Proceedings of the Standing Senate Committee on
Issue No. 85 - Evidence - December 6, 2018
OTTAWA, Thursday, December 6, 2018
The Standing Senate Committee on National Finance, to which was referred Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures, is meeting this day at 1:45 p.m. to continue its consideration of this bill (topic: Part 4, Division 14 — Pay Equity).
Senator André Pratte (Deputy Chair) in the chair.
The Deputy Chair: My name is André Pratte. I am the deputy chair of the committee and I will be chairing the first part of today’s meeting.
I now invite the honourable members to introduce themselves, starting on my left.
Senator Klyne: Marty Klyne, Saskatchewan.
Senator Boehm: Peter Boehm, Ontario.
Senator Forest: Éric Forest, Gulf region, Quebec.
Senator Marshall: Elizabeth Marshall, Newfoundland and Labrador.
The Deputy Chair: I also recognize the clerk of the committee, Gaëtane Lemay, and our two analysts, Alex Smith and Shaowei Pu, who team up to support the work of the Standing Senate Committee on National Finance.
We continue our consideration of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018, and other measures, which was referred to this committee by the Senate on December 4, 2018.
Today we will focus on one important measure introduced by Bill C-86, namely Division 14 of Part 4, which would enact a pay equity act.
We will hear two groups of witnesses. During the first hour, we will have the representatives of the Canadian Human Rights Commission, Ms. Monette Maillet and Ms. Fiona Keith. We also welcome, by video conference, Ms. Tanya van Biesen from Catalyst Canada Inc. Finally, we will hear from Ms. Denise Perron and Mr. François Trottier from Chartered Professionals in Human Resources Canada.
Welcome to all of you and thank you for being here. I have been informed that Ms. Maillet is the first to speak, followed by Ms. van Biesen and finally, Ms. Perron.
Ms. Maillet, the floor is yours.
Monette Maillet, Deputy Executive Director and Senior General Counsel, Canadian Human Rights Commission: Honourable members of the committee, good afternoon. Thank you for inviting the Canadian Human Rights Commission to take part in this discussion about the proposed pay equity legislation. Our Chief Commissioner, Marie-Claude Landry, sends her regrets for not being here today.
I would like to introduce my colleague Ms. Fiona Keith, senior counsel at the commission, who has considerable experience in pay equity matters.
Like other organizations, we have not had the time to examine the proposed pay equity act in exhaustive detail, but we are pleased to share with you two key messages today.
First, the Canadian Human Rights Commission welcomes the proposed pay equity legislation and the new role of the pay equity commissioner. This proactive regime will advance human rights, benefiting employees, employers and Canada as a whole.
Second, the commission asks the committee to consider a small amendment to the proposed purpose clause, which we believe will ensure that the legislation is interpreted from a human rights perspective.
The commission has a mandate to promote and protect human rights in Canada under the Canadian Human Rights Act, which promises equality of opportunity and freedom from discrimination. The commission also conducts audits under the Employment Equity Act.
Fundamentally, human rights are about putting people first. We believe this legislation is a step in the right direction.
This new law will not only address the long-standing and systemic gender-based wage discrimination that women experience in the workplace, but it will also strengthen knowledge and increase awareness of this issue.
The requirements to file pay equity plans and progress reports will ensure greater accountability and better monitoring. They will announce to the world that Canada’s employers have equitable employment practices and are therefore able to attract the best talent.
If this legislation delivers on its promise, it will create momentum for the realization of a truly fair and modern federal workforce. Most important, while the obligation to ensure that pay equity is the responsibility of the employer, the proposed legislation sets out a collaborative process to identify and analyze whether a systemic pay equity issue exists.
This is a much-needed shift from the current regime which requires that an individual employee make a case on her own, sometimes putting her job or her livelihood at stake. In other instances, employers and bargaining agents are embroiled in disputes and expensive litigation that can go on for years.
Housing the pay equity commissioner within the Canadian Human Rights Commission will ensure that in the implementation of the pay equity provision the underlying principles of human rights are respected.
To ensure that the legislation as a whole is also interpreted with a human rights perspective, the commission would like to propose one amendment to the purpose clause. As you know, a purpose clause serves a unique objective. It describes to the public what Parliament intends. It is also an interpretive tool for administrative decision makers and courts.
This proposed pay equity legislation is intended to prevent and redress systemic gender-based wage discrimination. That is its purpose. As many stakeholders have already testified, we agree that including reference to the diverse needs of employers in the purpose clause may create confusion about the fundamental purpose of this legislation.
We understand the need for flexibility in implementing pay equity for employers. Achieving pay equity does not require that one approach fits all.
However, the commission is of the opinion that as it is currently written, the wording of the purpose clause may obscure the intention of Parliament, hindering the interpretation of the pay equity act and the protection of the human right to equal pay for work of equal value. It is for these reasons that the commission suggests removing the phrase “while taking into account the diverse needs of employers.”
In conclusion, the commission is eager to see this legislation pass and looks forward to the appointment of the pay equity commissioner, whose primary mandate is to support the implementation of this regime by employers, bargaining agents and employees.
Thank you. My colleague and I would be happy to answer your questions.
The Deputy Chair: Thank you, Ms. Maillet.
Tanya van Biesen, Executive Director, Catalyst Canada Inc.: Thank you for inviting Catalyst to provide input on this important issue.
Our goal as a non-profit organization is to help businesses around the world build workplaces where women and men of all backgrounds have equal opportunity to succeed, which is why Catalyst has been researching the issue of gender parity and workplace inclusion for more than 50 years.
In Canada, as many of you would know, women represent 50 per cent of the population, 60 per cent of university graduates, 47 per cent of the workforce, and make upward of 87 per cent of purchase decisions. Yet, women continue to be our most under-represented and underutilized talent pool.
Statistics Canada shows that a pay gap exists in every province and in every major occupational group, although there are some variations. The gap in annual earnings between men and women has barely budged over the past two decades, even as education levels among women have surpassed those of men. For every dollar of hourly wages a man working full time in Canada earns, a woman working full time earns about 88 cents. Canada, again as many of you would know, ranks fifteenth out of 29 OECD countries based on the hourly gender wage gap.
The Catalyst research, along with that of many others, shows that wage inequality starts early in a woman’s career and worsens over time. The majority of talent recruitment, talent development and compensation systems are not designed to correct early inequities. They’re built on the notion of meritocracy, an aspirational idea that we hold quite dear in Canada. However, research clearly shows that the notion of meritocracy can actually mask and reinforce bias in favour of the dominant group because merit is defined by those in power. In Canada, those in power are predominantly men.
The wage gap is rooted in outdated biases and cultural beliefs, as well as in societal structures that stand in the way of gender equality. These societal structures include a drastic lack of access to affordable child care, significant additional pressures placed on women to be the ones responsible for family care, and uneven or non-existent parental leave benefits in some cases.
On this final point, please note that we at Catalyst advocate for parental as opposed to maternity leave and benefits, which should be applied meaningfully to both women and men.
It is ultimately the responsibility of business leaders to make the necessary changes to their workplaces to address the inequalities between men and women. It is the government’s job to create the frameworks to support these changes and to measure their outcomes. As we know, what gets measured, gets managed.
I would also note that some women experience much larger opportunity and wage gaps than others, notably racialized and Indigenous women and women with disabilities, to the tune of between 16 and 48 per cent relative to non-racialized and non-Indigenous men and men without disabilities. This is a real concern for Canada. Not only are women being left behind, but racialized and disabled women are being left even further behind.
Turning to some possible tools to strengthen women’s economic security, the following actions by both government and business will help. The first is to conduct regular internal pay equity studies, analyses and audits to eliminate and ensure that a gender wage gap does not exist.
