Equal pay for equal work is the most basic and commonly
understood concept related to the achievement of equality in pay between women and men in
the Canadian labour force. Persons performing identical jobs in a particular workplace
must be paid the same salary, regardless of their gender. Equal pay for equal work rules
seek to combat overt or direct forms of sex discrimination in the payment of wages. The
concept of equal pay for similar or substantially similar work also deals with direct
forms of pay discrimination by prohibiting employers from differentiating between the
wages paid to male and female employees who perform the same work but under different
titles (e.g., orderly and nurses’ aid). Most federal and provincial labour laws
contain these equal pay provisions.
Those advancing the concept of pay equity, or equal pay for work of
equal value, go one step further. They argue that pay inequities are a form of systemic
discrimination whereby the undervaluation and segregation of women’s work have become
integrated into employer pay systems. Under pay equity the intrinsic value of
different jobs is compared, rather than the jobs themselves. Jobs are determined to be of
"equal value" if the composite of skill, effort, responsibility and working
conditions that apply are the same, even if the jobs themselves are dissimilar. For
example, the work of nurses has been compared to that of police officers.
Those opposed to pay equity contend that a strict application of job
evaluation schemes to determine the appropriate pay structure for different positions
flies in the face of such labour market pay regulators as employer/employee negotiations
and workforce supply and demand. They also assert that sex is not the true predicator of
wages; rather, pay differences between men and women can be accounted for by different
personal characteristics and work patterns.
The federal approach to pay equity is essentially complaint-driven.
Section 11 of the Canadian Human Rights Act (CHRA) provides that it is a
discriminatory practice for an employer to establish or maintain differences in wages for
male and female employees who perform work of equal value. Upon receipt of an equal pay
complaint, the Canadian Human Rights Commission has the power to investigate and then to
settle, dismiss or refer the matter to a tribunal hearing for consideration and
resolution. On a more proactive track, the Department of Human Resources Development has
created an Equal Pay Program pursuant to section 182 of the Canada Labour Code in
order to promote voluntary employer compliance with the provisions of the CHRA. The
Program applies only to employers in the federally regulated private sector. In
encouraging these employers to comply with the law, the Program provides assistance,
advice and counsel. Where the employer still fails to implement a pay equity plan, the
matter may be referred to the Human Rights Commission for investigation and resolution.
The implementation and monitoring of pay equity within the federal public service is the
responsibility of the Treasury Board Secretariat.
Both proponents and opponents of pay equity agree that the current
federal system is not working, being too divisive, adversarial and litigious. For example,
alleging that the Canadian Human Rights Commission is biased in favour of pay equity
complainants, Bell Canada recently tried, unsuccessfully, to have the Federal Court of
Canada prevent a human rights tribunal from hearing pay equity complaints against the
company. These complaints are the largest yet involving a private company under the
federal pay equity law; a favourable ruling could cost Bell as much as $400 million.
Cost was also a factor in PSAC et al. v. Treasury Board, a long-standing pay
equity case that involved almost 30% of the federal public service and potentially
billions of dollars.
On 29 July 1998, a human rights tribunal upheld the equal pay complaint
of the Public Service Alliance of Canada (PSAC) and ordered the Treasury Board to adjust
the salaries of employees in the affected job categories to reflect the value of their
jobs relative to the value of jobs performed mostly by men. The Treasury Board appealed
this decision to the Federal Court of Canada (Trial Division), where it was dismissed. On
29 October 1999, the President of the Treasury Board of Canada, Lucienne Robillard, and
the Minister of Justice, Anne McLellan, announced that an agreement had been reached with
the PSAC on how to implement the Tribunal’s ruling and that the government would not
be appealing the Federal Court decision. Under the agreement, which has been endorsed by
the Tribunal, between $3.3 and $3.6 billion will be paid out retroactively to some 230,000
current and former federal public service employees.
The Minister of Justice has stated that the government intends to
review section 11 of the Canadian Human Rights Act to ensure clarity in the way pay
equity is implemented in the future. There are also indications that pay equity reforms
may be coming in the form of legislation whereby pay equity would be considered as an
element of pay and compensation, rather than of human rights.
SELECTED REFERENCES
Canadian Human Rights Commission, Pay Equity in the Public Service,
November 1999, available online at http://www.chrc-ccdp.ca/pe-ps/default.asp.
Coyne, Andrew. "Why We Don’t Need Pay Equity." Globe
and Mail (Toronto), 14 June 1995.
Lewis, Debra and Lisa Price. Just Give Us the Money. Women’s
Research Centre, Vancouver, 1988.
Human Resources Development Canada. Pay Equity, November
1999, available on line at http://www.hrdc-drhc.gc.ca/dept/guide98/lab4.shtml