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Goals and Guiding Principles for Improved Pay Equity Provisions If we include federal and provincial legislation, Canada has more extensive and varied experience with pay equity than any other country. The federal pay equity provisions were among the first to be passed and have not been amended since 1977. At the provincial level, the most far-reaching laws are Ontario’s 1987 Pay Equity Act and Quebec’s 1997 Loi sur l’équité salariale, both of which outline steps and timetables for the achievement and maintenance of pay equity in the public and private sectors. The proactive model has the advantage of ensuring broad implementation, removing the need for complaints, fostering management-union cooperation, reducing ambiguity, making non-discriminatory wages a priority, and achieving pay equity at a clear point in time. Drawing upon the federal and provincial experience, and upon tribunal and court decisions, the Commission suggests that revised pay equity legislation should reflect the following objectives: - achievement of pay equity for people performing female-predominant work in the federal jurisdiction in a comprehensive and timely fashion;
- minimization of unnecessary administrative burdens and costs for those implementing pay equity;
- encouragement of cooperation rather than confrontation in the implementation of pay equity; and
- maintenance of pay equity once achieved.
What provisions will best advance these goals? The Commission proposes five guiding principles. First, it is essential to recognize that pay equity is a fundamental human right, and reflect this recognition in the legislation. Practically speaking, this means vesting the authority for overseeing implementation of the law with an independent agency. This could be the Commission, which has played this role to date, or an independent pay equity agency, as in Ontario and Quebec. The key point is that programs to protect and promote fundamental rights are most effective, and most credible, when they are handled by bodies operating at arms-length from government and from any political considerations. In order to carry out its mandate, the oversight agency will need to be furnished with sufficient resources and expertise, receive information from employers on actions taken to achieve pay equity, and have the authority to audit compliance. Secondly, there should be a transition to a uniform implementation scheme. This approach would not be dependent upon complaints but would apply pay equity consistently across the federal jurisdiction. This would also eliminate any competitive disadvantages stemming from uneven compliance, and prevent the extended delays and high legal expenditures that have characterized some cases under the current provisions. The law should list the steps organizations are required to take to achieve and maintain pay equity, and stipulate time frames for each step. Thirdly, the law should provide clear, purposive standards and definitions with respect to what work may be compared, how it is to be compared, how any wage adjustments are to be calculated, and how adjustments are to be integrated into wages. Clarity in the statute will help reduce the complexities of implementation and ensure that people performing female-predominant work are not denied pay equity on technical grounds. Fourthly, the constructive involvement of employees and their bargaining agents in the pay equity process should be ensured. Pay equity should be a collaborative undertaking based on a shared commitment to eliminating wage discrimination. Unions can best be engaged in pay equity as partners, not complainants, and employees in non-unionized workplaces should also have a voice in the achievement of pay equity in the workplace. Union and employee participation enhances the breadth of knowledge among those guiding pay equity implementation — thereby making the process more reliable — and improves the odds of wider employee support for the final results. Finally, the updated provisions should mandate information and training programs, both by the oversight agency and organizations covered by the law. Pay equity can appear more complicated than it really is, fuelling confusion and suspicion. The provision of user-friendly material and tools by the oversight agency will facilitate pay equity activities and keep down administrative costs, reducing, for example, the need to rely on external consultants. More generally, good information and communications will help demystify pay equity, leading to a higher quality, smoother implementation process and fewer misunderstandings. In the 1999 ruling which prompted resolution of the federal public service case, Federal Court Justice John Evans wrote that, in line with the quasi-constitutional status of the Canadian Human Rights Act, it makes sense to interpret its pay equity provisions in ways that reflect growing experience. When the CHRA was passed, he wrote: Parliament was aware that section 11 represented more a statement of principle than a complete prescription. It is consistent with Parliament's intention that the "living tree" of the Act should be nourished by the experience of other jurisdictions in dealing with the social injustice at which section 11 is aimed: systemic wage discrimination for work of equal value resulting from the historical segregation of the labour world by gender, and the undervaluation of women's work.
The Commission believes that it is now possible, through legislation, to elaborate and enhance federal pay equity provisions, building on a range of experience and jurisprudence, and recognizing the fundamental nature of the issues at stake. Updated provisions based on the goals and principles outlined above will, in the Commission’s view, make an important contribution towards the removal of gender bias in compensation, the fair treatment of people doing typically "female" work, the reduction of economic inequalities, and the fulfilment of Canada’s obligations under international human rights instruments. Getting there will require both thoughtful reflection and a clear commitment on the part of the government to address the social injustice of which Mr. Justice Evans spoke. Canadian women, men employed in female-predominant fields, and the many families affected by wage discrimination deserve no less.
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