.

CFUW and NAWL agree there are problems with the current pay equity regime. It is long, complex, and often unresponsive to the needs of women. However, this act does not address these problems.

Pay equity is a fundamental human right to be protected, affirmed, and championed by Parliament, as it is in legislation such as the Canadian Human Rights Act, which has recognized pay equity as a right since 1977. The Public Sector Equitable Compensation Act is a dangerous move backward that effectively removes pay equity from the realm of guaranteed human rights.

We urge the committee to adopt recommendations that reflect the urgency of protecting Canadian women workers from the fundamental injustices enshrined within this law.

Thank you very much for this opportunity.

[The Vice-Chair, Conservative, Patricia Davidson]

Thank you very much, Ms. Russell.

We will now move to our second presenter, Ms. Birenbaum, please.

[Joanna Birenbaum, Director of Litigation, Women's Legal Education and Action Fund]

Good morning. Thank you very much for this opportunity.

The Women's Legal Education and Action Fund, LEAF, is a national, not-for-profit organization dedicated to promoting substantive equality for women and girls in Canada through legal action, research, and public education. LEAF has intervened in over 150 cases on substantive equality at the Supreme Court and at other levels and is recognized for its expertise on the inequality experienced by women in Canada.

Central to LEAF's commitment to substantive equality is addressing the inequalities suffered by women who experience discrimination on multiple and intersecting grounds, such as on the basis of aboriginal identity, race, poverty, disability, sexual orientation, and religion.

LEAF is very concerned by the Public Sector Equitable Compensation Act, or PSECA. The act constitutes regressive legislation that substantially erodes the fundamental human right of women who work in the federal public sector to equal pay for work of equal value.

Before discussing LEAF's concerns with the legislation, I wish briefly to emphasize the significance of pay equity for women in terms of achieving substantive equality for women in Canada.

The gender pay gap remains a pervasive reality for women across Canada. On average, women working full time earn 71% of what men earn. Women of colour earn 68% and aboriginal women earn a startling 46% of what men are paid. Sex-based wage discrimination devalues women and their work and is integrally related to other forms of employment discrimination against women, including occupational segregation, barriers to advancement, sexual harassment, and involuntary part-time employment, such that women's participation in the labour force is characterized by inequality.

Pay inequity also exacerbates women's vulnerability in ways that include increasing their financial dependence on men, even in situations where they are at risk of abuse or violence.

Discriminatory wages result in discriminatory pensions and discriminatory disability benefits. Pay equity is important for aboriginal women, younger and older women, immigrant women, women with disabilities, and women who experience racialized gender discrimination, because they are often segregated into the lowest-paid jobs, where wages are most affected by stereotyping.

As Susan Russell has already said, the right of women to pay equity has been enshrined in the Canadian Human Rights Act for 32 years. The Supreme Court of Canada has repeatedly confirmed that statutory human rights have quasi-constitutional status in Canada. The rights of women to be free from wage discrimination in the workplace and to equal pay for work of equal value are also guaranteed by section 15 of the charter, the equality rights guarantee.

In the NAPE case in 2004, the Supreme Court of Canada ruled that the cancellation of pay equity adjustments to government employees violated their section 15 equality rights, but in the specific circumstances of that case upheld the violation. Numerous international instruments ratified by Canada also recognize pay equity—and we emphasize “pay equity”, for the words “equitable compensation” are new—as a fundamental human right. These include the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Economic, Social and Cultural Rights, and Conventions 100 on equal remuneration and 111 on non-discrimination of the International Labour Organization. These ILO conventions were ratified by Canada in 1951 and 1958 respectively.

In LEAF'S view, the PSECA is not consistent with Canada's statutory, constitutional, and international commitments and obligations to women's substantive equality. Prior to today, and also today, this committee has heard numerous submissions from unions and experts who have detailed the ways in which the PSECA takes away, rather than advances, the right of equality, the right of pay equity for federal public sector workers.

LEAF also refers the committee to the February 26, 2009, open letter to Stephen Harper by, among others, twelve recipients of the Governor General's Award in Commemoration of the Persons Case. That letter was also signed by the witness Margot Young. I provided copies to the clerk, although not translated, so you don't have them in front of you today.