Iceland’s legislation requiring large companies and government agencies to undergo audits and prove they are in compliance with pay rules is a good example.
The second is to insist on transparency. While we believe this pay equity act is a very positive step in seeking to close the gender wage gap in Canada and is in fact superior in many ways to pay equity acts in other countries, this legislation does seem to be lacking in transparency.
As such, we would like to see companies that fall under this act be required to report annually to the pay equity commissioner, disclosing any and all pay gaps and their plans to remediate them. Ideally, this disclosure would be made publicly available to all Canadians.
The third is to re-evaluate negotiation policies and practices. While women negotiate both promotions and compensation as much as men do, research shows time and again that women are penalized when they do so.
Finally, as a way to increase women’s entry, participation, retention and representation in leadership and high-paying positions, I would point to evaluating recruitment, retention, promotion and talent development systems for evidence of gender bias.
We are at a significant point globally where the importance of securing equal opportunity for all has never been more discussed or more critical to our future. It is truly a world-wide conversation.
There is a strong belief that Canada is uniquely positioned to lead the world as the most inclusive society by harnessing the full power of its ever-evolving talent base. This talent will be of benefit to all and will propel economic growth and prosperity. For that reason, we are very supportive of this legislation, notwithstanding some of the amendments we recommend.
The Deputy Chair: Thank you.
Denise Perron, Representative, Chartered Professionals in Human Resources Canada: Thank you, Mr. Chair. CPHR Canada was very pleased to accept your invitation to testify today.
CPHR Canada is the national voice of the human resources profession. It represents over 27,000 chartered human resource counsellors in Canada.
I have myself been working in the pay and employment equity area for more than 25 years. I worked and still work as a consultant. I was also commissioner at the Quebec pay equity commission for several years. My colleague François Trottier has extensive expertise in the area of remuneration and pay equity in enterprises as well as in his consultancy work. Together we have probably seen over 400 pay equity programs. François and I work with organizations of every size. In 2018, we were chosen to train the members of the International Labour Organization on the application of the Canadian pay equity principle, and on the approach taken by various other countries.
We congratulate the government on its presentation of the pay equity bill. We have to remember that this is a right that is enshrined in the Equal Remuneration Convention of the International Labour Organization. Working on the recognition of this right is therefore part of the values of human resources specialists.
However, applying the pay equity principle is not easy. Based on our experience, we could have raised many topics in our brief. It does contain four main topics: A single pay equity committee must be created; requests must be submitted to the pay equity commissioner; salary gap assessments; and the content of the plan to be posted.
We think that the obligation placed on the employer to create a single pay equity committee is very commendable. Starting from the premise that equity must be universal, it does seem self-evident that positions within an organization, whether they are unionized or not, should all be compared. In practice, however, that is difficult to apply.
You need to have the employer, bargaining agents with sometimes divergent interests according to the groups they represent, as well as non-unionized employee representatives at the same table, and all of them must agree on one of the most difficult aspects in any business: the monetary value of the positions. Entrusting the responsibility for the organization’s universal plan to a pay equity committee may make things more cumbersome, and it may take considerably longer to create the plan, because of the inherent conflicts that will emerge.
The government’s pay equity legislation should permit the creation of separate plans when the employer and bargaining agent wish to avail themselves of that option.
We also recommend that the authorization of the pay equity commissioner not be required when an employer and a union wish to set up a separate pay equity program. We propose that in those cases where requests must absolutely be submitted to the commissioner, he or she be given a maximum period of 60 days to reply, in order not to delay the creation of the equity plans further.
Our Recommendations No. 4, 5, 6 and 7 are about the assessment of salary gaps. This is a very technical topic which is difficult to get into in a few minutes. However, it is important because the way in which you assess the remuneration discrepancies will determine whether the pay equity act will correct them or not.
We recommend that the compensation comparison for each female category be done with the average compensation for men’s categories in the same points band, and that the condition be removed, so that an adjustment may be made and so that the average compensation of the women’s categories be lower than the average men’s compensation in the same points band. We also recommend that a mathematical formula not be imposed when there is no male class in the same group. The law should instead set out the principle that the compensation of a female category be calculated in proportion to the closest male classes.
And to continue on the topic of assessing salary gaps, we recommend that the job-to-line comparison method be adopted rather than the line-to-line method.
You will find the details of these recommendations on pages 4, 5, 6 and 7 of our brief. However, I invite you to ask François and myself for clarifications if you wish.
As to the content of the plan, subsection 51(h) of the bill requires that the posted pay equity plan set out the results of the assessment. The point here is not to hide information from the employees, but it is very difficult to interpret point grades in isolation without knowing the reference parameters a working group or committee used to draw its conclusions. And so we think that the results of the assessment should remain confidential and stay within the pay equity committee or with the employer.
Our last recommendation concerns subsection 51(k). Adjustment calculations can be complex if a dollar adjustment is the only one permitted. In this regard, we recommend allowing that the postings express the salary adjustments either in dollars or as percentages of the compensation or the increase.
We thank you for this opportunity to present our brief, and we are entirely at your disposal to answer your questions.
The Deputy Chair: Thank you, Ms. Perron.
Senator Marshall: Who is covered by the legislation? From reading the briefing notes it is not everyone, so who is covered and who is not. What percentage of the workforce is covered?
Fiona Keith, Senior Counsel, Canadian Human Rights Commission: There are two dimensions to coverage. One is size of employer and one is type of employer. All employers with over 10 employees are covered, as you know.
With respect to type of employer, it is extremely broad. Certainly the public service is covered and virtually all private companies within federal jurisdiction. There are also changes being made to PESRA to ensure coverage of parliamentary employees.
Senator Marshall: Would that be what they refer to as federally regulated organizations?
Ms. Keith: Yes, you are right.
Senator Marshall: Is the private sector not covered by it also?
Ms. Keith: The private sector is covered.
Senator Marshall: I am trying to get a handle on what percentage of the Canadian workforce will be covered by this and who will be left behind.
Ms. Keith: The federally regulated workforce is much smaller than the provincially and territorially regulated, so pay equity in those jurisdictions is left to those governments. We know in Ontario and Quebec we have proactive pay equity legislation.
Numbers were provided when departmental officials testified before you on the first day. I can’t recall those but I can find them and send them to you. The percentage of employees in Canada in federal jurisdiction is quite small relative to other jurisdictions.
Senator Marshall: What will happen to the people who aren’t covered? Is there some plan in the future to bring them in under the legislation?
Ms. Keith: Employees who work for employers with fewer than 10 employees will continue to be covered by section 11 of the Canadian Human Rights Act, which is an equal work for equal value provision.
As for other employees in Canada, that will depend on the provincial or territorial governments in their particular jurisdiction.
Senator Marshall: My next question is for Ms. Perron because she seemed to allude to it in her opening remarks. Is there a template or formula you use to determine pay equity? How is it determined whether positions meet the pay equity requirements?
You must go in and analyze all the positions in an organization. Is that how you do it?
Ms. Perron: Starting with the jobs that are covered by a pay equity plan, we analyze the positions and thus determine which categories of positions are female-predominant and which are male-predominant; afterwards we assess them in a general way according to the points and factors method, a recognized job assessment method that is used by most large organizations. The jobs are assessed using four broad criteria, which are skills, responsibilities, physical and mental effort and working conditions. Afterwards, based on the points a position has obtained, we compare the women’s jobs to the men’s jobs of equal value, whether they are similar or different positions.
You mentioned physicians as an example, but it could be a computer technician, for instance, who according to a given grid, and the assessment method we used — this is a hypothetical example — obtained 750 points; if we had a female category, for instance, the position of library technician, which also was allocated 750 points or was in that same point spread, we would recommend that those two categories of jobs be compensated in the same way.
