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Guest Blog: Morgan on the Federal Reforms to Pay Equity

I have mentioned the Conservative governments’ impending reforms of the Federal pay equity model in a number of earlier posts.   Last week, I querried whether parts of the proposed Federal budget legislation, including the wage rollback for unionized workers, violates the Charter and Canada’s international law obligations.   In this Guest Blog, Ottawa-based human rights lawyer Rosemary Morgan expands on this debate, developing the argument why the changes to the pay equity model in the proposed budget also may violate the Charter and ILO Conventions.   Given that the cost savings from these initiatives are a mere drop in the bucket for a country facing a recession, why do you think that the Harper government insists on fighting these battles?

Rosemary is previously legal counsel to the Canadian Human Rights Commission (1991-2000) and acted as legal counsel on several significant pay equity cases.  Here is her Guest Blog. 

A summary critique of the Public Sector Equitable Compensation Act – Part II of the Budget Implementation Act, 2009 – the elimination of pay equity for the public sector

Arguably there are several flaws in this proposed budget legislation that ought to be further examined and debated before this legislation is given assent.  Allow me to elaborate on each of them.

1) Human Rights are not negotiable

In 1985 the S.C.C. in Winnipeg School Division No. 1 v. Craton [1985] 2 S.C.R. 150), accepted the fundamental principle, and adopted as a precept that human rights are non-negotiable.  In other words, no one, including the legislature can contract out of human rights.  This means that a union cannot negotiate a lesser right or standard for its members than the rights enshrined in human rights legislation.  Years of legal and human rights advocacy achieved the enshrinement of this principle in Supreme Court jurisprudence. 

2)      This is not proactive legislation

The Conservative Government has claimed that they have introduced proactive legislation to eliminate discriminatory wages.  They cite Manitoba and Quebec legislation as models.  In no way does this legislation resemble a proactive model.  This legislation lacks the fundamental features of a proactive model including:

  • There are no set obligations on the parties to a collective agreement (or to employers and employees in non-unionized workplaces) to engage in a specified pay equity analysis and development of a plan for removal of discriminatory wages unless one party can reasonably demonstrate on evidence that there is a non-allowable wage differential.  More particular, while the legislation does call for the parties to review the wage practices if one of the parties raises it at the table, and if one of the parties can establish that there are gender predominant groups that fit the strict 70% rule of this regressive legislation, and if one of the parties can establish a reasonable claim of inequitable compensation between the groups, then a negotiation process may lead to a plan for redress.  But this will not happen if, for example, an economically beleaguered union, or an individual employee without significant resources, cannot rally the evidence to meet the reasonableness standard, what ever that standard might be.  In other words, in the absence of an obligation on employers to proactively engage in a particular and well-defined program for review and identification of wage inequities, it is unlikely to happen.  [This is in complete contrast to Quebec legislation which has timetables for obligations to engage in a proactive process of wage and value assessment without the burden being placed solely on the disenfranchised employee or the ill-equipped union.
  • If unionized employees feel that their employer or bargaining agent have not met the terms of the legislation, they can complain to the Board, but they must first rally sufficient evidence, without the aid of their bargaining agent, (bargaining agents are prohibited from assisting their members in filing a complaint) to convince the Board that there is a failure to comply with the legislation.  This burden on employees would be less likely where true proactive legislation required the joint-development (at the employer’s expense) of a pay equity review and plan as found in various provincial and other state models.
  •  The legislation does not ensure that any pay equity plan is established in a reasonable time period.  And if the matter is not raised during the life of the collective agreement, the opportunity to redress any wage losses during the life of that agreement is lost forever.  While the legislation speaks to engaging in some kind of process during the life of the collective agreement, where they do not do so, and where a dispute is brought before the Board, if the Board concludes that they must do so, the Board is not obligated to impose costs sanctions or other financial penalties on employers who fail to act in a timely manner.  This is more likely to reward a recalcitrant employer. Without significant incentives (or disincentives to breach obligations), employers have consistently revealed their practice: they will not act

 

In other words, despite the strong recommendation of the 2001-2004 Federal Task Force on Pay Equity (headed by Professor Beth Bilson of University of Saskatchewan Faculty of Law), the government has not implemented a proactive model to redress systemic and systematic wage discrimination against women (and others).