LEAF supports the analyses submitted to this committee to date indicating that the act is inconsistent with women's statutory and constitutional equality rights for reasons that include: one, the act makes pay equity a matter of labour relations in collective bargaining, as opposed to an independent human right; two, the act makes the assessment of equitable compensation contingent on market forces, which are deeply influenced by the very gender biases and undervaluing of women's work that pay equity legislation is designed to challenge and overcome; three, the act narrows the right of pay equity, by limiting the scope of the right and by restricting comparisons of male and female job groups; and four, by making pay equity a joint responsibility of the union and employer, the act ignores the government's ultimate control over the purse strings in setting wage rates and it relieves the government of independent and ultimate responsibility for creating a workplace free from wage and other discrimination.

The act also ignores the systemic, relative powerlessness of women-dominated job groups in the collective bargaining process. While some unions have effectively achieved pay equity gains for their members, women's pay equity rights are highly susceptible to being traded away at the bargaining table.

LEAF wishes to use the remainder of its time to focus on three further issues.

First, LEAF is very concerned by the act's removal of any effective mechanism to enforce pay equity rights. If pay equity is not achieved through the collective bargaining process, women workers are left only with the option of making an individual complaint to the Public Service Labour Relations Board, which is not a specialized pay equity body. Claims that categories of jobs are subject to pay inequity are complex and technical and require significant information on job descriptions and pay rates. Yet under the act complainants receive no institutional or other support to investigate and advance such claims. Unions are fined $50,000 for assisting or encouraging their members. Accordingly, for public sector workers, pay equity is for all practical purposes a radically diminished right without a remedy.

Second, LEAF is concerned about the broader implications of the legislation. The federal government should be taking a leadership role in advancing women's human rights. Instead, this legislation would seem to be one in a series of regressive measures that have included funding cuts to Status of Women Canada and the elimination of the court challenges program. These measures all detrimentally affect women's access to justice and the ability to advocate for and enforce their statutory and constitutional equality rights.

Third, the PSECA applies to the approximately 278,000 workers in the federal public service. It does not cover the approximately 840,000 workers in the federal private service, who remain under the Canadian Human Rights Act complaints-based regime. While the CHRA regime is preferable to the PSECA, in that it accords pay equity its proper status as an independent and enforceable right, the problems of the complaints-based regime are well known to this committee.

Since 2004, equality advocates, including LEAF, have pushed for the implementation of the recommendations of the pay equity task force for a proactive pay equity regime. With the PSECA legislation, we now have two federal regimes, neither of which is proactive and neither of which is designed to efficiently and effectively achieve pay equity for women. The federal government has stated that it is committed to achieving pay equity. If this is in fact the intention—and we very much assume that it is—the way to do so is to adopt a single, proactive federal pay equity regime in accordance with the recommendations of the pay equity task force.

We similarly request this committee to make recommendations that are consistent with that.

Thank you very much.

[The Vice-Chair, Conservative, Patricia Davidson]

Thank you very much for your presentation.

We will now go to the third presenter, Margot Young, appearing as an individual.

[Professor Margot Young, Associate Professor of Law, University of British Columbia, As an Individual]

Thanks.

I'm an associate professor at the Faculty of Law at the University of British Columbia, where I teach in research, primarily in the area of constitutional law, with a focus on women's equality issues, social justice, and law and poverty.

I want to begin today by providing what I think is an unavoidable conclusion about this new statute; namely, that at a practical level, the statute is contradictory. It doesn't set out to accomplish what the government has used in its promotion and characterization of it. It is not an improvement on the existing, already flawed system of pay equity enforcement. Rather, it is a step backward, and not a step forward, in terms of proactivity or more effective enforcement.

I do also think that the act is ideologically very clear. It is clearly about a minimization of a key equality right for women, a right that is internationally recognized and that decades have been spent trying to advance. It is also clearly an enshrinement of a marketization of the issues. This comes at a time when we know already very clearly that the neo-liberal market capitalism that this kind of policy and statutory change represents has indisputably been profoundly problematic for economic and social governance issues and for economic and social justice.

This statute individualizes a problem that is systemic in origin. The result is that it quite clearly mocks and denies decades of hard work done to achieve labour market equality for women. I would note as well the key importance of equality in the labour market to women's general economic and social and civil equality in Canadian society.

With those introductory comments, I want to begin by talking about some more specific issues that the statute raises, but I want to do so against a backdrop of three broad observations.

The first observation pertains to women's ongoing and persistent economic inequality and marginalization, particularly the marginalization of key groups of women, as the other witnesses have spoken about—racialized women, women with disabilities, aboriginal women--in Canadian society. The role the government ought to play in addressing that inequality is also an important backdrop to consideration of the specifics of the federal government's legislation on pay equity in the public sector.