Senator Marshall: How do you make sure that it is applied consistently as you move from organization to organization? You just told us how you would generally do it, but how do you make sure it is being applied consistently as you move from organization to organization?
Ms. Perron: As for pay equity as it is presented in this bill, and as it is generally applied in Quebec and Ontario — the only places that have this type of proactive law — the comparisons are not done outside of the organization, but within it. So, a job’s value is not assessed and compared to the market, but to the other jobs in a given organization.
Senator Forest: Thank you very much for your presentations. At this time, the law requires that an employer review and update the salary equity plan every five years. Salaries are adjusted when the equity plan is made public. However, a decision handed down by the Supreme Court of Canada last May 10 states that the adjustment must be retroactive to the date where the wage discrimination started. The judges felt that otherwise, the law would in a sense be granting employers amnesty for the discrimination that took place prior to the assessments.
Do you feel the lack of a retroactivity provision in this bill will lead to problems?
François Trottier, Representative, Chartered Professionals in Human Resources Canada: Normally in proactive plans, the first time the plan is put into place, there is no retroactivity. The point is to correct a situation and the adjustments will begin as per the law after plans are posted.
However, when the plan is updated, according to this bill, five years would have elapsed. In Quebec, a Supreme Court judgment determined that there must be a retroactive adjustment that goes back to the event.
According to the analysis we did, insofar as retroactive adjustments are concerned, there would be a regulation regarding the updated plan, and it should contain rules governing retroactivity. So, there is no retroactivity following the initial plan, but later there is for the updated plan.
Senator Forest: From the moment when the plan is updated.
Mr. Trottier: Yes, but the details of the regulations are not in the law. Will it be from the date of the precipitating event, or another time? That will be specified in the regulations.
Ms. Keith: The bill is somewhat unclear on this provision. I know this has been canvassed before the committee.
The Supreme Court of Canada decision recognized that if the lack of retroactivity was an inducement to compliance it might be a relevant consideration to the section 1 defence under the Charter, depending on the overall legislative scheme.
The direct application isn’t clear but certainly this is an area of the bill that could be clarified.
The Chair: Ms. van Biesen, do you have any comments?
Ms. van Biesen: I do not.
Senator Forest: One of the points that seems quite onerous to me is in clause 20, which states that there must be a unanimous vote by the employees, and if there is no unanimity, according to the equity plan, it is up to the employer to decide. That condition seems quite exacting to me. We know that in Quebec, a simple majority is required. When your proposal says, Ms. Perron, that there should be different equity groups in a large organization where there are a great variety of positions, this seems like a big challenge; you would have to have a unanimous vote on each of the plan’s aspects, and we know that there are many.
What do you think about that?
Ms. Perron: I can answer based on my experience. According to the experience we have had in Quebec, having a single plan is a good thing. But as for unanimity, it is true that some prefer a majority vote. However, that method also means that there will always be a group of employees whose voice is not heard, and that is what happens among the larger group. There will be a group of employees who will have more weight than their colleagues with the employees’ representatives.
This unanimity issue causes a lot of problems, if, in the end, the employer makes the decision on his own. It’s not easy, I agree, but people try to arrive at a consensus. When you get to a point where the employer goes ahead on his own, he won’t do so long, because bad faith complaints will quickly be filed.
That is why our association asks that separate programs also be allowed. In Ontario, the pay equity act went completely in the other direction. You can’t have a single, one-size-fits all plan in Ontario. They must be separate programs, one per certified group, and one for non-unionized employees.
Quebec adopted a compromise solution, by recommending a single plan, but employers and unions that agree may have separate plans. In practice, in unionized environments, there were practically only separate plans. We have rarely seen — in fact, I don’t think I’ve seen one — committees where two unions sat. We’ve seen union and non-union plans — one certified group, the non-unionized employees, and the employer. But getting several unions and non-union employees together around the same table practically never happens, because it is an extremely long process. Even certified groups said that they wanted a separate plan for their members. Of course, this does slightly erode the principle of universal equity.
Ontario made its choice and said that pay equity had to be achieved someday. So, separate plans are allowed; it means you won’t get bogged down before a human rights commission or before a pay equity board — the CNESST in Quebec — for months or years because people can’t agree on the value of the work or other components of the pay equity plan.
Senator Forest: What I understand is that this sword of Damocles, the fact that the employer will make the decision if there is no unanimous agreement, aims to encourage the parties to come to a unanimous decision. Am I decoding your comments correctly?
Ms. Perron: Yes.
Senator Lankin: Thank you to all the witnesses who have appeared here today. I will begin with Ms. Maillet on the purpose clause that she raised.
We have had some specific conversations with government. I know my colleagues at this table had the opportunity in other conversations to pursue the government’s take on this. It’s interesting.
I understand from their perspective they put forward the commitment that it would be proactive legislation, keeping in mind the diversity of employers. The act sets that out in terms of class and size. It takes into account very well diversity of employers, subject to anything we here from FETCO when they come today.
Some of us were worried about the purpose clause and the government assured us that it is of no force and effect a purpose clause. My worry is that it will be used to shape interpretation, as you stated, either by the commissioner or others.
Do you believe it has that big an import, or is it just flagging this concern and looking to review it down the road? Would that be sufficient enough if the government is resistant to making that change right now?
Ms. Maillet: It’s hard to predict how it will be used in litigation or in whatever forum. At this point it is a flag for us that the purpose clause is meant to describe the purpose of the legislation. It goes a bit beyond that in this purpose clause.
Senator Lankin: On the method of job evaluation, Ms. Perron and/or Mr. Trottier, I have had the experience of negotiating gender neutral job evaluation in the job-to-job method you talked about as opposed to normalizing wage curves. I will also admit my sins that I was one of the legislators in Ontario that pushed for proxy pay equity, which has not worked but had really good intent.
Could you give us a little more information about your concerns about the salary curve comparison method? In what ways do you perhaps recommend those female predominant workplaces that don’t have male comparators. How do we address them either through methods in this legislation or potentially through the Human Rights Commission. Even though there is a prohibition on pay equity, there might still be room for discrimination. That’s to both of you.
Mr. Trottier: Good afternoon. Thank you for your question. As to the first question regarding our recommendation that women’s jobs be assessed using the men’s line, that recommendation was in the 2004 Bilson report, and to us it is the best way to arrive at pay equity. That was one of the recommendations in the report.
Every job occupied by a woman that is remunerated under the men’s line must be aligned with the curve. That is different in this bill, in that you will be comparing the women’s compensation line to the men’s line. When the women’s line, as in the example in our brief, is higher than the men’s line, no woman’s line is corrected, despite the existence of individual categories that are far removed from the compensation of male positions of equivalent value. That is why we prefer the methodology that uses the men’s line, rather than a line-to-line comparison.
Moreover, the line-to-line comparison creates additional complexity that has to be taken into account in the regulations, where you will have to generate multiplier factors in order to determine the adjustment; so it is even more complex.
Work environments where there are no male-predominant positions present a challenge when it comes to pay equity. At the provincial level, day cares or early childhood centres were frequent examples. I don’t know if you will see that kind of situation at the federal level. The bill states that methodologies will be adopted through regulations to solve that problem, or to see how equity can be achieved in those environments, but for the time being, there is no methodology in the bill.
Senator Lankin: I will wait until round two.
Senator Klyne: I support pay equity. It is the right thing to do, but hard or easy has nothing to do with it from that perspective.
This pay equity committee’s mandatory pay equity plan will have a profound effect. I am wondering what consultation, if any, you received or had with the government on these aspects. Were you consulted by the government?
Ms. Perron: If you are talking about the association as such, I can’t answer that. I think not.
Senator Klyne: I was just wondering if we were hearing for the first time some of your recommendations that the government hasn’t heard on this bill.
You have answered the question I think.
Ms. Perron: Our brief was the only one that was presented.
