Proceedings of the Standing Senate Committee on
Human Rights
Issue 7 - Evidence
OTTAWA, Monday, May 25, 2009
The Standing Senate Committee on Human Rights met this day at 6:30 p.m. to examine the following elements contained in Bill C-10, the Budget Implementation Act, 2009: those elements dealing with equitable compensation (Part 11).
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: This is the Standing Senate Committee on Human Rights. We are here to examine the following elements contained in Bill C-10, the Budget Implementation Act 2009, in particular, those elements dealing with the equitable compensation, Part 11. As committee members will recall, Bill C-10, the Budget Implementation Act, was passed and we were given the reference to study the subject matter of equitable compensation in Part 11.
We are pleased to have Ms. Hélène Laurendeau, from the Treasury Board Secretariat of Canada. We trust you are feeling better, and thank you for appearing at this time. With Ms. Laurendeau is Mr. Dan Danagher, Executive Director, Program Integrity, Labour Relations and Compensation Operations.
Hélène Laurendeau, Assistant Secretary, Labour Relations and Compensation Operations, Treasury Board of Canada Secretariat: First, Madam Chair, thank you for your understanding. I know this committee tried to have me earlier and, indeed, I was at home, which is rare for me.
[Translation]
Thank you for the opportunity to appear before you today to talk about the Public Sector Equitable Compensation Act. Today, I will provide you with a brief overview of the context behind the creation of the Act and outline some of its fundamental features.
[English]
In terms of context, over the past 10 years, women have made important strides in the federal public service. Women and men in the same job get paid exactly the same wage. In addition, women are increasingly represented in executive and knowledge-worker ranks. In the past decade alone, women's representation in these groups has grown by as much as 15 per cent. Women are now 41 per cent of our executive ranks and almost 56 per cent of our knowledge workers within the federal public service.
[Translation]
Wage gaps between women and men are disappearing. There is no gender-based wage gap in average salaries of younger, newly recruited women and men in the federal public sector.
These advances — achieved largely as a result of demographic trends, the changing nature of work, and employment equity programs — should be supported by continuous and holistic attention to equal pay for work of equal value.
[English]
The former pay equity system in the federal public service was reactive, lengthy, costly and very adversarial. Action was spurred solely by complaints that were filed without any discussion at the bargaining table. This led to a never- ending cycle: Unions would file complaints and, just a few years after the resolution of such complaints, those very same unions could, and sometimes did, file new complaints on behalf of the same groups with the Canadian Human Rights Commission.
This process consumed the resources of both employers and unions who managed complaints rather than resolve the underlying problem. In 2001, the Canadian Human Rights Commission found that pay equity cases represented less than 8 per cent of all its cases, but yet absorbed about one-half of the commission's total spending on legal services.
In addition, the process is very time consuming. One notable complaint took more than 20 years to resolve. The longest to date in the federal public service took 15 years, and most complaints take at least 6 years to resolve.
In addressing and resolving these complaints over the years, the federal government as employer has learned a lot, and the Public Sector Equitable Compensation Act builds on this experience. For instance, we are well aware of the risk in pay equity assessments that compare one group of 90,000 employees, for example — employees doing jobs different in nature and earning a wide range of salaries — with other groups — sometimes of 10,000 employees only — doing other, more homogeneous jobs.
[Translation]
We have also learned from the provincial proactive regimes, from the work of the 2004 Pay Equity Task Force, and from international and academic insights.
Ontario, Manitoba and Quebec have regimes that require proactivity — a feature supported by virtually all experts in this field. However, these regimes do not oblige employers and unions to address pay equity considerations every time wages are set.
[English]
The Bilson task force recommended stand-alone and proactive legislation on pay equity, as well as a number of features we see in the Public Sector Equitable Compensation Act. To be clear, the task force, however, did not recommend integrating wage-setting and pay equity together. It is important to note, however, that the responsible ministers at the time wrote to Parliament that the task force's report did not provide an adequate blueprint, and that any legislation needed to address, among a handful of other issues, the relationship between pay equity and collective bargaining, and the obligations of employers and unions.
The act introduces obligations that will ensure that equal pay for work of equal value in the federal public sector is continuously maintained in the future. This is not a one-shot deal; it is a continuously-proactive, timely and fair system.
The Public Sector Equitable Compensation Act enshrines the principle of equal pay for work of equal value. The act uses the term "equitable compensation" to reflect more closely the fact that it is not only about pay equity, but also about equity in all elements of compensation, which can extend to working conditions and benefits.
[Translation]
Ultimately, with the Public Sector Equitable Compensation Act, women will not have to wait decades to resolve pay equity complaints through long and divisive debates in court. Equitable compensation will be achieved proactively — not 15 years from now.
[English]
I would like to focus a little more on some of the key components of the act. The act will achieve and maintain equitable compensation by ensuring that it is addressed at the time that wages are set. It will achieve this by ensuring that both employers and bargaining agents take the necessary steps to properly assess the issues and address them at the collective bargaining table, the forum for wage setting in a unionized environment.
In doing so, the act meets Canada's international obligations to apply the principle of equal pay for work of equal value in our methods for determining compensation. These obligations can be found in the International Labour Organization's Equal Remuneration Convention, 1951.
It is important to emphasize that over the course of history, concrete action on many employee rights has been achieved and maintained at the bargaining table through the collective bargaining process. Rights such as fair wages, proper hours of work and proper working conditions, and issues such as parental leave and occupational health and safety have been developed, maintained and reviewed through the bargaining process.
In fusing pay equity with wage setting, the act focuses not on whether to achieve pay equity, because it certainly will, but on how to deliver and maintain it on an on going basis.
Both parties need to take their obligations seriously and must do so jointly and transparently. At the end of the day, both employers and bargaining agents are subjected to fines if they do not comply with the act.
[Translation]
Furthermore, the act introduces transparency and accountability by requiring employers and bargaining agents to provide reports to employees explaining what has been done to ensure equitable compensation.
The act specifically introduces the obligation for employers to inform employees of their rights under the act. No provision is made for this under the current system.
[English]
The new system also maintains the right of women to lodge complaints through the Public Service Labour Relations Board, an independent body that currently administers the Public Service Labour Relations Act. The Public Service Labour Relations Board has played a key role since 1967 as a neutral third party in resolving issues around collective bargaining and is providing research on wages to support the parties through the bargaining process.
In conclusion, the Public Sector Equitable Compensation Act will come into force once the regulations are established through the Governor-in-Council. These regulations will provide greater definition and clarity to the terms, obligations and processes under the act. We anticipate that the regulations, development and consultation associated with such development will take roughly 18 months to complete.
Once in force, the act will provide unions and employers a two-year window to prepare for new obligations in future wage-setting exercises.
[Translation]
I want to emphasize our commitment to providing women in the public sector of Canada with equal pay for work of equal value. The Public Sector Equitable Compensation Act will not only protect this fundamental right, but it is the best way towards achieving it and maintaining it for years to come.
[English]
My colleague and I are prepared to answer your questions.
The Chair: Thank you. I will remind senators that we distributed the testimony before the Standing Senate Committee on National Finance. We have that back-up.
When we had the Canadian Human Rights Commission come before us, we did not receive sufficient information. They were saying that any new complaints were being directed away from the Human Rights Commission and would be dealt with under this new act or process.
You have indicated that it will take about 18 months before it comes into force. I am confused: If I have a complaint today, I go to the Human Rights Commission, and they say they are transferring it to you. Will it sit there for 18 months? What happens in that interim period?
Ms. Laurendeau: The body responsible at this moment to hear existing pay equity complaints that have not been referred to a human rights tribunal is the Public Service Staff Relations Board, but their responsibility is to apply the existing legislation because the new legislation has not come into force. New complaints as of today will be filed with the Human Rights Commission so as not to confuse the complainants, but those complaints would be referred automatically to the Public Service Staff Relations Board. They will still interpret the legislation as it exists today, with some transitional measures on the type of order they are able to order. That is the difference. Does that clarify the matter?
The Chair: Are those transitional measures in the act?
Ms. Laurendeau: Yes, they are at tail end of the act.
The Chair: We would not go beyond act, then?
Ms. Laurendeau: We would not go beyond the act.
The Chair: We can take the old system as well as the transition provisions for anyone entering into the process today.
Ms. Laurendeau: Precisely; to be clear, it makes the bridge between the current system and the new body responsible to issue orders of pay equity, which is now the Public Service Staff Relations Board.
The Chair: I am tempted to say we then have an 18-month lag on a system that you say takes too long, but I am presuming that you are simply saying the regulations will take that long because you will have to negotiate some parts. Why would it take 18 months for regulations?
Ms. Laurendeau: Of course, we would try to be quicker than that, but that is our assessment of a reasonable time frame to allow for proper consultation of the regulations with the various stakeholders.
Senator Jaffer: I understood the Human Rights Commission to say that cases would still be referred to them because, as you said, they did not want people to be confused. They would be transferred to the PSLRB, and for six months there would be a period of trying to resolve it. If it did not get resolved, it would proceed, and everything would otherwise be in limbo for three years until the next bargaining process started.
I understood them to say that it would take three years before the next bargaining process. Moreover, the order-in-council had not been proclaimed; the regulations were not in place; the plan was not in place; and, it would take three years before the process would be in place.
Ms. Laurendeau: There is a distinction between the management of complaints during the transition period. When the act comes into force, when you do collective bargaining to set the wages, you will have to address pay equity issues. That is the part that must wait for regulations to be in place, for the act to come into force and then, two years before the next round of collective bargaining, leave parties with preparation time. That is when the act has come completely into force and a proactive regime exists.
In the meantime, you want to ensure that people are not left in limbo and that the current regime continues to be administered. As it is a complaint-based system, you must have a body that hears the complaint, and you must try to have a resolution while this preparation work is happening. One source of confusion is about completing the job on complaint management. The other source is the transition to a proactive system whereby you actually address wage setting and you bargain collectively.