The second observation I want to have function as a backdrop to my more precise comments consists of reference to Canada's international and domestic obligations to women's equality, and in particular the importance of pay equity to substantive equality for women as various legal and quasi-legal documents at the international and domestic levels establish that equality.

The last broad point I wish to make is that pay equity has long and uncontroversially been recognized as a right. Recognizing a claim or an issue as a right means that certain characteristics require specific legislative and governmental responses. Indeed, as I go through my specific issues, I hope to point out the way in which the formal characterization of pay equity as a right is belied by the practical details of this new piece of legislation.

Let me begin, then, just by situating this moment in the history of pay equity or in the history of equality in employment in Canada specifically. I want to begin my comments by reminding us all of the 1984 Rosalie Abella report, the equality in employment royal commission. The terms of reference for this report required the commission to explore the most efficient, effective, and equitable means of promoting equality in employment for four groups: women, native peoples, disabled persons, and visible minorities.

In this report, Abella observes early on that equality in employment for women means a number of things. On page 4 of this report, she notes that it means taking women “seriously as workers and not assuming that their primary interests lie away from the workplace”. She goes on to say that “this means the active recruitment of women into the fullest range of employment opportunities”, including equal pay for work of equal value, fair consideration for promotions, participation in policy-making, accessible child care, paid parental leaves, and equal pension and benefits. You'll see that in this list that Abella generates, pay equity occupies a central place.

I want to remind us that an important piece of what's required for equality employment is the guarantee of pay equity for women. I also want to say that pay equity, of course, is not the only element that's required and that we should situate our concern about pay equity in the broader context of other issues that are also important to women in achieving equality in employment. I would emphasize the child care issue, which I know your committee has looked at already.

When Abella wrote her report, she noted that at the time of writing, the situation with respect to pay equity was distressing and that “a massive policy response” to achieve equal pay for work of equal value was required. She noted that the federal Human Rights Act applies to only 11% of the Canadian workforce and that provincial coverage and also coverage for the private sector at the federal level were limited.

When we fast-forward to today, we see that the situation with respect to equal pay for work of equal value is not that different from the one described by Abella in her report. Across both federal and provincial governments, we see a distressing lack of proactive government attention to meeting this important requirement for women's equality in the labour market.

That brings me, of course, to the most recent development at the federal level, the Equitable Compensation Act. I have several observations that I want to make in relation to it, specific features of the legislative changes that are particularly disturbing and that cast a shadow over the status of pay equity as a right for Canadian women.

I want to begin by noting what the two other witnesses have also noted, that the changed legislative criteria for equitable compensation adopt the criteria set out in section 11 of the Canadian Human Rights Act, but importantly add to it the fact that market conditions will also be looked to in terms of establishing whether or not there is pay equity. The adoption of criteria of employers, recruitment needs, and other sorts of market considerations completely, I think, undermine the commitment to equal pay for work of equal value. As other witnesses today--and I am sure throughout your hearings--have pointed out, taking into the evaluation precisely the features that resulted in the discriminatory situation that needs to be remedied in the first place is so obviously problematic as to indicate a really clear intention to undermine the achievement of pay equity for women. The individuals who occupy job groups with pay inequity are among the more vulnerable in the market and the most vulnerable to the market forces. Indeed, reference to the market in this manner will serve simply to entrench sex discrimination, not to correct it.

I would just point out to the committee an interesting parallel development in human rights law in British Columbia--

[The Vice-Chair, Conservative, Patricia Davidson]

I'm going to interrupt you for just a second, please. I just want to remind you that your time is almost up. You have less than one minute left.

Thank you.

[Prof. Margot Young]

Okay, thanks.

There is a situation in the building of the new Olympic subway. Workers who came from Latin America on temporary visas were paid less than workers who came on temporary visas from Europe. That's another illustration of differential pay rates based not on gender discrimination but on forms of discrimination that are endemic to the market.

To conclude, I will simply note some of the other factors that you've had people speak about already: the restriction of what job group will count as female-dominated; the assignment of joint responsibility to both employers and unions, which really doesn't fit a model of rights; the reliance on the collective bargaining process, and the fact that rights are not something that are put in a situation in which they've been traded away or compromised; the denial of assistance and the contradiction that presents in terms of other international obligations Canada has specifically under the declaration on the rights of human rights defenders to provide assistance for defending human rights; and again the broader--

[The Vice-Chair, Conservative, Patricia Davidson]

Sorry, but I am going to have to cut you off there to be fair to everyone.

[Prof. Margot Young]

That's totally fine. I was just going to point out the broader backdrop of international rights, and I'll finish.

[The Vice-Chair, Conservative, Patricia Davidson]

Perhaps your points will be brought out in questioning.

