Pay Equity: Required Changes In Federal Jurisdictions
Posted 2002-10-16 by Louise Aucoin | Jurisfemme Publications – Volume 21, No. 3, Fall 2002
NAWL's Working Group on Pay Equity (members include Louise Aucoin, Claude Bernier, Andrée Côté and Sheila Gibb) recently submitted a brief to the federal Pay Equity Task Force. The Honourable Anne McLellan (then Minister of Justice and Attorney General of Canada) and the Honourable Claudette Bradshaw (Minister of Labour) established the Task Force on June 19, 2001 to review section 11 of the Canadian Human Rights Act (CHRA), the federal pay equity legislation. It was mandated to develop appropriate recommendations in determining how pay equity should be implemented in federally regulated workplaces.
Major pay inequities exist between Canadian women and men whose work is of equal or comparable value. Pay equity legislation calls on employers to compare the value of female-dominated jobs with that of male-dominated jobs: if the value of the former is equal or comparable to the latter, then the wages paid must be equal. It was particularly important for NAWL to apprise the federal Task Force of its concerns in this area since we are committed to:
* Providing acceptable living conditions to all women through legislative reforms
* Guaranteeing employment equity and pay equity.
NAWL's Pay Equity Working Group holds that every woman experiences inequality differently due to systemic discrimination on the basis of race, class, sexual orientation, disability, age, language and other factors. NAWL's brief was written in the spirit of fostering a just and egalitarian society that recognizes and values diversity. One of the main obstacles to substantive equality for all women is wage inequality.
Canada's International Obligations
Pay equity has been internationally recognized as a fundamental human right. Canada is a signatory to several international instruments, including the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) that calls for the respect and implementation of women's human rights. Moreover, in The Federal Plan for Gender Equality, Canada acknowledges that, according to CEDAW, "the effects of legislation must be taken into account in determining whether it is discriminatory, and … positive-action measures are sometimes necessary to correct historical patterns of discrimination."
Canada is bound by many international instruments promoting equal rights, but by ratifying CEDAW the Canadian government committed to take appropriate measures to secure pay equity.
The Canadian government also has a domestic obligation to enforce pay equity. The Working Group holds that any legislative pay equity scheme will have to take into account the constitutional protection provided under section 15 of the Canadian Charter of Rights and Freedoms, as interpreted in Andrews. The Supreme Court of Canada then declared "... that every difference in treatment between individuals under the law will not necessarily result in inequality, and, as well, that identical treatment may frequently produce serious inequality."
According to sections 11(1) and 11(5) of the CHRA, it is a discriminatory practice to pay unequal wages to men and women who perform work of equal value; gender considerations do not justify any difference in wages. Article 11 has neither been amended nor comprehensively reviewed since it received Royal Assent in 1977. A comprehensive review of section 11 of the CHRA and of the 1986 Equal Wages Guidelines is therefore of critical importance.
The Need for Reform
Under the existing scheme, when an employee or a union believes that an employer is in violation of section 11 of the CHRA, he or it can file an allegation or complaint with the Canadian Human Rights Commission. A commissioner will investigate and determine the merit of the charge. If the commissioner deems that there is sufficient evidence to support the allegation or complaint, he or she then decides whether to dismiss it, call in a mediator to attempt a settlement, or refer the matter to a human rights tribunal, where the entire case will be heard.
Although this complaint-based model may seem efficient, in reality, the procedure involved is extremely lengthy, inefficient and fraught with delays. For these reasons, victims are discouraged from filing complaints and are ill-served by the current process. One can only conclude that, for lack of proactive legislation, progress has been minimal.
Therefore, NAWL has made the following recommendations:
The government must draft clear, unambiguous and proactive pay equity legislation and that this legislation be an affirmation of the fact that pay equity is a fundamental human right, protected under the Canadian Charter of Rights and Freedoms and international human rights law, that:
* recognizes inequality in the labour market
* recognizes that pay equity violations are attributable to systemic discrimination and, as such, that systemic remedies are necessary
* acknowledges the specific problems faced by visible minorities and by persons who are differently abled.
* recommends effective methodology for job category evaluations and comparisons and for wage adjustments
* allows for the participation of unions throughout the pay equity process
* makes pay equity procedures accessible to non-unionized women, as well as part-time, casual, seasonal and contractual workers
* recognizes that pay equity, once achieved, must be maintained.
Moreover, it is essential that the new legislation create a separate pay equity commission and a specialized independent tribunal. This commission must be equipped with sufficient resources to help businesses set up pay equity programs, to develop instruments to facilitate the implementation of such programs and the achievement of pay equity in businesses, and to provide training and technical support in job evaluation, job comparison and wage adjustment methodology. To better support employers and organizations representing workers, the commission must also disseminate information that will foster the understanding and acceptance of the role and the provisions of this legislation.
It is NAWL's hope that the new federal pay equity legislation will play a decisive role in achieving gender equality, so that the true worth of all women's work might finally be recognized in dollars and cents.
Louise Aucoin teaches labour law, environmental law, municipal law and testamentary law at the Faculty of Law at the Université de Moncton, in New Brunswick.