Senator Jaffer: I do not think there is confusion. The confusion is that you are saying that this process will be faster. We heard last time that the new process will take three years to come into place.
How is it faster? All the time we have been hearing that this process will be faster and the complaints will be heard faster. When will the order-in-council come into place?
Ms. Laurendeau: We are assessing in 18 months from now.
Senator Jaffer: I understood that some of this is already in force. For example, the process going to the Human Rights Council is already in force. The order-in-council is in place, and the transitional cases already go to the board, or to the new process.
Ms. Laurendeau: That is correct.
Senator Jaffer: The regulations and the plan are not in force. The Canadian Human Rights Commission told this committee that the bargaining process does not happen for another three years, so it will be another three years before this process is in place.
Ms. Laurendeau: Two years after the coming into force, the proactive model for the future will be in place. Pay equity will be reviewed each time we do collective bargaining in a unionized environment, or by the employer when the employer does the revision of salary for non-unionized employees.
It may take longer to transition from a complaints-based system to a proactive regime, but once the proactive system is in place, equitable compensation will be reviewed each time salaries are revised.
Senator Jaffer: We may have to come back to this another day, but I understand you to say that it takes 18 months for the order-in-council and then two years for it to come into place. Is that correct?
Ms. Laurendeau: For the "proactiveness," yes.
Senator Jaffer: That is almost three and a half years.
Ms. Laurendeau: That is correct.
Senator Jaffer: I have a question about the language. Why would you not keep the words "pay equity"? Why would you introduce a new concept called "equitable compensation"? I would appreciate clarification.
I understood "pay equity" to mean that a job is assessed on skill, effort, responsibility and working conditions. You do the same with "equitable compensation," but you have added consideration and qualification of market forces, plus retention and recruitment. This is completely different from pay equity. It is a different model; it is equitable compensation.
Why would you go to something completely different from pay equity and add market forces? Why would you not keep the words "pay equity"?
Ms. Laurendeau: The words "equitable compensation" are in the title of the legislation and we had two reasons to move to the new vocabulary. The first consideration was to ensure that we captured the notion of not limiting it to wages; we wanted to make it all-inclusive in terms of compensation.
The second consideration was to bring it back to its roots and bring it closer to convention 101 from the ILO, of which Canada is a member, which refers to equitable remuneration. The idea was to go back to the roots, to capture the notion of total compensation in the concept of equal pay for work of equal value, which is already part of our international obligation.
With respect to the second part of your question, the notion of skill, effort, responsibility and working conditions to determine internal relativity remains a concept enshrined in the legislation. The issue of recruitment, retention and market forces already exists in the equal wage guidelines, but they were dealt with through an exception that was extremely difficult to interpret. It was felt that balancing the two to determine value was an adequate way to incorporate an existing concept in the equitable wage guidelines but dealt with through an exception.
Senator Jaffer: I have looked and I cannot find a legal definition of "equitable compensation." I get a knot in my stomach when you say that this process will be faster. We know that this is before the courts, and you say that the process will be faster when we will not even get it off the ground for another three and a half years. You then introduce a new term, "equitable compensation," which will have to be defined. It is moving from the discriminatory lens to another process. It is all new. How will it be faster? I do not understand.
Ms. Laurendeau: The proactiveness will definitely bring quicker results than the current average of six-years for the management of complaints. We have had complaints take up to 15 years to resolve. The bargaining process usually happens once every two or three years in the public sector. It could stretch to four years, but the obligation to review wages comes about every three to four years. This proactiveness is the promise of results that are ongoing and addressed more quickly.
Senator Jaffer: I hope for the sake of all women that you will succeed in being proactive. However, when you say that employers will be proactive, I wait with bated breath. Nothing stopped employers from being proactive in the past. What will make them proactive now?
You said in your presentation that employees would receive equal pay for work of equal value. That is in the preamble, but it is not mentioned anywhere in the act. The words "equitable compensation" are mentioned. The phrase "equal pay for work of equal value" is in the preamble. Someone interpreting various parts of the act is looking for equitable compensation, which is different from equal pay for work of equal value.
Ms. Laurendeau: The words "equal pay for work of equal value" come straight from convention 101 to which I referred. The purpose of enshrining it in the preamble and devising an entire system to fulfil that obligation is to implement the concept for equal pay for work of equal value.
Senator Jaffer: Even though it is not mentioned anywhere else in the act?
Ms. Laurendeau: If I may say, it is everywhere in the act. The purpose is to achieve equal pay for work of equal value.
Senator Jaffer: Would you agree with me that those words are not used anywhere in the act other than the preamble?
Ms. Laurendeau: From a strict wording standpoint, that is correct, but the preamble is powerful, since that is the obligation that the parties must meet.
Senator Jaffer: Except that when a particular section is being interpreted the words "equitable compensation" will appear. Is that correct?
Ms. Laurendeau: It will have to be interpreted in light of the preamble.
Senator Jaffer: Section 36 of the Public Sector Equitable Compensation Act, states:
Every employer and every bargaining agent shall refrain from engaging in any conduct that may encourage or assist any employee in filing or proceeding with a complaint under this Act.
In fact, if they do assist, a substantial fine will be imposed. If I am not mistaken, there could even be criminal sanctions for a union helping an individual.
Why would you stop the union from helping an individual to bring a complaint?
Ms. Laurendeau: I do not think there is a criminal sanction. You are right that there is a fine associated with a breach.
Senator Jaffer: A substantial fine.
Ms. Laurendeau: Yes, there is a substantial fine associated with the breach of that section. The rationale behind the fines, which apply to both employers and bargaining agents, is similar to the one that you may find in the Public Service Staff Relations Act for infringing upon some of the obligations around collective bargaining. The rationale behind it was to put in place accountability to develop good faith jointly, articulated by representation in the form of unionization and the democratic process to develop a position on bargaining. The logic goes that neither party should be allowed to go back and undo what they have committed to do.
That is true on both sides of the table. It follows that the obligation is put squarely on the two parties to do their homework and their assessments, to raise the issues in relation to equitable compensation, to resolve them in a transparent fashion, and to go back to the membership so that the membership can see how those issues have been dealt with. Once that process is done, it would be inappropriate to allow one of those two parties to go back and unravel what has been agreed at the bargaining table.
This is part of what was identified as being a problem in the current regime: One of the parties could sit down at the bargaining table, agree on wages, turn around and file a pay equity complaint. Why not bring it to the table if there was an issue.
Senator Jaffer: You have taken away the one party that the employee has, the union, with whom they work. I accept that you say it is done is good faith, but then where does an employee go to seek help?
You have put nothing in place for the employee to seek help if they feel they are being discriminated against. You are taking away the only way the employee can seek help. There will be a fine for that body if they help the employee. To whom does the employee turn for help?
Ms. Laurendeau: The employee still has a right of complaint. They have the benefit of a proactive reassessment on an ongoing basis by their bona fide representative with this process. If there is still an issue after the fact, there is still a capacity for complaint.
Currently, there is only a complaint system. It meets that very important issue sitting outside of the democratic process to define what position should be taken at the bargaining table. As some of the literature points out, it almost marginalizes the fundamental women's issue and takes it completely outside of the bargaining process by virtue of the fact that there is a complaint system.
The idea is to bring it back to the centre of wage setting on both sides. For example, the obligation in section 10 of the Human Rights Act is for every other working condition to be subject to joint accountability. This is similar to the one that we have put in place for setting wages.
It has proven to bring some rigour into the system and put those issues at the centre of the preoccupation for both sides at the bargaining table. The idea is to extend the same capacity and make wage setting to be assessed in light of equitable compensation, or equal pay for work of equal value, as opposed to leaving it outside and to be dealt with only through litigation.
Senator Jaffer: At the moment, there is no regulation or plan in place. As you have already said, it will take up to three and a half years before the system comes into place.
Ms. Laurendeau: There is a plan in place and a transition measure that includes proper development of regulations. This is followed by the coming into force with a two-year window to catch up at the bargaining table.
Senator Jaffer: However, the regulations have not yet been put in place?
Ms. Laurendeau: Yes, that is correct.
Senator Munson: You used the term in your speech "knowledge worker" ranks. You used it twice, "a knowledge worker" and the "executive and knowledge workers." I assume this is a new term in the public service.
This is a fundamental change to people's rights. How are knowledge workers reacting to this legislation? Are they welcoming it; are they fighting it; are they concerned about it? What is the mood in the public service now?
Ms. Laurendeau: I would be remiss if I did not mention that there is a fair amount of anxiety in the system. That is correct. A change of that magnitude creates anxiety; however, forums such as this assist in explaining the underpinnings of this legislation.
With respect to the term "knowledge worker," it is a term used to refer to certain occupational groups. We took that from the Statistics Canada definition, which is an important subset of the population of the public service. It generally refers to mathematicians, chemists, engineers and biochemists. This was provided as an example to demonstrate that the representation of women everywhere in the public service is an important feature of what has contributed to shrinking the global wage gap between men and women in the federal public service.
Senator Munson: Is there a message to other public-sector unions in this country with this new legislation that they will not have any say, or very little say, in defending the human rights of a public servant?
Ms. Laurendeau: I happen to think it is the contrary. If there is a message to bargaining agents in the federal public sector to which this legislation applies, it is that there is a place where we need to discuss fully issues of equal pay for work of equal value. It is at the bargaining table. Parties have to sit down together and ensure that they neither create nor leave unaddressed issues of equitable compensation each time wages are reviewed.
If there is one message, that is that message. You cannot leave this issue outside of bargaining and take up litigation over it. You have to sit down, roll up your sleeves with the employer and resolve the issue whoever the employer is within the broad family of the public sector.