[Prof. Margot Young]

That's fine.

[The Vice-Chair, Conservative, Patricia Davidson]

We'll go to our first round of questioning for seven minutes.

Ms. Zarac, please.

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

Welcome to our witnesses. Thank you for your comments.

I have so many questions that I almost do not know where to begin. You all stated that work on pay equity for women has been going on for decades. According to the statistics, even after decades of work in this area, women still earn between 48% and 71% of what men earn. That is cause for some concern.

Ms. Young talked about our international responsibility. Canada is often viewed as a model to emulate in light of its Constitution which is studied around the world. We should continue to set an example.

However, Ms. Young, you did observe that Canada was in fact not setting an example, given the changes to the Public Sector Equitable Compensation Act. You were also wondering if, based in Ms. Abella's 1984 report, women are taken seriously in the workforce.

I'd like you to elaborate on that statement. Do you seriously believe that women are considered to be men's equals in the workforce?

I heard you say they're not taken as serious workers.

[Prof. Margot Young]

I think that's a really important question.

One of the remarkable things about the change in the workforce pattern over the 20th century is the dramatic increase in women's involvement in the labour force, which is not to say there haven't always been women working outside the home in the paid labour force, but that we have seen large numbers of women entering the labour force and those numbers growing throughout the 20th century.

Pay equity is a critical condition of women receiving equal treatment and achieving equity in the labour market. So when you ask if women are treated equitably, I think the statistics are clear that we have a pay inequity problem. We have many other problems as well with respect to women's involvement in the labour force, such as the placement of women overwhelmingly in precarious labour situations, inadequate child care, and lots of employment standards issues.

So I do think there's a huge constellation of issues around women's equality in the employment market that still persists and that is still deeply troubling and problematic.

Have I answered your question?

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

Yes, thank you, Ms. Young.

My question is for all three of you. Who is responsible for pay equity? Who has the authority and the responsibility to ensure equity? Is it the employer, the union, or the government? In your opinion, who is responsible for ensuring equity?

[Prof. Margot Young]

Who wants to go first?

[Joanna Birenbaum]

I'll start, and I'm sure, Margot, you'll have additional comments.

In some ways it's a difficult question, because what do we mean by responsibility and power? At the broadest level, we all have some role and responsibility. Unions have a role, the government has a role, employers have a role, but the question is, how does that role get shaped and framed?

The government's role is to enact appropriately rights-based legislation with, in LEAF's view, a specialized pay equity body that would be appropriately resourced with the powers to both investigate complaints or issues, and to assist in the resolution of issues and the development of pay equity plans, and so on.

The employer and employees, whether it's the employees or the union, have a role and responsibility to work in good faith and collaboratively to create pay equity plans, but within the legislative framework similar to the pay equity regime—

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

...and not as part of the collective bargaining process. Is that what you are saying?

[Joanna Birenbaum]

That's correct. It is inappropriate for the current legislation to allocate legislative responsibility to unions over matters that they don't ultimately have any control over.

Margot or Susan Russell may have some additional comments.

[Prof. Margot Young]

I'm happy to jump in, but go ahead, Susan.

[Susan Russell]

In my view, the government has several responsibilities, the first of which is to enact good laws that abide by the human rights conventions to which we are signatory. I think this is absolutely crucial.

I suspect that this law was formulated without full consideration to those human rights commitments. I don't think it was enacted in bad faith, but I think full consideration to obligations to which we were already a state party was not given. This is why CFUW and NAWL had a problem with it being bundled into the budget. It effectively takes away a right that has been enshrined in the Constitution.

That is where I see the government's responsibility, to make sure that the laws are good and do not infringe on or take away any current human rights, and indeed to advance human rights wherever possible.

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

Would you care to add to that, Ms. Young?

[The Vice-Chair, Conservative, Patricia Davidson]

Just very briefly, please.

[Prof. Margot Young]

Very clearly the responsibility lies with the government. In this specific context, it lies with the government both as government per se and also as employer.

It would be odd to say that you would place on an individual whose rights have been infringed the responsibility to enforce and to ensure those rights. We turn to the perpetrator of discrimination to take responsibility for that discrimination, not to the individuals who are discriminated against, who typically are more vulnerable and don't have either control over the situation or power, economically or socially.

First off, then, very clearly responsibility lies with the government. I would also say that there is a clear recognition...although it's one that's been under challenge for the last 30 years, and under challenge in a way that has shown to be fundamentally wrong, with what's happened in terms of unregulated markets. But we--