Senator Klyne: With respect to these pay equity committees, it sounds like it’s relatively straightforward. The pay equity committees of some of the smaller employers may struggle.
It is my understanding, if they can’t come up with a pay equity plan from the pay equity committee, they can apply for an exemption. Is that correct?
Ms. Keith: I note a couple of things. The pay equity commissioner has a specific mandate to assist parties in implementation. A number of mechanisms contemplated in the bill could do so, including providing dispute resolution services.
Education will be a really big focus in the initial years of implementation. There is also a provision to refer specific issues, where people kind of get stuck on implementation, to the Canadian Human Rights Tribunal to have an interim determination to assist the parties in keeping the process moving.
If the committee breaks down or is not able to move forward, the bill contemplates that the employer can apply to the pay equity commissioner, set out the situation and get approval to proceed unilaterally.
Senator Klyne: On that note, are there any provisions for an employer that might exert some undue pressures to force it to go to the pay equity commissioner instead of going around the pay equity committee?
Ms. Keith: I am not sure I understand the question.
Senator Klyne: If an employer was found to be exerting undue pressure to implement their own plan, is there some provisions to govern that type of behaviour?
Ms. Keith: There is provision to file complaints. Certainly complaints could be filed if employees had concerns of that nature.
In case it is helpful, I offer a general comment on the scheme that seems to be contemplated by the bill. The Canadian Human Rights Commission is very much still engaged in study of the bill, communication with the Department of Labour, the Department of Justice, and other people who have been more intricately involved with the development of the proposed legislation.
It very much looks like to us that the parties won’t be sent away to do this work by themselves. While it is their work to do, there is a very clear mandate for the pay equity commissioner to be there educating, supporting and helping parties resolve disputes.
Senator M. Deacon: There is no question, the pay equity act is extremely important and extremely timely.
There is complexity to it, and there are aspects where we may not know how they are going to go until we are going. I certainly respect that piece. I also know a lot of effort at the provincial and national levels has gone into pay equity work.
Could any of you comment on the symbiotic relationship between provincial and territorial efforts alongside national efforts to move into learning across this country about things we should make sure to pay attention to or things that we should run away from?
Ms. Perron: I will try to answer, but first can you clarify your question? When you say, “things we should make sure to pay attention to,” do you mean in other countries, or elsewhere in Canada?
Senator M. Deacon: I am very hungry to learn about what is going on in other countries but today it will be coast to coast to coast talk about our country.
Ms. Perron: The Canadian law draws much inspiration from the Quebec and Ontario approach, whether we are talking about determining which gender prevails in a category of jobs, or the factors that must be used to assess the positions, or the methods that are chosen. Earlier, I was talking about the big difference with Ontario. Ontario imposed separate plans, and the federal level went in the other direction. Pay equity based on job assessments is, generally-speaking, the approach we have in Quebec and Ontario. The important thing in pay equity is to determine which are the female and male categories, which tools will be used, how much weight will be given to each of the factors, and how we will determine whether or not there are discrepancies. That is where there are important differences. It would seem that the federal bill would apply better to very large groups, with the salary discrepancy assessment systems. It’s different from the Quebec approach and slightly different from Ontario.
Elsewhere in the world, women’s compensation is taken into account. The particular aspect of the approach used in Ontario, Canada and Quebec, is that people not only consider women’s salaries, but the salary associated with the job they occupy. That is very different. The men who are in a female job class will also benefit from salary adjustments since they are in a female position. But there are several similarities among the three laws.
Ms. van Biesen: I would like to echo what I just heard. We tend to undergenderize these things. We’re looking at male and female job categories, but it’s important to note that we need to be intellectually honest about it. In many sectors, most notably the care sectors, we would love to have men employed. They too should be evaluated and looked at on the basis of their compensation for those jobs and the value they add to society.
I would echo the comments around the value of the work as opposed to gender.
The Deputy Chair: Honourable senators, we have about 11 minutes remaining. Please make your questions as brief as possible.
Senator Forest-Niesing: I’d like to thank the witnesses for being with us today. I would like to hear what you have to say about the creation of the pay equity commissioner position. We have given the commissioner the powers needed to add the teeth we wanted him to have and to ensure compliance with the legislation. As I understand it, the commissioner will have the power to conduct his own investigations. Of course, there is the whole aspect of assistance and cooperation to reach agreements, but he has also been given powers to impose sanctions. Does it go far enough? Do you think this is adequate to achieve the objectives of the bill? I’ll leave it to you to debate who will answer.
Ms. Keith: Thank you for your question.
As I said earlier, the Canadian Human Rights Commission is still studying the bill. We have also had occasion recently to study Bill C-81 respecting the accessibility act. The powers of the two commissioners contemplated under these pieces of prospective legislation are largely comparable.
I would echo my comments that the focus of the proposed pay equity legislation is very much on proactive compliance by the parties, to be supported by the pay equity commissioner.
You’ve referred to enforcement powers. They are clearly present in the legislation. They include administrative monetary penalties, which is a new thing in this area. These are clearly to be used more as a last resort. I wouldn’t anticipate that the pay equity commissioner would start with those kinds of measures. They would start likely with measures of education, support and dispute resolution.
There are very clear powers to make interim rulings. This is very different from how the process unfolded since the Canadian Human Rights Act came into force. Sometimes we would have decades-long pieces of litigation that had no clarity with respect to interim issues. That simply will not be the case.
The commission supports this piece of legislation and the institution as proactive measures to achieve pay equity in federal jurisdiction. As Ms. Maillet said, we very much hope that the legislation will pass. Thank you.
Mr. Trottier: In Quebec legislation, the compliance rate of companies has increased significantly. The legislation was amended in 2009, I believe, to introduce a pay equity declaration. Each company must declare whether it has completed its fiscal year and specify the dates. The bill has already been inspired by it, because it is expected that there will be a more detailed declaration than that of Quebec. In Quebec, once the declaration was added to the legislation, the number of companies that complied with the legislation increased significantly, although there were no fines yet. It is really a tool that has made it possible to achieve better compliance with companies.
Senator Forest-Niesing: Thank you.
Ms. van Biesen: I would like to echo that. Our experience in Ontario is such that the pay equity commissioner is very effective. However, she is continually understaffed and under-resourced. Because it is proactive on behalf of the worker, there are many things that are missed.
In my view the legislation does not go far enough. I would agree with my colleague that coming back to transparency is critical. Ensuring that companies, and not individuals, are proactive in complying or stating that there are in compliance is also critical. In fact they should be identifying where the gaps may be and how they are remediating them on an annual basis.
Senator Marshall: I am back to the issue of consistency. If the pay equity regime was imposed on two identical employers with 20 employees each, the same number of men and women in identical jobs and the same salaries for each, would you get identical results?
Mr. Trottier: You won’t necessarily get the same results. For example, these are the same jobs, but a company will value qualifications more than another, or will value responsibilities much more for weighting points. So it may be that the same jobs in two different companies, which may not have the same mission, may not necessarily have the same number of points. Within the same company, gaps will be corrected, but there will be no equivalence with two separate companies.
Senator Marshall: Thank you.
Senator Lankin: I will emulate Senator Marshall by putting all my questions on the floor at once.
Ms. van Biesen, let me congratulate Catalyst and the impact it has had. In particular, when I was at United Way, Greater Toronto, some of the corporations I worked with like the large banks and others made great progress in working with you and supporting you.
You talked about audits. Another feature of that some stakeholders have put forward is the lack of provision for maintenance of these plans. The pay equity commissioner for Ontario, the most recent whose term ended last week, talked to us about the voluntary approach taken in Ontario and that many employers participated. That might be the same if they were asked around audits. I would like you to comment on that voluntary approach, absent it being in legislation.