Senator Munson: I would like a few answers on section 36 of the Public Sector Equitable Compensation Act, PSECA. Section 36 is clear that employers and bargaining agents must refrain from encouraging or assisting any employee in filing or proceeding with a complaint under the act. An employee will not receive assistance from the Public Service Relations Board in bringing a complaint forward under the PSECA, whereas under the CHRA they may receive the assistance of the Canadian Human Rights Commission.
What effect will section 36 have on the advancement of equitable compensation or pay equity? Will the new complaint mechanism be sufficiently accessible and affordable for complainants? In other words, how will the PSECA ensure that women have sufficient access to justice with regard to equitable compensation or pay equity in the public sector?
Ms. Laurendeau: The purpose of section 36 is to ensure that the parties come to the table prepared with respect to equitable compensation and actually follow suit with the agreement reached at the bargaining table on that particular issue. In terms of whether it will allow for the effective advancement of equal pay for work of equal value, the fine is not the prime mechanism. The prime mechanism is do the research and be prepared to sit down at the bargaining table to discuss the issue of equitable compensation. I insist on that because we tend not to talk enough about it. Following that discussion, there should be a clear report as part of the collective agreement to the ratification vote of members of the bargaining units to see how transparently issues have been identified, assessed and resolved.
This transparency will facilitate, if something has not been properly addressed, the building of a case after the fact should someone continue to think that despite all of this, there is still an unaddressed issue of equitable compensation. The fact that people have to file a complaint without knowing whether there is an equitable compensation issue, currently accounts for a lot of lengthy evidence before either the Human Rights Commission or the Human Rights Tribunal. This notion of transparency of joint accountability from responsible people representing the employer and the unionized membership will become the basis for demonstrating that issues have been assessed and addressed.
[Translation]
Senator Pépin: Thank you for joining us, Ms. Laurendeau. It was clear that changes needed to be made to the complaints-based system. The option put forward by the government was rejected by women's groups, human rights organizations and pay equity advocates, all of whom had long been demanding changes.
Why do you think the selected option to reform pay equity in the public service was rejected? Was there not adequate consultation?
Ms. Laurendeau: I would not go so far as to say that there was not enough consultation done. Considerable attention was paid to the research provided as part of the work of the Bilson Task Force in 2004. There was also considerable emphasis placed on some of the research done by the Canada Labour Congress. Experience also counted a great deal. Certainly, the option was unpopular in some respects, but when a new accountability framework is introduced, this sometimes happens. I say that very humbly, and with all due respect. I do not believe that our union partners are debating whether or not a proactive regime is needed. A consensus has already emerged from the Bilson Task Force. The definition of accountability is one area of concern. Far be it for me to downplay any concerns associated with this issue. However, after discussing the matter in private with some academics and union representatives, I do not see this as a unanimous rejection of all of the principles on which this legislative regime is based. Redefining accountability may create some level of comfort.
Senator Pépin: A set of regulations must be drafted before the Public Sector Equitable Compensation Act can take effect. How do you intend to go about this process and which groups will be involved?
Ms. Laurendeau: Certainly, we were not able to consult with certain groups when the decision was made to tie part of the legislation to the budget and we intend to consult with them as we go about drafting the regulations. The consultation process will involve union partners both inside and outside the public service as well as certain academics mentioned earlier, representatives of the Human Rights Commission, of course, and others. These are some of the people who will be consulted as part of the regulation-making process. We would be remiss to do otherwise. One of the reasons why we have given ourselves a year to 18 months to consult is because there is a genuine need to hold consultations.
Senator Pépin: And to reach out to everyone.
Ms. Laurendeau: And to reach out to everyone.
Senator Pépin: What led you to decide that complaints should be lodged through the Public Service Labour Relations Board rather than through the Human Rights Commission? Why not opt for a pay equity tribunal, as Ontario and Quebec have done, and as the Bilson Task Force recommended?
Ms. Laurendeau: It is important to understand that the Labour Relations Board already has the power to interpret human rights issues associated either with the grievance procedure or with the collective bargaining process. Different options presented themselves with the marriage, or merger of collective bargaining and pay equity assessments. It became clear that an independent party was needed to help the parties. And, since the collective bargaining process is already supported by the Public Service Labour Relations Board, it was logical for us to retain the option of going with the existing Labour Relations Board. Obviously, the Board's resources and support capabilities will need to be expanded, but to opt for an established independent board rather than create a new body was a pragmatic choice.
Senator Pépin: Why did you amend the definition of "female predominant" so that it no longer applies to groups composed of 50 per cent female employees? In fact, the definition will now apply to groups composed of at least 70 per cent female employees. What was the rationale for this decision and why did you decide to redefine the criterion used to evaluate work of equal value?
Ms. Laurendeau: Thank you for the question. One might get the impression that the intent was to allow fewer women access to this legislative regime. A proactive system ensures that for all job groups, whether female or male predominant, all bargaining units must perform equitable compensation assessments and determine whether, within a group, there are smaller pockets of employees in need of attention, because these are the groups that tend to be overlooked, even as part of a complaints process. The question that we must ask ourselves at all times is whether there are any small female predominant groups, within a larger group, that are poorly assessed because they are a female group. Small groups are more susceptible to variations in staffing, in terms of predominance. Looking for isolated groups within a large group will force us to consider the question of female representation. However, all bargaining units, whether male or female predominant, will be required to perform their own assessments. This is an important point that tends to be overlooked under this system. This obligation extends to all groups.
[English]
Senator Nancy Ruth: I want to understand more about the ILO convention 101.
You testified to Senator Jaffer that equal pay for work of equal value was in that convention. You also said that the phrase "equitable compensation" — related to a more total compensation — was also in the act.
How are those two things going to be weighed as to what equitable compensation really means? I might also state, having had something to do with litigation over the last 20 years for women's rights, that in the Supreme Court of Canada, when items were in the preamble and not in the act, it made a huge difference. That is where my concern is coming from. I do not really believe that preamble will have the legal validity one would wish it to have. Therefore, if both these concepts are in the ILO convention, how will they be weighed? How do you see it?
Ms. Laurendeau: I certainly have the deepest respect for all the work you have done on women's issues. I would not dare to get into a legal interpretation that will be left to either the PSLRB or the courts or the two of them.
I point out that I called it convention 101 twice, but it is convention 100. I must have been contaminated by another convention 101 in Quebec. I apologize for that. It is the Equal Remuneration Convention, 1951. As I said, we went back to the basics when we crafted this legislation. We went back to the source documents, one of them being the Equal Remuneration Convention, 1951.
In the past the federal public administration's reasons was that our pension plans and our benefits are the same; therefore, we do not have to address those in the concept of making comparisons. We always resolve our complaints based on wages. However, by introducing the notion of recruitment and retention, sometimes those other elements of compensation take on a different importance. We are all aware that the issues of pension, depending to whom you are comparing yourself, may have a significant impact on how you assess total compensation. We wanted to ensure that we would not leave any elements of the overall compensation package out of the equation. There was a clear message. That is the main part of the choice of the vocabulary that we used.
I will point out that the convention also says that each member — that is the state —
. . . shall, by means appropriate to the methods in operation for determining rates of remuneration. . .
They use the word "remuneration," which is broader than just "wages."
. . . promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.
We wanted to go back and model what they were saying on the root of that obligation, which enshrined equal pay for work of equal value and goes beyond by ensuring that we dispel this myth that we only were comparing wages but that we looked at the whole gambit.
It was very important because, by bringing in the issue of recruitment and retention, we needed to be very clear that we wanted to be all-inclusive and have the whole benefit package in a total compensation approach.
Senator Nancy Ruth: We will wait and see, I guess.
When these packages are negotiated now, are they negotiated with Treasury Board?
Ms. Laurendeau: Yes, they are negotiated for the core public administration. They are not all subject to formal collective bargaining, but they are part of remuneration all together. When we compare ourselves to the outside market, we include all elements of compensation.
Senator Nancy Ruth: My understanding from the Report of the Auditor General on gender-based analysis is that Treasury Board got quite a swat. Why should I be confident that you would protect women in these negotiations, given what the Auditor General's comments were last week?
The minister was, I thought, disgraceful in his response to the questions and the comments, just appalling. Treasury Board has to do something better, but I really want to know how you think your part of it can cope with the problem.
Ms. Laurendeau: I strongly believe that the legal obligation deserves to be met. The obligation will have to be met because it is a legal obligation. Therefore, we will have to ramp up our research capacity to actually be able to sit down at the table, year after year, to be able to talk about women's issues that include equal pay for work of equal value.
That being said, on other working conditions, section 10 has kept both parties honest when the time comes to talk about women's issues at the table. We had the capacity to at times say yes or no to requests that could have been down the road discriminatory against women. With this piece of legislation, all we are trying to do is to ensure that the same level of rigour comes to play when the time comes to set wages.
Senator Nancy Ruth: Have you been promised additional funding so you can ramp up your research?
Ms. Laurendeau: Promise for funding is something that belongs to Parliament.
Senator Nancy Ruth: When you say "ramp up our research," do you really believe you will get the resources you need to do that research?
Ms. Laurendeau: We have received resources to prepare the regulations, and we certainly will have the duty to articulate our needs as employers, because there is not only the core public administration, there are all the employers in the federal family to meet that obligation. We will be preparing our ask in that respect and I have faith that Parliament will probably hear us.
Senator McCoy: It is good to see you again. I was at the Finance Committee as well when you attended.
My assumption is that you, as an employer, have not been taking pay equity into consideration in your negotiations up to now.
How many of our federal employees are not currently being paid on an equitable basis?