3)      Breach of Canada’s obligations to International Conventions

Canada committed to both the Convention on the Elimination of all forms of Discrimination, and the ILO Convention 100 several decades ago.  This commitment led to the establishment of the Canadian Human Rights Act, 1978, which included various provisions for dealing with both direct and systemic wage discrimination against women and other groups (ss. 7, 10 (all groups) and 11 (women) of the Canadian Human Rights Act).  This new legislation, contained in a document which seeks to address budgetary concerns, is outside the human rights framework of either the domestic legislation or the international commitments.  But more importantly, it results in a differential framework for public servants compared to non-public servants.  In this legislation, unionized public sector employees have less protection than non-public sector employees because they no longer have the following rights:

a)      Representation for unionized employees (or any other form of assistance) before an adjudicator by the bargaining agent in complaints of wage inequity.  Not only are unions precluded from assisting their members in filing complaints of wage discrimination, they will be fined if they are found to have promoted or provided assistance in any way before or during the complaint process.  Assistance is a broad and undefined word. 

b)      any Canadian Human Rights Act s.11 (or s. 7 or s. 10 if concerning wage discrimination) complaints filed by public sector employees or their bargaining agents with the Canadian Human Rights Commission before the coming into force of this new legislation will have their complaints transferred to the Public Service Labour Relations Board forthwith.  This makes this legislation retrospective and effectively removes vested rights.  The practical (and legal) consequence is that these employees, in contrast to non-public sector employees lose their vested rights to wage losses arising from the date of the filing of their complaints (or earlier).  The PSLRB (the “Board”), unlike the Canadian Human Rights Tribunal under the Canadian Human Rights Act, has no power to make an order for wage loss compensation going back to the date of those complaints.  In other words, the PSLRB under this new legislation shall disregard the evidence of long-standing continuing systemic discrimination, and is precluded from reasonably redressing historic discrimination or its continuing effects.  This results in differential rights for public-sector employees, and arguably breaches the commitment to freedom from wage discrimination because the effect of the historic wage discrimination will be un-remediated.  That effect necessarily includes differential and discriminatory impact on pension fund contributions and other benefits as well as on earning potential generally.

The legislation further breaches Canada’s international obligations because, as other unions and advocacy groups have argued, the taking away of fundamental human rights in a budget document, represents this government’s view that pay equity is a matter of budget allocation, not a human right.  Contrary to the findings of numerous human rights boards and courts, pay equity is a fundamental human right.  Boards have ruled that the attempt to set wages based upon the market can lead to discrimination and may not be justified.  Yet this legislation gives employers the ability through numerous provisions to prevent the achievement of pay equity and to hide behind market forces (market differentials).  Moreover, employers can unilaterally determine the identity and composition of job groups and classes, and thereby prevent comparisons between pay groups by preventing the determination of gender-predominant work in any group.  Effectively this will allow employers in many cases to prevent the comparison of work value and pay.  The ability of employees and their bargaining agents to demonstrate the existence of pay discrimination is seriously abridged by this legislation.

In 1977 the Canadian government created the Canadian Human Rights Commission (and its independent Tribunal as an expert body, a watchdog to ensure its compliance with its international human rights obligations. Now it has, without consultation with the Commission, without consultation with the public, eliminated public servants' recourse to this body and eliminated that body's watchdog powers in respect of the entire federal public sector.  

4)      Breach of s. 15 of the Canadian Charter of Rights and Freedoms  

The same provisions and their effects that result in a breach by this government to Canada’s commitment to ILO and UN Conventions and Resolutions may result in a breach of s. 15 of the Charter.  The differential treatment of public-sector employees and the failure to ensure prevention and elimination in any reasonable manner of the historic effects of wage discrimination, constitutes a significant breach of the right to equality.  Women in the public sector will remain without meaningful recourse to wage equity, and without any opportunity to remedy the continuing effects (such as pension inequities) of historic discrimination. The capping of a remedy in itself may found a Charter breach. The elimination of their vested rights under the Canadian Human Rights Act further aggravates this breach of the Charter.

