Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Equal Remuneration Convention, 1951 (No. 100) - Canada (Ratification: 1972)

The Committee notes the observations provided by the Canadian Labour Congress (CLC) referred to in the Government’s report as well as the Government’s reply thereto.

Legislative developments. Federal. The Committee recalls that the Public Sector Equitable Compensation Act (PSECA), adopted in 2009, was expected to come into force once regulations were enacted. The Committee notes that consultations with stakeholders on the development of the regulations have begun and are scheduled to end in 2012. The Government indicates that the PSECA was enacted with a view to ensuring equal remuneration for men and women for work of equal value and the Government considers that the Act fully complies with the obligations under the Convention. The Committee recalls that the PSECA provides for an equitable compensation assessment of female dominated job groups (to be defined by regulations) or job classes (defined as classes composed of at least 70 per cent female employees) to assess the value of the work performed, without gender bias, which assessment is to lead to a plan to address any equitable compensation matters. The Committee also notes that “job class” is defined in section 2 to mean “two or more positions in the same job group that have similar duties and responsibilities, require similar qualifications, are part of the same compensation plan and are within the same range of salary rates”. The Committee recalls that pursuant to the Convention, comparisons should be able to be made not only between jobs that have similar duties and responsibilities, require similar qualifications, are part of the same compensation plan or are within the same salary rate, but also between jobs that are entirely different in nature. It is not clear whether such comparison is provided for in the Act.

The Committee notes the continuing concerns expressed by the CLC which recommends that the Act be repealed and replaced by a proactive federal pay equity law, as initially recommended by the Pay Equity Task Force. The concerns raised by the CLC, which are similar to the concerns previously raised by the Parliamentary Standing Committee on the Status of Women in its June 2009 report, include the application of “market forces” as a standard to assess the value of work, the high threshold for defining a “female dominated group”, the difficulty for individual women in bringing a complaint, and the move from a rights-based approach to pay equity, as set out by the Canadian Human Rights Act, to equal remuneration being a matter for negotiation. The Committee recalls that although the criteria to assess the value of work performed are linked to skill, effort, responsibility and conditions of work under the Human Rights Act, the assessment under the PSECA can be limited by factors such as market forces which may be inherently gender-biased and may not adequately ensure a non-discriminatory assessment.

The Committee notes the Government’s indication that in the process of developing regulations to the PSECA, consultations are being undertaken with bargaining agents, employers, employees and others, and that the Government will be mindful of the impact of the regulations in implementing the policy goals of the legislation. The Government also indicates that under the PSECA, new positive obligations are established on employers and bargaining agents, including proactively examining compensation on a regular basis to determine whether there are any issues of equal remuneration that need to be addressed, as well as preparing reports and making them available to employees setting out how any identified equitable compensation matters are being resolved. The Committee notes that claims of non-compliance can be brought by employees to the Public Service Labour Relations Board, and that unionized employees continue to have access to other dispute resolution mechanisms such as arbitration and conciliation. The Committee also notes that employers and bargaining agents must refrain from “engaging in any conduct that may encourage or assist any employee in filing or proceeding with a complaint” under the Act (section 36); which is considered to be an offence and renders the offender liable on summary conviction to a fine not exceeding 50,000 Canadian dollars (CAD) (section 41). The Committee further notes the Government’s indication that a periodic review of compensation based on the principle of equal remuneration for work of equal value is included in the PSECA; occurring on a regular basis for unionized employees and required by employers under the Act for non-unionized employees in time frames that will be established in the forthcoming regulations.

The Committee asks the Government to provide information regarding the PSECA on the following:

• (i) the result of the consultations undertaken in the development of the regulations accompanying the PSECA, including any concerns raised and how such concerns have been addressed;
• (ii) the status of the adoption of the regulations and the bringing into force of the Act;
• (iii) how the equitable compensation on assessments are undertaken in practice, and how the right to equal remuneration for men and women for work of equal value is ensured in situations where the jobs being undertaken are of an entirely different nature, but are nevertheless of equal value;
• (iv) how it is ensured that assessments made under the PSECA are not gender biased, particularly given that factors such as market forces may be inherently gender biased;
• (v) any steps taken or envisaged to assist individual women in bringing complaints under the PSECA or to extend the procedures to permit collective claims;
• (vi) any steps taken or envisaged to ensure that the right to equal remuneration for men and women for work of equal value has not been diminished through the redefinition of the female dominated group or class.