Ms. Laurendeau: I do not think there are many. If you look at our figures, our global wage gap is very small compared to the rest of the population. I can say that for the bracket of employees who are below the age of 35 years, we have a wage gap. The global wage gap is 3 per cent compared to about 26 per cent or 27 per cent in the global population. In other words, female wages in the federal public service for the population below 35 years of age is 97 per cent of the male wages. In the general population, it is about 73 per cent or 76 per cent.
Senator McCoy: Do you rely simply on global figures? How do you know whether or not groups of federal employees are suffering from non-pay equity?
Ms. Laurendeau: Actually, with the complaints that we have resolved through the years, and with more and more women with access to higher-paid jobs, we can say with confidence that the wages are non-discriminatory in the public service. I believe we need to work at it on a regular basis and carry on analysis as we go along. Not a day goes by without a new problem arising while one has been resolved. That is why we need to have a proactive system where we will jointly look into these issues on a regular basis.
Senator McCoy: Are you saying to us that you will not conduct a study to determine whether there are groups?
Ms. Laurendeau: We will have to do it on an ongoing basis.
Senator McCoy: When do you start your study now that you have responsibility for initiative rather than the employees?
Ms. Laurendeau: As soon as possible.
Senator McCoy: When is that?
Ms. Laurendeau: We will certainly have the obligation as soon as the act comes into force.
Senator McCoy: Will that be in three years?
Ms. Laurendeau: The act will come into force in 18 months.
Senator McCoy: Let me reinforce something you said earlier. You said you wanted two years for preparation time. You are anticipating being under a legal obligation. You have told us you want two years to prepare. What is stopping you from using that time to answer such basic questions that you seemingly cannot answer today?
Ms. Laurendeau: I do not want to be argumentative, but I do not think that we are not answering questions today. In fact, based on the current legislative regime, we are saying that we are in a good position with respect to the complaints in the books. Many of them have been resolved through the years.
At the same time, we are saying that there is a better way to ensure we do not have a re-emergence of those issues by moving to a proactive system. We are preparing ourselves to be ready to sit down and have a complete conversation with our partners over these issues, as soon as the act comes into force.
Senator McCoy: I will not pressure you to be argumentative, either. In view of the time, I will defer to the next questioner.
Senator Mitchell: I am listening to you, and I am sure you are reflecting your minister and the policy, that somehow this effort will address the questions of pay inequity better. Then I start to add up what you are doing, and I think there absolutely must be a disconnect at some level, or the case that is being made is completely and utterly disingenuous. You are saying it will be easier, but all of the sudden, you must go from 50 per cent to 70 per cent of a gender to demonstrate a gender waiting.
Second, if you do run into trouble and you need to appeal this, your union cannot help you. In fact, not only can they not help you, but they will be fined $50,000 for trying.
Third, there will be differential treatment between a unionized worker and a non-unionized worker, which I want to pursue.
Fourth, you are changing the definition of equal pay for work of equal value to equitable compensation, which may have all kinds of implications, none of which have been defined over years of precedent.
Finally, you are taking it out of the realm of rights and making it negotiable. It just seems to me incomprehensible that anyone could say that will make this process better.
Compounding that, clearly your department or you do not have the information at a specific level, where these inequalities exist, and you are applying this policy to some problem that you cannot even define. In fact, you are saying it is the differential of only 3 per cent.
The government has put a cap of 1.5 per cent on settlements. Could you confirm that if a group of women in a bargaining unit must get a 10 per cent increase in order for them to be paid equitably and the people in the remainder of the bargaining unit will somehow have to be paid considerably less than 1.5 per cent if the average will be so? The implication is that you will pit some groups against other groups within a union; do I have that right?
Ms. Laurendeau: I draw your attention to section 398 of the Budget Implementation Act:
Sections 30 and 33 of the Public Sector Equitable Compensation Act and section 396 and 397 apply despite any provision of the Expenditure Restraint Act.
The Public Sector Equitable Compensation Act would supersede the Expenditure Restraint Act. If an inequity surfaces, it will have to be addressed.
The Public Sector Equitable Compensation Act says that future wage restraint acts will have to comply with the Public Sector Equitable Compensation Act. An element of fundamental rights is built into the Public Sector Equitable Compensation Act for that particular issue.
As we speak now, there have been settlements that have been capped at 1.5 per cent, but should there be any equitable compensation or pay equity issues that arise during the life of the Expenditure Restraint Act, they would have to be addressed.
Senator Mitchell: Will there be extra money to pay that group of women 10 per cent and not average down from the 1.5 per cent? Are you absolutely certain of that?
Ms. Laurendeau: Assuming there is an inequity, of course.
Senator Mitchell: It is not the bargaining process that determines whether there is an inequity. They will not determine that. Who would determine that there is an inequity?
Ms. Laurendeau: We have to be very clear about the timelines we are talking about. When the act comes into force and we negotiate into the future, it will have to be addressed at the bargaining table.
With respect to the Expenditure Restraint Act, the coming into force will be outside of the window of the Expenditure Restraint Act, as we know it now. Should there be a complaint that demonstrates during the life of the Expenditure Restraint Act that there are inequities that need to be addressed, that would be superseded by that determination.
Senator Mitchell: The bargaining process will determine that there is an inequity to be addressed; that is what this act would say. Then the government will accept that? The Treasury Board will just accept that and pay accordingly? I do not think you can guarantee it will work that way.
Ms. Laurendeau: Of course, there will be a bargaining process. There will have to be a determination that is agreed upon by both parties in that there is an equitable compensation issue, it has been assessed and it needs to be determined.
Senator Mitchell: What if you are not in a union? What about all those women who are not in bargaining units and still work for the federal government or for federal employees? Who will do all of the things you say are the union's responsibility to negotiate on their behalf?
Ms. Laurendeau: The Public Sector Equitable Compensation Act says that wage-setting practices need to comply with the legislation.
In cases where wage-setting practices are subject to collective bargaining with the bargaining agents, the responsibility is shared between the employer and the bargaining agent.
In the case of an employer for which there are non-unionized employees, such as in the management category of the core public administration, the employer will have to actually comply with the legislation, issue the report publicly and inform the employees of the equitable compensation assessment.
Senator Mitchell: The very employer who, if there were an inequity, would have been responsible for it for who knows how long will be the same employer who would have to take responsibility to identify and redress that inequity. If they happen not to do that, an assistant who works in some office without any bargaining unit, without any recourse to the Canadian Human Rights Commission and without any recourse to resources will do what?
Ms. Laurendeau: The individual will still have the complaint, which is provided for in the legislation to the Public Service Labour Relations Board, and the employer must respond to the complaint and meet the requirements of the act as determined by the PSLRB.
Senator Mitchell: With respect to your department or a federal Crown corporation, what if the employer does not respond to the complaint? What does that group of people do?
Ms. Laurendeau: The PSLRB can order the employer to comply; it has the capacity to issue orders in that respect. That would have the same effect as any PSLRB orders, which, as an administrative tribunal, would be against the consolidated fund. The non-compliance fine applies to the employer, including myself when I act on behalf of the Government of Canada as the employer.
Senator Mitchell: You would personally pay?
Ms. Laurendeau: No, the employer would, but I think I would get fired afterwards. I am not being facetious.
Senator Mitchell: I know you are not, but you are also not giving an answer that is satisfactory in the case of non- union workers. I think it is a fundamental disregard for their rights and their ability to protect their interests, given where they are relative to a huge employer.
Ms. Laurendeau: I would offer, senator, with all due respect, that the fact that we will have to actually issue a report about how we have identified and addressed any issues of equitable compensation puts those people ahead of where they are right now. Currently, they are not unionized and, if there is an inequity, they have to file a complaint, and they do not even have the capacity to find an evidence-base to be able to demonstrate it. Through the proactive system, they will at least have the regular report that will have to be issued that can be assessed by the PSLRB as being the basis as to whether or not the job has been well done.
With all due respect, I would say that puts these people ahead of where they are now. Do not forget that the same PSLRB will accompany the parties that are unionized, with all the level of sophistication and analysis, and their expectation will be based on that.
Senator Mitchell: With all due respect, governments can provide leadership in this important area, and this government is not doing that at this time in this way.
The Chair: I do not want to get into that issue.
In your original statement, you said Ontario, Manitoba and Quebec have regimes that require proactivity. You noted that these regimes do not oblige employers and unions to address pay equity considerations every time wages are set, as in our federal legislation. Is that what you are saying?
Ms. Laurendeau: That is what I am saying.
The Chair: We are running out of time. If there are any other major differences between the Ontario, Manitoba and Quebec regimes and that upon which we are embarking on here in the federal system, perhaps you could provide those to us in writing.
Ms. Laurendeau: Yes, we will be happy to do that.
The Chair: We were gathering some questions from other witnesses, and we may bring those to your attention for your reply.
Senator Jaffer: I will file that with the clerk to be forwarded. When the Canadian Human Rights Commission was here, they said it was better to ask you those questions. Just to be sure, I suggest you look at the transcript as well, in case I have not got it correctly.
I have one concern. I asked you if there was a plan in place, and you said there was. When I look at the notes, it says regulations will define the content and form of plans prepared under the act. Plans are expected to be of a technical nature, and the prescriptions addressing these technical questions are better outlined in regulations rather than legislation.
You told me the regulations were not in place, so the plan cannot be in place either; is that right?
Ms. Laurendeau: I may have misunderstood your question. I thought your question was whether the government had a plan to prepare to meet its obligation.
Senator Jaffer: I hope they have that plan. I am talking about the plan under the new act. That is not in place; right?
Ms. Laurendeau: No, not yet. We need the legislation to be able to do that.
The Chair: Ms. Laurendeau, and Mr. Danagher, thank you for coming this evening and pursuing with this committee the subject matter of Part 11 dealing with equitable compensation. I will look forward to the written responses.
Senators, we are running behind schedule. I welcome the next panel.