A group of us are hoping to meet with the Minister of Status of Women and the Minister of Employment, Workforce Development, and Labour. We will raise the other issues you raised with them when we meet.
With the witnesses who are here present in the room, I want to raise the issue of lack of clarity. We are having trouble understanding the plain meaning of the words in a number of parts in the legislation.
You talked about what would be the interpretive impact of the purpose clause. I would point out the language of the employer and bargaining agent directing the representatives on their committees. Is that educating? I don’t know what “directing” means. I don’t know if you know what it means.
The language on where benefits are excluded from compensation under the pay equity act for part-time employees in the introduction to that section is unintelligible to me, but I do understand the impact of it.
It leads me to my specific question on whether or not you think a five-year review would be useful to look at the areas that we could set out to see how they unfold and how they’re interpreted. The legislation currently calls for a 10-year review of the whole bill.
I recognize that getting a commission up and running, getting actual plans in place in workplaces and any litigation take time. The government has said, “We think it will take 10 years before we could do such a review.” Do you think such a review could be helpful within a five-year period? I will just leave it at that for your comments.
The Deputy Chair: There were many questions in there.
Senator Lankin: No, there weren’t.
The Deputy Chair: Just one big, omnibus question. I would ask the witnesses to respond briefly, if possible.
Ms. van Biesen: I apologize, Senator Lankin. Just to clarify your question, you are asking whether it would be more effective to have audits put into the legislation. Was that your question?
Senator Lankin: No. They are currently not contemplated at all in the legislation. Do you think it is useful for us to urge the new pay equity commissioner to seek a voluntary submission from employers, along with maintenance of the plans, as has been done in Ontario, given it is absent from the Ontario legislation as well?
Ms. van Biesen: I absolutely do. I worry about anything voluntary, to be quite honest, but I think good governance requires these things be done and the best employers in the country will seek to do them.
Ms. Maillet: I will speak a bit about your five-year review, and then I will pass it on to our resident expert on pay equity.
A year after coming into force, the employer has three years to develop an employment equity plan. I question how much, as you properly indicated, we’ll know in five years. It takes quite a bit of time for employers to get up and running at the same time as having a chance to develop their pay equity plans.
Do you have anything else?
Ms. Keith: No.
Ms. Perron: If I may, I’d like to answer your first question about the instructions that the employer must give. In Quebec legislation, the employer is required to train members of the pay equity committee. The language seemed a little difficult to me, but I think the spirit of the provision is to indicate that the employer must train members of the pay equity committee.
From what I have seen in the federal bill, bargaining agents must train people as well. Finally, perhaps it would be better if the same training were given to all committee members so that they all have a consistent reading and understanding of the issues they will have to deal with.
Mr. Trottier: I would like to comment on your question on benefits. The bill includes total compensation, including base salaries, benefits, pension contributions, all of which are defined in the bill.
However, it is provided that if there are employees who, because of their employment status — for example, temporary employees versus permanent employees — are not entitled to group insurance or benefits, it isn’t the pay equity act that will give them access to these group insurance benefits. The absence of group insurance will not be addressed if it is related to employment status.
On the other hand, though, if there are two groups —we are talking about permanent jobs — and both have group insurance plans, both will be considered in the total compensation equation.
The Deputy Chair: Thank you very much.
Thank you to the witnesses.
Senator Percy Mockler (Chair) in the chair.
The Chair: Honourable senators, for the second part of our meeting we have before us, from FETCO, Federally Regulated Employers – Transportation and Communications, Derrick Hynes, President and Chief Executive Officer; from the Public Service Alliance of Canada, Magali Picard, National Executive Vice-President, and Helen Berry, Legal Officer; and from the Canadian Labour Congress, Vicky Smallman, National Director, Women’s and Human Rights.
To the witnesses, thank you very much for accepting our invitation and for sharing your opinions. Questions will follow from the senators.
Mr. Hynes, the floor is yours.
Derrick Hynes, President and Chief Executive Officer, FETCO: Mr. Chair, you seem a long way away from us at this end of the table. It’s usually a bit more of an intimate setting than I think this room affords, but it is a pleasure to be here. Thanks for the invitation to speak to you today on behalf of FETCO on Bill C-86. I have been before you on other issues. For those of you who do not know, I handed out our presentation. I hope you have received a copy of it.
FETCO represents federally regulated employers. Our organizations are largely transportation and communications firms. The companies I represent within this association of employers are large employers with household names within Canada. You have the list in front you, so I won’t read through it. Certainly they are organizations of which you are all aware.
We’re pleased to submit some comments on Bill C-86, Division 14 on the pay equity act. We have three introductory key messages.
First, as I am sure you have probably heard, we among other organizations were somewhat concerned to see this piece of legislation introduced in a budget omnibus bill. We have been critical of previous governments on this practice, so the same holds true here. This bill is nearly 900 pages long and has enormous diversity. We would have recommended stand-alone legislation on pay equity to provide the appropriate parliamentary time to fully review the bill, consistent with the tripartite consultation process that is typical when changes like this are made within the federal sector.
Second, as noted in many submissions that we’ve made to government on this issue and numerous public statements that our organization has made, FETCO and its member organizations are fully supportive of pay equity: equal pay for work of equal value. FETCO believes that there should be no wage gap between men and women, that closing this wage gap is important, and that where the portion of the wage gap caused by discriminatory pay practices should be rooted out and remedied. This is the right thing to do, and it simply makes business sense.
Third, FETCO’s ongoing concern with this bill and the process leading up to its largely centres around methodology and some of the methodological concerns I will present today. It’s clear the decision has been made to proceed with proactive pay equity. Our concern has always been that this may not be the best approach to root out wage discrimination where it exists.
Our worry is that this proactive approach will be costly and overly bureaucratic. It has not been proven to close the wage gap any better than the current complaints-based approach that we see in the federal sector. The position that we have advocated all along is rather than discard the process we have in the federal sector and replace it completely, we should focus on trying to improve it. We recognize that ship has largely sailed.
For that reason, we are here to provide some constructive feedback, as best we can, to the provisions contained in this bill, with some specific recommendations that we believe will help improve it.
First is that the authorities of the pay equity committees, those tasked with creating the pay equity plan, be scaled back so as to not allow employees to have full and open access to all union and non-union compensation data across the organization. We believe this level of detail under the act is not essential to establishing a pay equity plan.
Second is that the new pay equity committee in each organization have equal representation from employees and the employer. The bill currently has this slanted two-thirds toward the employee representation side. We believe equal representation on the committee seems intuitively fair to us.
The third is that employers be provided five years to complete the first pay equity plan, up from three in the bill, given that this new approach will be new for all federal employers. This will be a massive learning curve. More time would be appreciated.
Fourth is that the definition of establishment be left to the prerogative of each employer, or at least be managed via a consultative process within the pay equity committee so that it can be flexibly adapted to the culture and operating principles of each organization. Suffice it to say, there is enormous diversity within the federal sector. Our argument is that a one size fits all approach may not work. The choice to proceed with multiple plans should not, we believe, by default require pay equity commissioner approval.
Fifth is that in the event the commissioner ultimately retains authority over the decision around multiple plans, the criteria the commissioner will use when approving or rejecting this request be identified and spelled out within the act. The act is currently silent on this. It remains the FETCO position, as I have just noted, that a single plan should not necessarily be the default. The lack of clarity in the space around the role of the commissioner runs the risk of the process being caught up in unnecessary litigation.
Sixth is that the sheer volume of requests or issues that must be deferred to the commissioner as articulated throughout Division 14, and that the commissioner be required to respond to all requests with a decision within 60 days. Otherwise, delays will inevitably ensue. Our hope is to avoid unnecessary bureaucracy and leave employers and employee representatives at the heart of pay equity plan development. The act lacks clarity on the role of the commissioner. Many clauses point to the commissioner under the assumption that this one-window approach will result in better outcomes. This risks delays in the process.