5)      Breach of constitutionally protected labour rights

The entire labour relations regime is governed by principles set out in federal (and provincial) labour legislation.  The S.C.C. recently confirmed (in the B.C. Health Services decision of June 8, 2007) the historic nature of the rights enshrined in this legislation and concluded that these rights are deserving of constitutional protection.  Yet this budget legislation eliminates the right of workers to representation by their bargaining agent in complaints of pay discrimination. It is apparent too that the terms of this legislation creates an oppressive regime that effectively eliminates meaningful bargaining.  It is arguable that the effect of this legislation is comparable in its constitutional breach to the effect of that B.C. legislation found unconstitutional in 2007.  In the very same omni-bus bill (Budget Implementation Act) that contains the Public Sector Equitable Compensation Act, there is also the legislation capping federal public servants salary increases for four years.  How can there be any reasonable negotiation to eliminate wage inequality when the legislation creating the timetable and structure for such negotiations also caps the possibility of any resolution of the discrimination through wage adjustment? [See the Expenditures Restraint Act, sections 6, 16, 17, 28 and 56]

Moreover, the right to strike is impeded if not eliminated by this legislation.  While the parties to a collective agreement are required to act on a pay equity negotiation exercise if one or both raise the issue, or if an employee brings forward the issue (in some cases), the failure to achieve agreement does not per se engage the right to strike.  Rather, the legislation limits referral to either an agreed upon arbitrator or the PSLRB (where there is no guarantee of pay equity or human rights experts, an options for appeal to the courts limited.

6)      Breach of democratic rights and principles

Abrogation of security of vested human and other fundamental legal rights: the Rule of Law is undermined by this legislation through the retroactive scope of its operation.  Even currently filed complaints before the Canadian Human Rights Commission will have to be transferred to a non-expert body with lesser powers of redress.  There is no notwithstanding the Charter language in the Public Sector Equitable Compensation Act to allow or justify this retroactive elimination of vested rights. (Instead they have used a notwithstanding the Canadian Human Rights Act clause). 

Additionally, the elimination of vested rights under quasi-constitutional legislation (the Canadian Human Rights Act) by embedding it in Budget legislation is likely to result in a failure to ensure a full and meaningful democratic debate on these fundamental rights and the loss of same (assuming the official opposition does nothing).  The government is engaging in slight of hand by hiding in a dense and incomprehensible document the truth which belies their claim of respecting human rights for women and of creation of a proactive model.  The enactment of the Canadian Human Rights Act and section 11 (equal pay for work of equal value) was preceded by years of study, advocacy and lively public and parliamentary debate.  The Equal Wages Guidelines, passed pursuant to the Canadian Human Rights Act in 1982 and 1985 as am., were also the subject of extensive public consultation. The elimination of the rights contained in section 11 and its Guidelines (as well as the related protections in the Canadian Human Rights Act’s s. 7 and 10) for public sector employees, was done by Cabinet behind closed-doors without the genuine or substantive opportunity for discussion or debate or study of the provisions or the rights in issue. In this new legislation, if passed, regulations and guidance on the principles and various aspects of implementation will be done by the Governor-in-Council.  This process does not guarantee protection of democratic principles of transparency, debate or public engagement.

Thanks Rosemary, very enlightening.   Comments, anyone?

Other Useful Resources:

 
Canadian Human Rights Commission submissions to the Federal Pay Equity Task Force in 2003 at:
http://www.chrc-ccdp.ca/legislation_policies/equitytaskforce-en.asp#pay
 
Federal Pay Equity Task Force – final report:
http://www.collectionscanada.gc.ca/webarchives/20071121061932/http://www.justice.gc.ca/en/payeqsal/6000.html
 
Canadian Association of University Teachers “Submission to the Federal Pay Equity Task Force”:
http://www.caut.ca/uploads/submissionpayequity.pdf

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