Milt Isaacs, President and Chair of the Board of Directors, Association of Canadian Financial Officers: Thank you for this opportunity to make a presentation here today. As you know, my name is Milt Isaacs, and I am the president of the Association of Canadian Financial Officers, the certified bargaining agent and professional association representing the financial management group in the federal public service. Our 3,800 members work as accountants and financial professionals in departments and agencies across the country.
Canada has a proud history of fighting for human rights around the world. Our brave men and women have made the ultimate sacrifice in defence of these rights and freedoms. Proud Canadians like Lester B. Pearson, Louise Arbour, Jean de Chastelain and your colleague, the Honourable Senator Roméo Dallaire have been called on by international communities to share the Canadian view of rights and freedoms in every corner of the globe. Yet, my colleagues and I are here today in response to a bill that dismantles rights for hundreds of thousands of Canadians who proudly work in the federal public service. The irony is not lost on us.
The recent change to pay equity is an attack on the human rights and freedoms that Canadians hold dear. Under the old system, pay equity cases were heard by an independent panel of human rights' specialists with expertise in pay equity. Now it has been reduced to a condition of employment, subject to debates at a bargaining table, putting it on the same level as call-back pay, court leave, travel time and stand-by pay.
This government is telling Canadians that their fundamental rights are no more than bargaining chips. In its attempt to fix an admittedly flawed system, the government has thrown the baby out with the bathwater and started down a path that ends with human rights being subject to negotiations.
Lost in much of the talk about this legislation is the fact that the government has unilaterally changed the threshold for making pay equity complaints. Numerous nations and international precedents set the bar for female predominance at anywhere between 55 per cent to 70 per cent, depending on the size of the group and the nature of the work, the highest threshold reserved for unique situations. The government locked on that rare and exceptional threshold, however, and applied it across the board, thereby denying a number of groups access to their human rights.
Public servants proudly serve our fellow Canadians. We do not want to be leveraged off of for political gain. There can be no good derived by doing so.
We realize that we are facing tough economic times, but this is not the reason for undermining fundamental human rights. If economics were the basis for deciding when to defend human rights, there are many times in history where we should not have deployed our service men and women.
Taking advantage of an economic slowdown to limit human rights is not only wrong, it goes against the grain of our reputation and what we stand for as a nation. By undertaking these hearings, this committee has an opportunity to effect change for the better.
One of the biggest problems with this legislation is that key terms and processes have been left undefined pending the drafting of regulations by the Governor-in-Council. At this point, nobody seems to know how to proceed with outstanding and new complaints. According to the Public Service Staff Relations Board, which is handling pay equity complaints during the transition, they do not expect the regulation to be ready for months.
This is why we are asking this committee to call upon the government to create a mechanism to allow for meaningful consultation in the development of these regulations. Meaningful consultation with all parties affected by change could mitigate some of the problems with the new process. One need only look at the success at the national joint council on the work being done at the departmental level through labour management consultation committees to see that cooperation and collaboration with bargaining agents can work. However, meaningful consultation will not retroactively create a business case for this legislation.
Despite being included in an economic stimulus budget bill, and despite the government's own management accountability framework stressing the importance of a business case and proper stewardship mechanism for a major public service initiative, there is no evidence of a business case for moving pay equity into collective bargaining.
As such, we are also asking this committee to commit to a three-year review of this act. This is in line with the management accountability framework, which calls for relevant information on results to be gathered to properly evaluate the impact on the public service initiatives.
In closing, I would like to ask this committee to call on the government to establish a mechanism for meaningful consultation with the bargaining agents when developing legislation with substantial impacts on the public service. We want to be partners in this. We consider it a gift to have this opportunity to help fix the problems and to ensure the public service remains a strong institution and a career destination of choice. Give us that opportunity.
Patty Ducharme, National Vice-President, Public Service Alliance of Canada: In the name of the 166,000 members of the Public Service Alliance of Canada, the PSAC, I would like to thank the Standing Senate Committee on Human Rights for providing us with this opportunity.
It was with a feeling of outrage that we witnessed the Conservative government undemocratically strip public service workers of their fundamental right to pay equity this past March. This law was passed as part of Bill C-10, the Budget Implementation Act, but to be clear, pay equity is a human rights issue, and it should never have been addressed in a budget bill.
The federal government has included provisions in this act that will radically reform the law on pay equity for the federal public sector. PSAC members, 62 per cent of whom are women, will be hit very hard by this new law.
To summarize, this bill will eventually do four things. The PSEA will restrict the substance and application of pay equity in the public sector by redefining the notion of female-predominant job groups to require that women make up 70 per cent of the workers in the group. By adding a reference to market forces in the criteria used to evaluate whether or not jobs are of equal value, the act transforms pay equity into an equitable compensation issue that must be dealt with at the bargaining table. This is problematic because there is no obligation on the employer to proactively review its pay practices and to provide the union with the relevant information; and there is no obligation to proceed with a joint pay equity assessment.
The act compels women to file complaints alone, without the support of their union. Under this new legislation, if pay equity is not achieved through the bargaining process, individual workers would be permitted to file a complaint with the Public Service Labour Relations Board, but without their union's support. In fact, this act would impose a $50,000 fine on any union that encourages or assists their own members in filing a pay equity complaint.
The act prohibits access to the Canadian Human Rights Commission for violations of public sector workers' right to pay equity. It is our submission that this act violates several fundamental constitutional rights of working women in the public sector.
First, it is a violation of women's equality under section 15 of the Charter. The act introduces a new mechanism that will actually restrict the capacity of women in the public sector to claim and obtain pay equity.
For example, the introduction of the market forces criteria to evaluate whether work is of equal value undermines the ability of women to receive pay equity because market forces have historically and consistently undervalued women's work.
Some workers will be entirely excluded from accessing the new equitable compensation mechanism, since workers who belong to a job group comprised of between 55 per cent to 69 per cent women are no longer considered members of a female-predominant group. These women will be denied the right to participate in any process to address the issue of wage discrimination.
By requiring that unions and employers negotiate pay equity at the bargaining table, the act undermines the established principle that human rights cannot be traded against other terms and conditions of employment or waived by agreement. This effectively eviscerates the right to pay equity.
Second, the prohibition against union assistance or encouragement in filing a pay equity complaint constitutes a violation of the right to freedom of association guaranteed in section 2 of the Charter. It also precludes the unions from representing their members on crucial issues related to their working conditions, such as wage discrimination.
Finally, it prevents the unions from expressing their views and advising their members, violating the constitutional right to freedom of expression.
So, instead of moving forward and ensuring the progressive realization of the right of all women to pay equity as required by Canadian and international human rights law, the federal government has adopted regressive legislation that will seriously undermine the human rights of women.
The PSAC has initiated legal procedures to challenge this discriminatory and unfair legislation in court. We have also informed the United Nations Commission on the Status of Women of our intention to file a complaint against the federal government. The urgent notice of communications that we sent to the United Nations Commission on the Status of Women on March 5 is appended to our brief.
In closing, I wish to say that PSAC urges this committee to strongly condemn the Public Sector Equitable Compensation Act and recommend that this act be abrogated and replaced by a truly proactive federal pay equity law, as recommended by the Pay Equity Task Force in its report Pay Equity: A New Approach to a Fundamental Right. This would be a first step towards a proactive pay equity law that will make a real difference in the lives of working women.
Daphne Taras, Professor of Labour Relations, Haskayne School of Business, University of Calgary, as an individual: Thank you for inviting me to address your committee. I have a written submission, but let me start by saying that I am actually neutral. I represent no one but myself, perhaps a handful of students that are forced to listen to me every now and again in a business school. I have multidisciplinary training in labour and employment relations. I have no axe to grind whatever on pay equity. My point is to come as a mainstream labour relations scholar and point out some things that are uniquely problematic within the collective bargaining regime. A number of prohibitions in the act strike at the heart of collective bargaining and industrial relations and they are really quite unique.
I am here to object to the passage of those sections of the act as they are unnecessary intrusions into collective bargaining. It seems to me that, as I listened to the Treasury Board, the Treasury Board is very eager to have pay equity subject to collective bargaining in what they call the proactive regime; but they are not, through this act, allowing the industrial relations "full meal deal," which includes mid-contract grievances, fine tuning through well- thought board and arbitral hearings and decisions and the exercise of collective rights through the normal dispute resolution machinery.
A collective agreement is a living document, and it is subject to a great deal of mid-contract interpretation. It is not a dead document on which no one can comment and no developments can be made except those that are filed by individuals. That is absolutely antithetical to the way collective bargaining works in any jurisdiction in the country.
In particular, section 36 causes alarm. You have heard a lot about it. That section forbids employers and bargaining agents from encouraging or assisting employees in filing or proceeding with complaints up to a fine of $50,000.
In addition, some pieces of legislation, a sort of detritus of things at the back of the bill alarm me. Bill C-10 proposes consequential amendments to the Public Sector Labour Relations Act that prohibit individual grievances, prohibit unions from presenting group grievances and prohibit policy grievances by employers or unions. These are the people most likely to understand how to fine-tune pay equity while a contract is in place, while there are irritants in the system.
Section 36 in the consequential amendments deprives workers of asserting their rights by denying them access to readily available and low-cost expertise, and they deny the right of unions to be exclusive bargaining agents on behalf of employees and for undertaking conflict resolution steps that are very well accepted in Canadian industrial relations.
Here is why workers need assistance on pay equity: Pay equity is part of a world of work that is increasingly encrusted with statutes and laws that require expertise. Pay equity is among the most complex technical fields in the modern workplace. To operationalize the meaning of skill, effort and responsibility would occupy a cadre of experts like myself for many years, and we would still come to no particular agreement about what those regression lines prove, what outliers there are in the system, how to red circle, how to grandfather and how to actually implement. It is not nearly as easy as people say.