Finally, specific to a point I raised earlier, and getting to subclause 51(h) of the act requiring the posting of the pay equity plan, including a description of the valuation method and the specific results of the valuation, we believe that exposing all these specific details should not be required by law. This level of detail should remain confidential within the pay equity committee or with the employer as appropriate. FETCO suggests deleting subsection 51(h) to address this concern.
I will be happy to take your questions.
Magali Picard, National Executive Vice-President, Public Service Alliance of Canada: Thank you for the opportunity to appear today to talk about the new pay equity act contained in Bill C-86.
Overall, the PSAC is pleased with the proposed pay equity act. For decades, our union has been at the forefront of fighting for women’s right to equal pay for work of equal value. While we have had successes, the time it took to get results through a complaint-based process often meant that the women who did the work and should have received the pay died before they saw a penny.
PSAC believes this act is a good step towards redressing existing pay inequities, while at the same time creating a culture where equal pay for work of equal value can flourish and become the norm. We are pleased to see that a pay equity commissioner is being established. However, it must have sufficient resources to be able to fulfill the important role of ensuring the successful implementation of the act.
While the new act is an important step, we have two very important concerns about it.
The wording in section 2 outlines the purpose of the act. It begins by asserting that the purpose of the act is to achieve pay equity through proactive means and to redress systemic gender-based discrimination in compensation. However, this laudable language is undermined by the following sentence: “while taking into account the diverse needs of employers.” PSAC is concerned that the inclusion of this statement in the purpose of the act may give employers significant legal weight to be able to challenge decisions of the commissioner.
Legal scholars and the Supreme Court of Canada have weighed in on the legal significance of the purpose clause in legislation. Our submission provides more detailed information on this.
We do not believe it was the government’s intention to undermine the objectives of the new, proactive law. For this reason, PSAC recommends that this committee amend section 2 by deleting the following: “while taking into account the diverse needs of employers.”
While we recognize that responsibility to achieve pay equity resides with the employer, there are multiple provisions in the act allowing an employer to apply to the commissioner to request flexibility, extensions and exemptions that will support the employer’s diverse needs. it’s already set out.
Our second concern is with section 20 in Part 1 of the act, which deals with decision-making on employer/employee pay equity committees. This provision requires all employee representatives on a committee to come to a unanimous decision or forfeit the employee-side vote, allowing the employer’s decision to prevail. In practice, this would give non-unionized employees a veto over the preferences of unionized employees — and vice versa — while also giving bargaining agents vetoes over each other’s proposals.
It is conceivable that this system would most significantly disadvantage representatives of female-dominated classes over those who may not have the same interest in having a robust pay equity plan.
While the Bilson report did raise concerns about minority voices being drowned out by larger, more established representatives using the Quebec model of majority decision-making, it did not recommend that the employer’s decision would prevail if the employee representatives could not agree.
Again, PSAC asks the committee to amend section 20 to read:
A decision of a group counts as a vote if a majority of the group agrees.
And to further amend section 20 by removing the following sentence:
If the members who represent employees cannot, as a group, reach a unanimous decision on a matter, that group forfeits its right to vote and the vote of the group of members who represents the employer prevails.
We believe these two amendments are essential to the effective implementation of the new law, and we urge the committee to amend the bill accordingly.
Ms. Berry and I will be pleased to answer any questions you may have. Thank you.
Vicky Smallman, National Director, Women’s and Human Rights, Canadian Labour Congress: Thank you for the opportunity to appear before you today on Division 14 of Bill C-86 respecting the pay equity act. We are glad to see legislation on the federal pay equity act finally tabled as working women have been calling for it for decades.
Many of the provisions in the act fulfill recommendations of the 2004 Pay Equity Task Force, also known as the Bilson report. They also meet some of the expectations the Canadian Labour Congress set out during the government’s consultation.
This historic legislation will hold employers accountable for proactively identifying and correcting systemic wage discrimination. It will put women working in the federal sector on a path toward equal pay for work of equal value.
We are pleased to see the bill provides for pay equity committees to both develop and review pay equity plans. The bill also establishes a pay equity commissioner to administer and enforce the bill, although we hope that the commissioner and their team will have the resources and capacity requiredto implement the legislation effectively. We agree with the employers on that part.
Some parts of the bill need to be changed to reinforce pay equity as a human right and to ensure the process works to accomplish the goal of ending systemic wage discrimination.
First, the purpose clause must be amended to remove the qualifying phrase:
. . . while taking into account the diverse needs of employers, . . . .
This language in this part of the act undermines the intentions of the act as well as the human right of equal pay for work of equal value.
If the intention of this language is to acknowledge that there are diverse types of employers with different realities and structures in the federal jurisdiction, we believe this is accomplished in the operational sections of the act. An acknowledgment is not required in the language setting out the act’s purpose.
Second, the language on voting in pay equity committees in subsection 20(1) states that a decision of employee groups must be unanimous or they forfeit the right to vote and the employer’s decision prevails. CLC has serious concerns about this section, particularly given the complexity of some enterprises and the number of bargaining agents or groups of employees involved. There is no requirement for unanimity in Quebec legislation; a majority agreement is required. We recommend the language be amended to reflect the Quebec approach.
Third, the language on maintenance provides for retroactivity where wage gaps have arisen in the interim between posting the original pay equity plan and the five-year review. However, it is retroactive to when the revised pay equity plan was posted and not to when the gap first occurred. The Supreme Court of Canada recently struck down a similar provision in Quebec’s legislation. The federal act should not replicate this unconstitutional language.
Finally, I will draw your attention to subsection 46(f) on compensation exemptions for precarious workers. This subsection allows for the exclusion of the non-receipt of compensation in the form of benefits that have monetary value due to the temporary, casual or seasonal nature of a position.
This language is inconsistent with the other changes in Bill C-86 to Part III of the Canada Labour Code regarding equal pay. It would also violate the determination of compensation within the current Canadian Human Rights Act, section 11, and the equal wage guidelines. Why are women now receiving less in the new federal law? The exemption should be removed.
Thank you for allowing me to share our recommendations today. You have our written submission, with a couple of additional recommendations, and we’re happy to answer questions.
Senator Lankin: We have heard other presentations today. As well, a number of us have met with various stakeholders and have heard a lot. The committee has been giving thought to everything you have raised.
I want to pursue, Ms. Smallman, the issue you raised with respect to part time and the definition of compensation. I found this one to be a bit of a brain teaser, trying to figure it out. The existing labour code wage is described as all compensation, including benefits, RRSP, pension plan, et cetera, but the new legislation for pay equality refers to rate of wages with no definition. If a part-time casual or seasonal worker makes a complaint under the new labour code, will it be interpreted differently or not? We don’t know. Will that take it down to just salaries and not the other things?
Then I look at the human rights language and the definition of wage which includes explicitly all forms of compensation, remuneration and value thereof. Forget gender; this would lead me to believe that a part-time person coming forward might be able to make a case for what they would be entitled to. If they weren’t getting anything but an equal base wage plus some remuneration of monetary value in lieu of actual benefits, the pay equity commission could exclude anything but the base wage. I think that is what we’re talking about, if it’s not already part of their compensation structure.
I could see the same person taking their case to three different places, hypothetically, and getting three different answers. That concerns me because there is an exclusion for the pay equity piece that they can’t take it over as a human rights piece. If I went as a man or woman, not claiming pay equity but claiming discrimination, would I get a different answer?
Has anyone with a legal perspective worked through those three scenarios? I have tried to get an answer, and I keep getting different answers from people.
