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--