Then on top of that, the proposed act adds a vague 4(2)(b) clause, which introduces the notion of an employer's recruitment and retention needs taking into account market forces. Let me say: I do pay equity; I teach it; I am in the business school all the time. I do not have a clue what that means, so if I do not have a clue what that means, how will any individual complainant, without the 18 years of learning of labour relations, possibly figure out how to approach the board with an individual complaint?
Pay equity is also unique and not merely for its billion-dollar price tag. It involves assessments of groups, it involves understanding job classifications and it involves understanding historic pay patterns that are often confidential. It will be very difficult for an individual to mount a complaint even with the notion that an individual has access to information that involves such sweeping numbers of groups and such well-guarded information, even when it is given.
It is natural that people would turn to unions and they would turn to their human resources experts within their employer, but this act uniquely diverts workers from going to the very people who could help unravel the statutory regime that is creating a barbed wire barrier to their access to justice. Labour lawyers refer to litigation psychosis, which such individuals experience when they file complaints. They get completely wrapped up in their access to justice and denial of justice and so on, and it is very stressful for an individual to file any kind of complaint.
The good thing about unions and representatives is they say to an individual, you work, you just work, you do your job, let us fight for you; this is not for you to divert your energies, which are owed to your employer.
This legislation is very difficult because it does not allow workers to achieve the service through their union dues that they are entitled to receive, which is the right of having the union represent them on matters that are very important to them in the workplace.
I think it would be very difficult for the Charter section 1 wording that this kind of law could be demonstrably justified in a free and democratic society. The onus will be on the government to demonstrate that there is something proportionate that requires the deprivation of the right of access to union counsel or even employer. I do not think that the government will be able to make its onus for two reasons.
There are two comparable pieces of federal legislation: The Human Rights Act and the Public Sector Labour Relations Act. Both acts give deference to unions and to the right of consultation. The Equitable Compensation Act is a dramatic departure from the other two statutes that are of greatest relevance in setting the context for the labour relations system. Ironically, the Budget Implementation Act contains provisions that ask for union input and union consultation at the same time as workers are denied that consultation under the Equitable Compensation Act.
In a second relevant piece of legislation, the Public Service Labour Relations Act, there are two clauses that talk about representation. Clause 212 says:
212. An employee who is not included in a bargaining unit . . . may be represented by, any employee organization in the presentation or reference to adjudication of an individual grievance.
The public sector act allows for exactly the kind of expertise on complex matters that this act before us today denies.
I urge the Senate to read carefully the provisions of comparable acts in the same jurisdiction and in the provincial jurisdiction to see that section 36 and other similar provisions-prohibitions will fail the Charter test or will certainly provoke Charter challenges.
In closing, I want to create a picture for you based on my knowledge of history. Until the middle of the 1900s, employers often forced workers to sign what were called "yellow dog contracts" — that is, workers could not join unions as a condition of continued employment. I never thought that in 2009, I would find myself fighting provisions of a statute that deprive workers of association, a Charter right, as a condition of making a complaint. There are certain provisions in this act that I would label statutory yellow dog provisions. I would argue that these provisions have no place being enacted into Canadian law.
[Translation]
Geoffrey Grenville-Wood, General Counsel, Professional Institute of the Public Service of Canada: Thank you, Madam Chair. The Professional Institute of the Public Service of Canada represents about 57,000 professionals across Canada's public sector, the vast majority of whom work in the federal public service. Institute members work in the federal government's departments, agencies, Crown corporations, museums, archives, laboratories, research institutes and field research stations. Our members are directly affected by-indeed, singled out by — the Public Sector Equitable Compensation Act. It is our contention that the Act constitutes an unwarranted and unnecessary attack on the Charter rights of federal public service employees, and the unions representing them. This brief presents the Institute's analysis and criticisms of the act.
[English]
Last February, before the Standing Committee on Finance, the institute stated the position that the proposed pay equity legislation, found at Part 11 of Bill C-10, was too deeply flawed and should not be allowed to become law only by virtue of its inclusion in a broader and entirely unrelated piece of legislation. The Professional Institute of the Public Service of Canada, PIPS, recommended at that time that the government develop a stand-alone piece of legislation dealing with pay equity and allow it to receive the thoughtful considered debate and discussion it warranted.
By adopting the Budget Implementation Act without any amendment to Part 11, this government has demonstrated that it is not at all interested in improving the pay equity regime in the federal public sector.
In April of 2009, the Professional Institute of the Public Service of Canada filed an application for constitutional challenge against this legislation, as well as the partner bill of this one — I cannot remember what it is called now. It leaves such a bad taste in my mouth that I have wiped it from my memory.
Pay equity guarantees that women and men receive equal pay for work of equal value. Pay equity laws are a human right, and the remedy is to rectify and prevent the persistence and systematic wage discrimination experienced by women arising from their labour market occupational segregation and the prejudices and stereotypes sustained by labour market practises. These have under-described, undervalued and underpaid women and their work relative to men and their work. The reference to "market forces" in the act merely imports into the analysis that history. I think that is one of the most egregious parts of the bill. Furthermore, and as my colleagues have all said, including Professor Taras, this act violates Charter rights. It goes to the heart of section 15. As my colleague said, we have grave doubts. That is why we filed the constitutional challenge that this legislation will survive a section 1 analysis either.
In addition, we believe that this legislation violates our obligations under the International Labour Organization's conventions, which protect pay equity and the concept, which is now removed from the legislation, of equal pay for work of equal value. It is now being redefined, but that concept is enshrined in the International Labour Organization's conventions, to which we are a signatory.
Having restricted substantive rights to pay equity, this act restricts further, by fundamentally changing the processes by which pay equity is implemented and enforced, as we have heard from many of my colleagues today.
Pay equity for unionized employees must now be dealt with, if raised at all, by employers and unions through the collective bargaining process. Pay equity is now to be treated as any other issue to be bargained rather than as an independent human right to equal pay for work of equal value. Anyone who tells you that this is similar to Ontario, Manitoba, Quebec or any other provincial legislation is just dead wrong. It is not. In those provinces, although the unions are involved in collective bargaining of pay equity, it is a separate process. You do not have to weigh interests of employees on obtaining wages and wage increases against the right of female predominant employees to pay equity. That is what we are being asked to do, as unions, at the collective bargaining table, namely, to weigh rights against interests. That is unacceptable and a denial of rights.
Beyond these significant changes, the act contains serious process flaws which will limit pay equity protections likely to be achieved by public sector employees and thereby permit sex-based wage discrimination to continue in the federal public service. These flaws include the fact that the act contains no clear proactive obligation on employers to review pay practices and identify any wage discrimination. It does not refer to the requirement to compare female predominant work with male-predominant work.
It seems that is being left to an individual complainant before the Public Service Labour Relations Board. As my colleague has indicated, the matter is so complex, it really is impossible for an individual to advance that kind of complaint without assistance from experts and their union. Furthermore, it imposes no obligation on employers to provide unions or employees with all the necessary information to enforce the right to pay equity, including the need to have information about pay and the skill effort, responsibility and working conditions of male- and female- predominant workers. The act makes no provision for the parties to carry out a joint compensation assessment as is currently required under the Canadian Human Rights Act.
Finally, it provides no human rights dispute resolution mechanism for unions and employers to resolve any differences concerning pay equity. If the parties cannot agree on an equitable compensation plan, the only recourse is for the union to go on strike or to pursue interest arbitration to enforce the employer's pay equity obligations.
The act severely restricts the pay equity remedies that are currently available to public sector employees in several ways, thus permitting and perpetuating the conditions of sex-based wage discrimination. This includes any pay adjustments provided under the act as subject to the caps on wages contained in the Expenditure Restraint Act. That is the name of the act I could not remember earlier.
Furthermore, it altogether denies or delays pay equity adjustments. Sex-based pay gaps under the act for unionized employees will remain unaddressed between collective agreements. The earliest date that adjustments agreed to or imposed can take effect is the date on which a new collective agreement becomes effective. Moreover, many pay equity adjustments will not take effect as of this date, as the act allows employers to delay the implementation of pay equity for a reasonable period, without definition of a "reasonable period." I refer you to sections 24 and 33 of the act.
The Public Service Labour Relations Board is required to apply a deferential standard — a very deferential standard — when determining whether employees have been provided with equitable compensation. The board will only rule in favour of an employee if it determines that the employer or the union has committed an error that is manifestly unreasonable. That is not a standard known to Canadian law. There are lots of standards of review of decisions made by tribunals and everything else, but "manifestly unreasonable" is not one of those. Why it was created, I leave to your imaginations.
In effect, the legislation imposes this highly-deferential standard in a situation where you are really talking about the infringement of a fundamental right; you are interfering even at that level with the exercise of rights. The act limits remedies available through interest arbitration by incorporating by reference through restriction on the content of collective agreements found in the Public Service Labour Relations Act.
Finally and in conclusion, I repeat what I said a moment ago: If anyone tries to tell you that it is similar to legislation in Ontario, Manitoba, Quebec and other provinces, they are dead wrong and one should analyze those acts before making those kinds of statements.
Senator Jaffer: How much were you consulted before this act was put into place? Did you have any input? The unions are supposed to be a 50 per cent partner on this, I would say, and did you have that kind of consultation?
Mr. Grenville-Wood: On the part of the professional institute, there was absolutely no consultation whatsoever. I would say we were blind-sided by this legislation. We were not expecting it, really.
Ms. Ducharme: The Public Service Alliance of Canada was not consulted or advised in advance.
Mr. Isaacs: The same is true for ACFO.
Senator Jaffer: How can you represent all these interests at the bargaining table in the sense of which group do you represent? Conflict is created. Your hands are tied behind your back. I do not know how you would bargain in this kind of situation. You are better at this than I am. Perhaps you can disabuse me that I am wrong; that you can do this.