Ms. Smallman: We did have this flagged by some of our legal experts as a problematic inconsistency that reinforced discrimination. The reality is that a lot of women are working part time in precarious positions. Why would we then embed this inconsistency in the approach?
It is odd that one part of Bill C-86 tries to address equal pay for part-time and seasonal workers, and another part of Bill C-86 undermines that altogether.
I would also note that the Bilson report specifically recommended that a total compensation approach be applied to proactive pay equity. To have an exemption for some categories of workers would be completely contrary to the principles described and put out there in the Bilson report.
Senator Lankin: I will direct this question to Mr. Hynes in an example I will use, but it’s a question anyone can respond to.
You made reference to this being not just omnibus legislation but the budget bill. The scope of the Senate is different from that of the House of Commons with respect to amendments. I think everyone understands that.
With the stakeholder feedback that we have heard, we’ve been thinking about a list of observations, perhaps, that seek to have the government initiate parliamentary reviews, looking at particular issues to see how things played out.
You raised for us today, Mr. Hynes, the issue of pay equity committees having access to all salary information within a workplace, whether unionized or non-unionized.
Is this the kind of thing you would see being useful to include in an observation to see how it played out if an amendment doesn’t come forward? The general question with respect to concerns that others have raised is: Do you think that’s a useful approach if an amendment doesn’t come forward?
Would you support a call for some kind of review of the pay equity act itself in six years? We heard five years may be too soon since it will take a while to get up and going. The current budget bill calls for a review in 10 years, which might be a long way down the road to understand the impact.
Mr. Hynes, there are two parts to that. First, would you see your concern in a list of observations as a positive response to what you’ve raised? Second, would you support a call on the government to initiate a parliamentary review, looking atthe issues that stakeholders have raised in a six-year time frame from proclamation?
Mr. Hynes: I heard several questions in there.
Senator Lankin: There were only two.
Mr. Hynes: I affirm your initial point around the use omnibus legislation. This is not a partisan comment at all. It’s the same comment we’ve made to the previous government.
The issue of pay equity is a critical one. It was a platform commitment of the government. We spent a lot of time on it. For it to be tucked in the back of a budget bill, we found disconcerting. In fact, it was in this same bill, and my colleague from the Canadian Labour Congress referenced this. There are also changes to the Canada Labour Code that we’re managing at the same time, so I would say that’s complicated.
To your point about access to the data, yes, that’s a real concern for employers. Compensation data is highly confidential. There is competitive advantage at play, especially when it comes to union versus non-union.
Our preference would be that some amendments be made to the bill recognizing the concerns that you’ve raised. If there could be some way of putting forward the substantial concerns we’ve raised in some commentary, I think that would be helpful.
In terms of reviewing the bill, I share the concerns raised by the last panel. I heard the end of it. After the coming into force, if we move it three or we would prefer five years down the road before the first pay equity plans come into force, we may not have a lot to look at in terms of a review. I acknowledge your concern that with this being embedded in a separate bill perhaps 10 years is too long of a timeline. We would certainly be open to a conversation around that issue.
Helen Berry, Legal Officer, Public Service Alliance of Canada: I find myself agreeing in the sense of moving forward with observations. We would like our amendments taken into account but understand the process.
As far as a review, there is the legislative review but there could also be a review of what the pay equity commissioner is seeing because that’s where disputes will end up. It’s a possibility in an annual report or something like that. It may be able to come sooner. That would be our suggestion.
Ms. Picard: I can answer in English, but I would prefer to do it in French, if you don’t mind.
I simply want to acknowledge that, despite the fact that this is included in an omnibus bill, this is a historic moment for women. We have been waiting for such a bill for so long. It is important, even if it isn’t perfect. We have only submitted two requests for amendments.
Regardless of that, we are very keen for such a bill to be implemented. If we want to be able to fully exercise the purpose of the law, transparency in revenues is paramount. If these revenues are hidden, it will be difficult for both a commissioner and a pay equity committee to make a complete analysis. Therefore, we demand full transparency. I represent more than 100,000 government workers. For decades, the income of all these employees has been available on the Internet. It is fully transparent and brings balance and respect for everyone.
As far as we’re concerned, we have no objection to the public sharing of workers’ incomes, whether unionized or not.
Ms. Smallman: I would add that this government has also signalled its intention to bring forward some legislation on pay transparency. We may see even more of this later on, even though it’s not specifically dealt with in the bill.
This was initially identified by us as a bit of a gap. We’re prepared to wait and see what the pay transparency approach will be, and then we can consider the bill as a whole.
I agree that a review earlier than 10 years is warranted to deal with this issue and others that were not explicitly addressed in the bill. For example, taking into account other grounds of discrimination and bringing an intersectional framework to wage discrimination were not at all dealt with.
Senator Pratte: I will start with Mr. Hynes. If I understand correctly, you’re asking for five years instead of three years to put in effect the pay equity plan. I don’t have the exact timeline, but there is already a period allowed for the formation of the pay equity committee and then for the committee to come up with a plan.
In the end, how long would it take with your proposed amendment for Canadians working in a woman-dominated job category to fill the gap between their remuneration and that of a man-dominated job?
Mr. Hynes: The legislation currently speaks to three years. Our recommendation was that it be extended to five years from the bill coming into force and the regulations being put into place.
I don’t think the forming of the committee extends those timelines. As I read the bill, as it is written today, it is three years from coming into force and our suggestion would be five, given that this going to be a steep learning curve. There will need to be, and the government has committed to this, training and assistance provided to ensure this is done in the right way.
Given that we are doing this on the first go-around and given that the bill speaks to a five-year maintenance cycle, it seemed reasonable to us that the first cycle would be a five-year cycle.
Senator Pratte: I guess I misunderstood the bill. I didn’t think that three years was the period of time it took to fill the remuneration gap. I thought it was the time period to come up with a plan to establish pay equity.
Mr. Hynes: I am sorry, that is correct. Then I think it’s five years to ensure.
Senator Pratte: It would take a substantial period of time, even with the act as it is, to reach real pay equity. That’s my concern with your suggestion.
I understand it’s a complicated process, but for mostly women workers who are involved it would take something like eight years to reach equity, which is a long time to wait. These workers have been waiting for a while to achieve equity.
My other question is for Ms. Picard, and perhaps the other witnesses as well. In the Bilson report, as I understand it, unanimity was recommended, but if there was no unanimity, it wasn’t the employer who decided. It seems to me that the matter was being referred to the commissioner.
Ms. Berry, you will respond. As I recall the Bilson report, there was not unanimity. It wouldn’t be the employer who decided. This is sent to the pay commissioner.
If you go with a majority vote, some groups of employees would be put aside a bit. Would keeping unanimity, as Bilson recommended, be a possible solution? However, if there is no unanimity, then this whole thing would be sent to the pay equity commissioner.
Ms. Berry: Yes, you’re correct. They use the term “consensus” in the task force report. They felt that the atmosphere of the pay equity groups could be creating consensus on many decisions.
To be honest, with the unanimity in this bill it may actually cause more problems than help in developing consensus between all the parties. If you couldn’t reach a consensus, employee groups against employee groups could go to the commissioner and she could help them through. They could either do some dispute resolution and try to get them to consensus, or make a decision at the end of the day.
That’s also open to employers and employees if they can’t decide. I think that’s a better option. We called for a majority from the Quebec legislation, mostly in reaction to the unanimity with the employer’s decision prevailing. It was just not on.
Senator Pratte: Would another possible solution be to facilitate the establishment of one pay equity plan per accredited group? For each union you would get a specific pay equity group.
Ms. Berry: That wouldn’t be an option we would choose. Public Service Alliance of Canada has numerous bargaining units in the federal public service. They are still, after 50 years, gender based for the most part. There are clerical workers who are mostly female and labourers and people like that who are mostly male. They don’t use the same tool to measure. They are separate bargaining units. Each bargaining unit had its own job evaluation.
