Unions advocating equal pay

Unions advocating equal pay

What Happened

In 2009 the budget bill C-10 was passed in the House of Commons. The Conservatives, with the support of the Liberals, accepted it in its entirety. Within that package, however, came the Public Sector Equitable Compensation Act (PSECA), which not only sets a new standard for pay equity in the public sector but also redefines the role of unions, with negative impacts on the rights to freedom of expression, and freedom of association.

In 2004, the Pay Equity Task Force, a working group appointed by the federal government, published a report recommending that Parliament take an active part in working toward achieving pay equity. The Task Force advocated enacting a stand-alone pay equity act that would “be characterized as a human rights legislation,” so “that Canada can more effectively meet its international obligations and domestic commitments” (recommendation 5.1).

However, in 2009 and against the Pay Equity Task Force’s recommendation, the Harper government – with the support of the Liberals – enacted a new piece of pay equity legislation as part of omnibus budget bill C-10. The Public Service Equitable Compensation Act (PSECA) redefines the way pay equity between men and women is to be achieved in the public sector as well as the role of unions in defending it.

Redefining Equity

Vic Toews, then-President of the Treasury Board, welcomed the introduction of PSECA, seeing in it a solution to the shortcomings of the previous “lengthy, costly and adversarial complaint-based pay equity regime.”

Under this Act, however, the very nature of pay equity is altered. Margot Young, a law professor at the University of British Columbia explained to the weekly magazine MacLean’s: “There’s a wide consensus that pay equity is a human right. The new legislation [PSECA] effectively treats pay equity as if it’s not a human right.”

In fact, PSECA makes pay equity an item to be discussed at the bargaining table rather than a fundamental human right. The Professional Institute of the Public Service of Canada (PIPSC) points out that bargaining over pay equity under PSECA will not simply consist of practical discussions on how to enforce it. Indeed, the bargaining agents will first have to settle on whether or not pay equity programs will be put in place.

Moreover, section 4 of PSECA adds the influence of market forces to the previously existing list of determinants for the value of work. Human rights lawyer Mary Cornish has argued that this defeats the purpose of pay equity legislation: “The purpose of pay equity was to, in fact, intervene in order to redress what the forces of the market had done to women’s pay.”

Unions Under Attack

Beyond redefining pay equity, PSECA imposes illegitimate limits on union rights and obligations, argues the Public Service Alliance of Canada (PSAC).

Sections 36 and 41 force public service unions to refrain from assisting or encouraging their members to file equity complaints. In fact, unions found guilty of doing so face a $50,000 fine.

For PSAC, which strives to end all forms of discrimination, this constitutes a direct attack on their role in society. In fact, PSAC claims “the bill would impose a fine on a union for doing what it is legally obligated to do: represent its members!”

In its report to the Senate Standing Committee on Human Rights, the Professional Institute of the Public Service of Canada (PIPSC) explains further that sections 36 and 41 of the Act are not simply an attack on union prerogatives: they are an unconstitutional assault on union rights. For the PIPSC, these two sections actually violate two freedoms guaranteed by the Charter: freedom of expression, and freedom of association.

Challenges and Lawsuit

In March 2009, as bill C-10 was being debated in Parliament, New Democrat MP Thomas Mulcair put forward an amendment to remove PSECA from the omnibus budget bill. The proposed change was defeated by the Conservatives, with the support of the Liberals.

In April 2009, PSAC brought the case to Ontario Superior Court, challenging the Act’s compliance with the Charter of Rights and Freedoms. PIPSC filed a separate challenge. As of 2011, the Court is reviewing the evidence.

In 2009, PSAC also filed a ‘communication’ with the United Nations Commission on the Status of Women, to denounce the federal government. In addition to that, PSAC appeared before the House of Commons Standing Committee on the Status of Women, denounced the absence of a “truly proactive federal pay equity law,” and put forward its own recommendations to achieve pay equity.

While the Standing Committee on the Status of Women agreed with PSAC’s recommendations, the government has remained silent on the matter.

Finally, in the fall of 2010, Liberal MP Michael Ignatieff introduced a bill that seeks to revoke PSECA. It received full support from the PSAC, but never became law, as it was awaiting a second reading when the May 2011 General Elections were called.

Relevant Dates:

  • 1985-1986: The Canadian Human Rights Act becomes law. It prohibits all forms of discrimination, in particular discrimination based on “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.” In 1986, the Equal Wage Guidelines ensure that pay equity is considered a human right.
  • 2004: The Pay Equity Task Force’s report is published, and recommends that a separate act be written in order to ensure that pay equity is in fact established in Canada, not simply in theory but also in practice.
  • March 2009: The Harper government passes omnibus budget bill C-10. It includes the Public Service Equitable Compensation Act (PSECA), which radically redefines pay equity and the conditions for its application. Thomas Mulcair introduces an amendment to remove PSECA from budget bill C-10, but the amendment fails as the Liberals vote against it alongside the governing Conservatives.
  • April 2009: The Professional Institute of the Public Service of Canada (PIPSC) and the Public Service Alliance of Canada (PSAC) contest the legality of PSECA, and bring the case to the Ontario Superior Court of Justice. Additionally, PSAC brings PSECA to the United Nations Commission on the Status of Women, and appears before the House of Commons Standing Committee on the Status of Women to denounce the law.
  • Fall 2010: The Liberals introduce bill C-471, the Pay Equity Task Force Recommendation Act, which, if passed, would have repealed the PSECA. The bill, however, never became law.

Role or Position

Unions in Canada have a long-standing history of advocating equal rights for all workers. They have spearheaded the fight for employment and pay equity in Canada, and have been crucial to the enactment of legislation regarding equity in the workplace.

Implications and Consequences

  • Free Speech: Within the framework of PSECA, unions are not allowed to assist or encourage an individual to file an equity complaint. Moreover, if they are found guilty of either action, they are liable to pay a $50,000 fine. This effectively makes it illegal for unions to fulfil their role and speak up for their members.
  • Equality: Pay equity has now been relegated to an item for collective bargaining, rather than a fundamental human right which affects the equality of men and women in the workplace.
  • Equality: The enactment of PSECA undermines the principle it purports to defend: the principle of equal compensation for equal work.

Photo: Transforming Power