Noting that assistance given to employees in filing or proceeding with a complaint is considered to be an offence under the PSECA, the Committee asks the Government to consider repealing this prohibition as it may hinder the application of the right to equal remuneration for work of equal value in practice.

Legislative developments. Provincial. The Committee notes that, under the New Brunswick Pay Equity Act, which came into force on 1 April 2010, employers and bargaining groups have begun working on job evaluations using non-discriminatory job evaluation systems and were required to submit their reports by 31 May 2012 and start making pay adjustments on 1 April 2012. The Committee also notes that in Quebec, the Regulation respecting the report on pay equity (R.R.Q., c. E-12.001, r. 1) came into force on 1 March 2011, following the amendments brought to the Pay Equity Act in 2009, and indicates which employers are subject to the reporting obligation on pay equity and what information should be submitted by employers in their reports to determine whether they are effectively monitoring pay equity in their enterprise. The Government indicates that data would be compiled by autumn of 2012. The Committee also notes that Newfoundland and Labrador enacted the Human Rights Act in June 2010, which includes equal pay for work of equal value provisions similar to those found in earlier legislation. The Committee asks the Government to provide information on the implementation of the job evaluations conducted in New Brunswick, including regarding the reports submitted and any consequent pay adjustments. The Committee also asks the Government to provide information on the application of the revised Quebec Pay Equity Act and the Regulation respecting the report on pay equity, including on the number of employers that have reported and the data collected.

Work of equal value. In its previous observations, the Committee has been noting that in a number of Canadian jurisdictions, full legislative expression had not been given to the principle of equal remuneration for work of equal value, because the legislation limited comparisons to jobs involving the same work, similar work or substantially similar work. The Committee notes that the Government does not provide information on any changes in this regard. The Committee recalls that the legislation in Alberta, British Columbia, Newfoundland and Labrador, Saskatchewan, the North Territories and the Yukon does not give full legislative effect to the principle of equal remuneration for work of equal value; and that in jurisdictions with pay equity legislation applicable in the public sector, notably, Manitoba, New Brunswick, Nova Scotia and Prince Edward Island, there does not appear to be any progress in adopting similar legislation for the private sector. The CLC considers that the current state of Canada’s pay equity legislation remains inconsistent and in provinces that do not have any pay equity legislation, there are only inadequate provisions in provincial human rights legislation to rely upon. The Committee must once again urge the Government to take steps to ensure that the legislation in all the jurisdictions gives full expression to the concept of “work of equal value”, so that the principle of the Convention is applied in both the public and private sectors. The Committee asks the Government to provide detailed information on any steps taken in this regard, including regarding any consultations undertaken with workers’ and employers’ representatives and representatives of the provinces and the territories concerned.

Enforcement. The Committee notes with interest the decision of the Supreme Court of Canada in the case of Public Service Alliance of Canada v. Canada Post Corp, delivered 17 November 2011, reinstating a decision of the Canadian Human Rights Tribunal, finding that clerical work, performed mostly by women, was of equal value to the higher paying sorting and delivery work (postal operations) which was performed mainly by men. The Committee notes that the decision concerns jobs of a different nature but which were determined through the Hay method of job evaluation to be of equal value. The Committee notes with concern however, that the initial pay equity claim was filed pursuant to section 11 of the Canadian Human Rights Act, before the Canadian Human Rights Commission in 1983 with a final decision being rendered 28 years later. The Committee asks the Government to provide information on whether any steps are being taken or envisaged to ensure that remedies for equal remuneration are accessible, and available within a reasonable time.

The Committee is raising other points in a request addressed directly to the Government.