You wouldn’t see any difference because they used different tools. We have to be able to measure the female-predominant groups against the male-predominant groups to see what the job value is.
Senator Forest: My question is for Mr. Hynes. Your organization is in favour of pay equity. Could you reassure me?
When I look at the seven recommendations you shared with us earlier, I have the impression that this creates an imbalance in favour of the employer, and therefore an inequity in the process. For example, when you ask for a reduction of the committee’s powers, I have the impression that, in the end, your recommendations would create an imbalance in the pay equity approach.
Mr. Hynes: Are you asking me if I agree or disagree with your assumption?
Senator Forest: No, I’m asking you to reassure me.
Mr. Hynes: My reassurance to you is our members are supportive of pay equity, full stop.
The concerns we raised here are around the mechanics of making it happen. Our rationale for coming today is to provide, we believe, some proposed amendments to the bill that we think will make the bill work better.
We have some concerns around the role of the commissioner. We have concerns around the required certainty for a single plan in the previous question that was asked.
We have raised some concerns that we think will become stumbling blocks to achieving pay equity. We would like to see those addressed so that we can achieve the desired outcome and get out of this world that we are in, which is largely litigation based.
Senator Forest: In fact, from a general point of view, in the perspective of the consensus vote or majority vote that you’re proposing, Ms. Picard, in the context of a single case, and you rightly point this out, it may enable bargaining agents to go up against colleagues. So we can see a form of bad faith within the process, but within the framework of a single pay equity plan, given the difference and the importance of associations, doesn’t majority voting, as can happen, have the effect of creating inequalities?
Ms. Picard: As far as we’re concerned, what’s important about this bill is not bringing pay equity up to the same level as negotiating a coffee break. The issues are related to the groups we represent. As far as we’re concerned, a majority doesn’t necessarily mean that we’ll be able to give priority to the issue of pay equity. I will ask Helen to continue because she’s our PSAC lawyer.
Ms. Berry: PSAC has a lot of experience. We expanded on this in the submission we put forward. It was kind of a last-minute thing.
We also have a lot of experience working with other bargaining agents, particularly the 17 different ones in the federal public service. We’ve been at the forefront of pay equity complaints under the human rights system.
About two weeks ago you heard representatives of the government saying their concern was that smaller bargaining agents would be drowned out by larger bargaining agents, or unrepresented employees may be drowned out by bargaining agent employees. The focus was on employees against employee group representatives.
We found that it wasn’t always large bargaining agents. It was actually minority bargaining agents. It depended on the gender of their members. We had difficulty doing our pay equity studies because we got resistance from bargaining agents that represent a lot of male groups. They felt it was an infringement on their members. Somehow, if it was given to women, it would be taken away from men.
I am not sure what the government is trying to address here. I think the Bilson report did a good job of talking about that and moving it to the commissioner. I don’t think what the government is trying to address here actually is going to be addressed by this provision.
Senator Forest: I have a supplementary question. Is the majority for you a simple majority? Is it two thirds-one third? At what level have you set the bar for a fair majority decision?
Ms. Berry: I think in the Quebec legislation it is 50 points plus 1, right?
Ms. Smallman: Yes.
Ms. Berry: I assume that’s what we would go for. It’s the cut-off of the unanimity that is the real concern. It’s all or nothing. Even trying to get majority and things like that extend the conversation. We’re very concerned that there may be people around the table who don’t necessarily benefit or want a gender-neutral job evaluation plan for their own reasons, for their bargaining agents’ reasons or for whomever they’re representing. Having to have unanimity is a very difficult situation for us.
Senator Forest: We agree that, between the simple majority and two thirds-one third, the negotiating perspective is different. Thank you.
The Chair: Thank you very much, honourable senators.
I have a question for the witnesses. In another life I sat at federal-provincial-territorial meetings where that issue came up at certain times.
From the experience you have had in the last 10, 15 or 20 years, to what extent have provincial pay equity laws reduced the gap in the compensation of male and female employees?
In addition, are there some areas of Canada that are better than other areas?
Ms. Berry: I have to be honest that I work mostly with the federally regulated system.
Ms. Smallman: Pay equity is only one tool to reduce the gender wage gap. We also need universal access to quality child care. We need to address occupational segregation. There are many examples.
When you talk about proactive pay equity laws, they are in Quebec and Ontario. Some other jurisdictions have pay equity in the public sector but not in the private sector.
When we were looking at and discussing our priorities for the federal legislation, we really looked to Ontario and Quebec as our main models. Will eliminate the gender wage gap? No, it will not, but it will make things fairer for women working in business and in the government.
Lots of other things go into pay disparity. I heard you talking to the last witnesses about the wage gap in terms of there not being a process for dealing with job classes where there are no male comparators. There are still a few areas where we will need to do a bit of work as we gain some experience with this legislation.
Mr. Hynes: It’s a great question. I reflect back to the Special Committee on Pay Equity that did its work two or three years ago. I appeared in front of that committee to present the employer perspective on this issue.
Something really striking happened that day because coincidentally the speakers right before me were two experts from Statistics Canada. They spoke of data across key jurisdictions for which pay equity had been implemented. They showed the wage gap for Ontario, Quebec and the federal sector over the past couple of decades.
What they showed in that data was quite interesting. First, they showed that there was a wage gap between men and women. I think we all agree that’s a problem. What they also showed was that the wage gap had been narrowing, which is good news.
What was most interesting about the data that they presented was that the wage gap was narrowing in Ontario, Quebec and the federal sector at almost exactly the same rate.
After seeing that data, the point we raised was: Why would we necessarily want to adopt a proactive approach if it isn’t necessarily proving to be any more effective?
To my colleague’s point, I agree that the wage gap is not just about pay equity. Given the fact that we have these proactive models in place in Ontario and Quebec and given the data shows they may not be any more effective in reducing the gap, that is certainly an area that brings concern to us.
Ms. Berry: I remember that meeting. A lot of that is because Ontario, Quebec and the federal level are dealing with public sector workers in a highly unionized workforce.
We can show the gap is smaller for pay equity in unionized workplaces because of collective bargaining and those kinds of things. You have to take that into account when looking at those statistics.
Senator Marshall: In terms of the pay equity commissioner, has there been any discussion with regard to the level of funding that will be required to resource that office?
Ms. Berry: We saw that in the recent economic statement. We read it as about $49 million or almost $50 million over five years for the commissioner, the Human Rights Commission and things like. I don’t remember exactly. That was for the public service.
I am mixing up my money, but there was some in the update.
Ms. Smallman: It has been flagged that it’s probably not enough. The Bilson report recommended a stand-alone commission. A commissioner under the rubric of the Human Rights Commission is not quite that.
We’re not really taking as much of an issue with it, provided that there is adequate resourcing, provided that it’s not just one person but they have a team, and provided that there is a specialized unit responsible for pay equity.
The government has also told us that it plans to add three additional members of the Canadian Human Rights Tribunal with expertise in pay equity to deal with any complaints that can’t be resolved by the commissioner. This is also promising because we don’t know, as we deal with this legislation, how it will play out.
We will have to pay careful attention to the budgets assigned. If the commissioner is expected to provide public awareness and education, training for employer and employee groups, mediation and dispute resolution and all of that, they will require a substantial amount of resources.
Senator Marshall: The $29 million sounds like it might be enough.
Ms. Smallman: Maybe. We will have to see.
The Chair: Thank you. That brings this session to a conclusion.
I would like to thank our witnesses for being here and for sharing their opinions and comments.
Honourable senators, before we adjourn I would like to remind you that we will be meeting tomorrow morning at nine o’clock in the Victoria Building to proceed to clause-by-clause consideration of Bill C-86.
(The committee adjourned.)