Ms. Ducharme: As someone who sat as a member on three different national bargaining teams and who is responsible nationally now as one of the two national officers for negotiations, I can tell you that, maybe if we got an employer to the table who wanted to negotiate, we could make progress at the bargaining table on issues.
However, I take your point. I think the dynamic will be set up where members with different human rights interests will be pitted one against the other. Quite frankly, that is not acceptable. It is not an acceptable position for the Government of Canada to be taking. It is something that my union does not want to participate in.
We want to negotiate bred-and-butter issues for our members, but we also have a positive obligation to ensure their human rights in the workplace and in society, as a whole, are protected.
Senator Jaffer: I have a question for Professor Taras. Professor, everything I have read about Manitoba, Ontario, and Quebec has been very different from this act. I am not a scholar. Can you tell us if these acts are different from the one we have in front of us?
I am still puzzled as to how you interpret "market forces" in the equitable compensation definition. I do not understand how retention and recruitment are found in pay equity. I do not know what that means. How do you put all of that in the pay equity? I know you already mentioned the retention and recruitment, so obviously I have heard you on that, but what does "market forces" mean? How do you analyze that?
Ms. Taras: I can speculate that, if you have a group in which there is a tremendous shortage and a pressing need, perhaps their salaries could go up and they would not be included. However, I really have no clue as to how it would be operationalized. I have never seen that provision with regard to pay equity. I thought that is what pay equity was meant to address, not reintroduce. Therefore, I am puzzled.
Senator Jaffer: Due to our recession and there being so few jobs around, maybe that means your salary goes down because there are so many other people who can take that job. It could mean that too, right?
Ms. Taras: It could and much of it is left to the bargaining power of unions and managers, and who has bargain power. While I understand my colleague at the bargaining table, unions are always balancing interests. They balance the interests of older, near-retirement people with the interests of people entering the workforce. They are under pressure to do two-tiered wage systems.
There is nothing so unique about pay equity that it would create a legislative regime that is so fundamentally different than any other labour code in the country. That is what really sort of smoked me out. You trade off members' interests, you bargain, but never have I seen people deprived of the right to file grievances. Never have I seen people forced into an individual rights regime in the middle of collective bargaining. This is unique, and I do not see it in any of the other pay equity acts in the country.
Senator Jaffer: Can you comment on the three other acts?
Ms. Taras: I have been advised to keep it short. I am obedient.
Senator Jaffer: How Manitoba, Ontario and Quebec's acts compare to this act is a different question.
The Chair: We will take it as a separate question, then. I am balancing competing senators.
Ms. Taras: It is a long answer.
Senator Nancy Ruth: Send it to us.
The Chair: Are you saying there are differences and it is too long to explain? Are there similarities that are too long to explain?
Ms. Taras: I would feel uncomfortable doing an on-the-spot critique of all of them. They are very different.
The Chair: If you wish to reflect on it and to file an answer with us later, that would be fine.
Senator Nancy Ruth: I have a question for Mr. Isaacs.
If I remember correctly, you said that there really was not a business case for this legislation. How would you measure a good or a bad business case for this legislation?
Mr. Isaacs: That is a good question. As an accountant, I have experience in the private and public sectors. The two pieces you look for are time and money. In terms of the Human Rights Commission, I did not see any analysis of what was wrong with the old regime. There did not seem to be any review of the processes. They talked about 20 years in some cases, which might be unique, and 6 years in other cases. You need to look at individual cases to determine why they took 15 years or 20 years. You have to look at the past procedure and ask yourself what is unique about the way it is being done today. You have to determine the safeguards in the steps of the new processes and the time frames.
From a business case point of view, you need to have a benchmark by determining how much it cost before; what the time frames were; and whether they can be categorized in terms of the various kinds of pay equity cases. That information would be advanced and looked at in terms of a new regime — how much it will cost, what the time frames will be, et cetera.
I often hear it said that it will take less time, and I will give you an example. Off the top of my head, a case can go into three or three and a half years; bargaining is another two years; and one more year to settle on an agreement. That is six years. If you have a pay equity complaint, you will not see settlement for at least six years. From a business point of view, consider how much money has been spent to reach the point of saying that a new regime is needed. I am not convinced that the old regime was broken. As a CFO, I would say that you have to prove that the old system is broken.
The old system was chronically underfunded and so from the outset, it did not have a chance of success. However, I do not know what the processes and flaws were in the old system. It is part of collective bargaining, which is flawed in its own way as well. The Public Service Staff Relations Board does not have the resources to handle this, which they admit. They have no expertise in this whatsoever so they will become the third party.
From a business point of view, if that were to land on my desk, there would be a great many challenges in terms of the way ahead.
Senator Brazeau: Thank you for the political comments to stir up the juices; that is certainly good for all of us. The reality is that we are dealing with a piece of legislation that has been democratically passed in both houses.
I will focus on some of the comments. The proactive system in the new regime is also found in the provincial regimes in Manitoba, New Brunswick, Quebec and Ontario, whereby both employers and unions have an obligation to work toward pay equity from the outset, as opposed to dealing with it subsequently.
If the provincial regimes are working, why would it not work federally?
Ms. Ducharme: In the provincial regimes that you identified, both employers and unions are tasked with the positive obligation of jointly developing a pay equity plan. There are separate bargaining teams who negotiate pay equity as a separate issue away from the main tables. There are expert pay equity tribunals that assist in the process.
In the Budget Implementation Act we have a meaningless enforcement mechanism that falls to the individual. By definition, pay equity complaints are group complaints. To suggest that individuals have the means or the personal fortitude to fight a government on a complaint as complex as this would not be well thought through. Individual public servants will not have access to information about pay rates or job descriptions. The complaint process is completely meaningless.
Senator Brazeau: Given the current complaint process, I assume that you would statistics on the time it takes and how much it would cost in time and in lawyer's fees. I believe it was Mr. Isaacs said that he has not seen enough proof that the current system is broken. Could you share with us how the current system is working?
Mr. Isaacs: I mentioned that the current system is chronically underfunded, in my opinion. When any program is chronically underfunded, it is not likely to succeed. Breaking it down from a business perspective, you must first look at the source of funding and at the mandate and whether it is achievable with those funds.
They simply do not have the resources to process the cases. That is fundamental. The old system has not stood the test of time in terms of incoming resources but that is not to say there is no chance for improvement. You would want to review the various steps in the complaint process and perhaps put some parameters around how long it takes for each phase of the complaint to move through the system.
Again, I do not know whether that is in place, but I do not think it is by the sounds of things.
Senator Brazeau: We have heard about the costs associated with some of these cases and the time they have taken. Am I wrong to assume that you would have those statistics on hand?
Mr. Isaacs: I do not have that information in terms of the old regime. I do not have a business case and there is no business case even for the new regime. You would expect that you would have had a business case with the statistics on the old regime before making these changes as they are legislated now. In that way, you would know what it cost then what it will cost with the new regime. As it is, we can only suspect that the duration will reduce once the regulations are in place.
Ms. Ducharme: If I may, I will respond as well. It is crucial for senators to appreciate that the length of time and cost related to pay equity complaints under the former human rights model is due in large part to the fact that the employer never admits to a pay gap and will fight to the bitter end. At each juncture, they appeal every case.
Needless to say, the Government of Canada has much more money than the average clerk or pay compensation adviser who works in the federal government. Quite frankly, for those people accessing and enforcing their rights through the human rights complaint process with their union representative was the only way to make that right meaningful. While the past process was not perfect, it provided access to representation for those workers and a meaningful way to exercise their human rights here in Canada.
Senator Mitchell: I appreciate your frustration. I feel it deeply. I believe that government can provide leadership and do good things, but all too often it does not. This is not only a lost opportunity, but it is also throwing away what it was doing, which is worse.
Specifically, they are replacing the terms "equal pay for work of equal value" with "equitable compensation." The argument is that somehow equitable compensation will be much more comprehensive with benefits, et cetera, but my understanding is equal pay for equal value already does that.
Is there anything to what they are saying about equitable compensation? Is there any reason or way that it would apply in other ways?
Mr. Isaacs: My experience in collective bargaining is that wages are easy to negotiate because I can look at other groups and say they get so much vacation, they get this allowance and that allowance, so it is tangible. Therefore, the give on that for the employer is quite easy. They have to have a reason not to deny me the same level of vacation pay — let us beat that one up a bit — than that of another group.
When it comes to salary, I am unique. I cannot use an argument that group X got 10 per cent, because they may say: Well, group X has 10 per cent because of market conditions. Under the old regime, if you say there is this issue of pay equity, they would not let you bring pay equity to the table.
In terms of saying you will look at the whole package, that is not how collective bargaining happens. You look at pieces that you know you can get as a union because they are already out there. There is an established precedent; someone has it. Salary is on its own; you cannot use another group other than some percentage of other wages of an equivalent group, but there is no mechanism to deal with the salary aspect, the compensation for pay equity.
Therefore, it is a separate piece that gets negotiated at the table. Your arguments will be market conditions, retention issues that you have and recruitment issues that you may have in the group. Again, those are pieces that they will try to bargain away, so you will start trading these things away.
In fact, you will trade things away in salaries for other pieces in this equitable compensation. When did you put pay equity in that? Can you say that you have a fundamental pay equity issue, so take that outside of the process? I think they are telling you, no, that you will put it back into the process and you will trade it off. They are telling you in the legislation that you are going to trade it off against all aspects of compensation, and that is problematic.
Senator Mitchell: A witness who appeared before the treasury committee pointed to the underlying criticism of unions in this act. It is implicit, if not explicit — in fact, I believe she was explicit — that the unions have to take their responsibility to address pay equity issues. They will encourage that by taking the complaints process off the table because if the complaints process is not on the table, then the unions will not be inclined to defer to it, and not address pay equity.
