Waiting for Fairness

On November 17, the Supreme Court of Canada ruled in a major case involving pay equity first filed by the Public Service Alliance in 1983. The Supreme Court’s rare unanimous ruling from the bench (with reasons to eventually follow) overturned the Federal Court decision from 2010 and ordered Canada Post to make pay equity payments amounting to approximately $150 million to employees who worked in the clerical group of employees between 1982 and 2002. The issue concerned the fact that employees in the primarily female Clerical and Regulatory Group were paid less than employees in the primarily male Postal Operations Group.

The Union brought the complaint in August 1983 because the employees in the primarily male postal operations group were receiving wages up to 58% higher than those employees in the primarily female clerical group for work of equal value. The issue involved in pay equity is the issue of historical “group discount” on the basis of protected human rights grounds. So, in this case, although the value of the work of the two groups of workers was the same, the workers in the primarily female job class were paid much less because they were primarily female.

In the 1980s and 1990s a couple of comprehensive job evaluations were done in order to
determine whether the work was of equal value. In determining “value”, employers, unions, tribunals and courts use a “composite of the skill, effort, and responsibility required in the performance of the work, and the conditions under which the work is performed.” The job evaluations determined that the work performed by these two groups was of equal value even though the pay for the primarily female job class was much lower.

Because of the length of this dispute, in many cases the estates of these women will be receiving their pay equity adjustments.

Unfortunately, the Conservative government in Ottawa in 2009 stripped the Canadian Human Rights Tribunal of the authority to inquire into pay equity matters in the federal public service through the passage of the Public Sector Equitable Compensation Act.

The new act adds the following considerations to a pay equity complaint: “an employer’s recruitment and retention needs, the qualifications required to perform the work, and the market forces affecting employees with those qualifications.” The preamble to the act also has a nod to the fact that Canada is a market economy.

Of course, the problem is that inequitable wages, that is, unequal pay for work of equal value, emerges naturally in a market economy. The problem of systemic discrimination in the labour market is found in the creation and maintenance of wage structures that reflect a systemic undervaluing of women’s work because it is work primarily performed by women. Because the market cannot remedy a systemic undervaluing of certain kinds of work is precisely why a pay equity system is needed in the first place. The current situation for federal employees, in which pay equity is to be dealt with in collective bargaining and then through a complaint to the Public Service Labour Relations Board which will consider market conditions is terribly unlikely to achieve pay equity in the public service.

This case, which consumed more than 400 working days of human rights hearings between 1992 and 2003, demonstrates that Canadians need a better system for arriving at pay equity. It is, or should be, unacceptable that wage differences grounded primarily in gender stereotypes continue to persist in the Canadian labour market. Moreover, it is entirely unreasonable to expect Canadians to wait 28 years to resolve this kind of a dispute. Canada needs a new, and faster, system of pay equity. Twenty-eight years is too long to wait.

What do you think about pay equity? Did the Court get it right here? Should we have a better system?