Have you been encouraged not to address pay equity issues because you knew that workers could go through the complaints process?
Ms. Ducharme: We currently negotiate with an antiquated classification system under which our members are classified. It is a 40-year-old classification standard that we have been trying to bring up to 2008-2009 so that people can have job descriptions that accurately describe the work that they do.
We have not managed to get into the meat of classification because Treasury Board will not negotiate classification at the bargaining table. We continue to make efforts to negotiate using this antiquated classification system. We have made many presentations to both the House of Commons and to the Senate on the issue of the classification system and, currently, we are doing some work under a memorandum of understanding with the employer to that ultimate end of dealing with the issue of classification.
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Senator Pépin: After working on women's equality issues for over 20 years, I am disappointed to find that Bill C-10 is unacceptable. If I understand correctly, the legislation represents a step back for women's rights, because the definition of "predominant female" has been changed to apply to groups composed of 70 per cent female employees rather than 50 per cent, before we even had time to react.
Earlier, I said to Ms. Laurendeau that regulations had to be drafted and a process followed. I also asked her if she was prepared to hold consultations and to work with different groups. She responded in the affirmative.
In your opinion, will the fact that you will be widely consulted change anything? Do you think you will be able to make some positive changes to the situation of women?
Does just knowing that you will be consulted and that you will be participating in the process open the door for you or are you still convinced that consultation is a pointless exercise, that you cannot win and that you will end up being disappointed?
Mr. Grenville-Wood: Unfortunately, I think any consultations on the regulations will serve no purpose whatsoever, because the principle at issue and the legislation will still be on the table. The regulations can merely expand on the principle and set out the rules of the game, but the principle will not change and it will still be unacceptable, because it violates the Charter. That is the problem.
Senator Pépin: I understand. So then, what do you intend to do?
Mr. Grenville-Wood: We intend to take the government to court on this matter, because we feel that the legislation is a complete violation of the Charter and as such, is unacceptable. We will await the court's finding.
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Ms. Ducharme: We may be asked to participate in a consultation process, but that will not change the legislation. We are stuck with the legislation as it is written and that received Royal Assent. Despite consultation, we have the legislation, as pointed out by the other senator.
Senator Stratton: You stated that the system has been chronically underfunded. Someone made that point.
Mr. Isaacs: I made that point.
Senator Stratton: When you say "chronic," is it two years, five years, ten years, or twenty years?
Mr. Isaacs: I have been the president of the Association of Canadian Financial Officers now for four years, and I have been involved with the association for almost 10 years, so I can tell you it has been for at least 10 years.
Senator Stratton: I am not expert in this field, but is not the fundamental issue to try to reduce the length of time for the resolution of these problems?
Someone on the panel said that the old system worked. If the old system worked, you would think that you would have the statistics to show us how the system works in the short time it takes to resolve the problems. Someone says you do not have that information. Surely to goodness, you would do that kind of research to show us that the system works, and here are the reasons why statistically; here is how long it takes to solve a problem. Why would you not have that information?
Mr. Isaacs: I said I was not convinced the old system is broken. The context was in a business case. The issue that we take in this process is the fact that there were no business cases at the beginning of the proposal of this legislation going forward, which was in accordance with the government of the day's accountability framework. It is significant, from the discussions you are having in this committee. One of the fundamentals in that accountability framework was whether there were significant impacts on the public service. There had to be a business case going forward. Here you have done the change; no business case.
Senator Stratton: You are telling us that the government has not made a business case, but you have not made a business case either. You said the system was not broken; it needs some repair. How? Where are your statistics to show that need?
Mr. Isaacs: The example, in terms of the old system, was to try to articulate the layout of a business case. Typically, to make a business case, you look at the old system to ask what is wrong and does it need adjustments or a complete overhaul.
I went further to say I am not convinced that the old system was broken, nor have I seen any information to make that point. I am not saying the old system was or was not broken; I am saying that because of a lack of a business case, I am not convinced that the old system was broken. The only measure I really have is people who have gone through the process and who know it better than I — I am not an expert in the process — and they say it is chronically underfunded; they do not have people. You need people to process cases.
Senator Stratton: I understand. I will not belabour the point, but I would like to see your business case to substantiate that statement.
Ms. Taras: Can I give some statistics? It is not so much on the human rights, the old pay equity system, but the average grievance time delay from the filing to the resolution by a third party arbitrator is between eight and nine months. There are many federal experiments on very fast conflict resolutions within labour relations. Within the railway industry, there is an office; within Canada Post there are expedited cases. There are ways, if the parties wish it, to have fast systems. The backlog that has plagued human rights is unique in labour relations. Other systems are working effectively. In those cases, very strong business cases have been made.
Senator McCoy: I do not think we are giving this panel quite enough time, and I apologize on behalf of us all, if you are feeling any kind of pressure. Certainly, I am. Yes, I have far more burning questions, and there is not enough time, given the importance of the subject we are discussing, to fully explore what is, as Dr. Taras said, a very complex subject, about which many of us at the table do not know enough.
One statement that we elicited from Ms. Laurendeau, who is in charge of all of this, is that she does not believe there are any groups who are suffering from the lack of pay equity. That would seem to corroborate your statement, Ms. Ducharme, that employers never admit that there is a pay equity problem.
The evidence that Ms. Laurendeau gave us, and I think you were in the room, Dr. Taras, when she did, was that because employees in the federal service under 35 years have a 97 per cent wage gap compared to the general population of Canada, which I think was 76 per cent or 78 per cent, she thinks therefore she has no problem.
I have two questions on that. First, it is my understanding that the wage gap has nothing to do with pay equity and is a totally misleading statistic. Second, could you explain why? I would turn to Dr. Taras to explain that, if you would. If any other members of the panel wish to comment, feel free.
Ms. Taras: It is problematic to compare the salaries of men and women in the general labour market because there are a disproportionate number of part-time workers within the women's workforce. Women enter and exit the labour force. One only needs to think about teachers and nurses and the ease with which they go on maternity leave and come back. Women have occupational clusters that are not typical of the federal civil service.
The wage gap is not pay equity. Pay equity scores comparables. You would look at identical duties or similar duties, skills, talents, responsibilities and working conditions, and you would plot them on regression lines. Then you would draw a line through it, and if it is tickety-boo on the other line, or close to it, you do not have a pay equity gap. If there are big distances from the line where women fall below the line and men are above the line, you then have significant differences.
Thus, a comparison of men and women in the labour market is very misleading and that is not what pay equity is intended to do.
Ms. Ducharme: There is a measurable gap that is reported annually, and for women 35 years to 65 years, the gap is approximately 30 per cent as a wage gap between what men and women earn.
Senator McCoy: Her statement was misleading on two counts. First, she restricted her comments to people under 35 years, and second, it is not an indicator of pay equity at all, to sum that up.
I am prepared to accept the expert opinion that we have received that this is unconstitutional legislation insofar as the restrictions on the right of association are concerned. It is yellow dog legislation, perhaps.
I am curious to know when PSAC filed its Charter complaint, and how long would that likely take to be resolved.
Ms. Ducharme: We filed it at the end of April for this piece of legislation in the Ontario Superior Court.
Senator McCoy: It is likely to take some years. Is my understanding correct that the whole legislative effort would be thrown out, or do you think they would cherry-pick and simply take out some sections?
Ms. Ducharme: We are certainly hoping that they would strike out the unconstitutional provisions.
Senator McCoy: Have you claimed that it is unconstitutional because it contravenes the Charter for gender reasons, association reasons and expression reasons?
Ms. Ducharme: Yes, but one of my legal advisers has just said to me that striking out the unconstitutional provisions would not leave much left as a piece of legislation.
The Chair: The Senate respects the courts and their right to make the final determination. I do not want either the public or anyone in this room to believe that we are pre-empting the very responsible role and rights of the court. We have noted that there is a court case and we proceeded to hear the evidence because we have been given this order to study the subject matter, but not to pre-empt the court in any way in its decision. I hope that is clear.
I have one question. The Bilson report of 2004 seems to have been factored into this legislation. I continue to hear about that report. Did any of you make representations to that committee or did any of you respond to it?
Ms. Ducharme: We made presentations both in writing and verbally in front of the Bilson committee on pay equity.
Mr. Isaacs: We did not.
The Chair: Mr. Grenville-Wood?
Mr. Grenville-Wood: I do not know. It was before my time at the institute, so I do not know the history. If we were invited, I am sure we made a representation.
The Chair: It is 9 o'clock. I want to ensure that everyone knows we received extensive briefs from many of you, which we much appreciate. They are detailed and address many of the issues within the subject matter that we want to study. You made previous presentations, but these briefs are up-to-date and I appreciate that. If we have questions arising from the briefs, we will come back to you.
If there is anything else that you wish to add upon further reflection, we would like to receive it also. However, we have run out of time this evening. If any of the senators have any further questions, our practice is to put them in writing and ask the witnesses to respond.
I want to thank all of you for coming this evening and for taking the time to make your presentations. I hope we gave you some equal opportunity in addressing the main concerns that you have. Your reports will do the rest.
Ms. Ducharme: I was hoping to make one point to Senator Stratton. The senator's question seemed to indicate that he has concerns about this piece of legislation being an effort by the government to fix the system. I simply want to underline that this item is in the Budget Implementation Act and normally, budget bills normally deal with money; they do not deal with fixing the system. I felt that it was important to underline that point.
Senator Nancy Ruth: Not so.
Senator Jaffer: I had a number of questions I was not able to ask because we ran out of time. May I give them to the clerk?
The Chair: Yes. That is very helpful.
I thank all of the witnesses again.
Honourable senators, we have to go in camera on other matters.
(The committee continued in camera.)