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An Overview of Pay Equity in Various Canadian Jurisdictions[ 1 ] October 2011

ISBN: 978-1-4435-8912-3 (HTML)
ISBN: 978-1-4435-8913-0 (PDF)
Issued: January 2012
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Provinces

Manitoba

Statute

Pay Equity Act

Summary of the Pay Equity Approach

Application

Public service employees and employers. Including public servants who work for certain "external agencies" and "crown entities"

Job Classes

A group of positions with the same or similar job duties, qualifications and same pay schedule.

Minimum size of a job class is 10 incumbents.

Gender Predominance

If 70% of the class are female or male it may be designated as a female or male – dominated job class.

For a large public sector employer [ >500 employees] gender-predominance may be agreed by the workplace parties.

For smaller public sector employer [fewer than 500 employees] a different threshold for gender predominance may be established by regulation.

Purposes

The objects and purposes of the Pay Equity Act (PEA) are set out in [section 2]:

Determination of Value

Composite of :

Pay Equity Act (PE) Planning/ Agreement

A Pay Equity (PE) agreement is negotiated between the government and all the bargaining agents which represent its employees.

Unrepresented employees who are not in a bargaining unit are represented for PE bargaining by a person whom they elect as a representative.

Where the work place parties cannot reach agreement on the calculation and implementation PE by the legislated time limit, they may elect arbitration.

Filing Requirements

Negotiated PE agreements are filed with the executive director of the Pay Equity Bureau by specified dates.

Pay Equity (PE) Achievement

Where the employer adjusts compensation of female-dominated job classes to equal the average schedule or grade of pay that is equal to the average or projected average rate of pay of male dominated job classes, the employer will be deemed to have complied with pay equity.

Enforcement and Dispute Resolution

Administration

A member of the Civil Service Commission is designated to oversee the implementation of pay equity within the civil service and provide reports about the implementation of PE to the executive director of the Pay Equity Bureau.

For External Agencies

An external agency [designated hospitals and universities] is required to designate a "PE officer" who is responsible for overseeing the implementation of PE and for submitting reports to the executive director of the Pay Equity Bureau.

Orders

Where the workplace parties do not agree on the definition of job classes, job evaluation system or quantum and / or process for implementing wage adjustments, the dispute is referred to arbitration by the executive director of the Pay Equity Bureau or by the workplace parties. An order settling any of those issues may be issued by the arbitrator.

Complaints

Where a PE agreement has been negotiated but wage adjustments are not being paid as required, a complaint may be made to the Manitoba Labour Board.

Dispute Resolution

Where the workplace parties cannot negotiate a PE plan they have recourse to arbitration or may seek the assistance of the Manitoba Labour Board to resolve disputes about the elements of the PE process [viz. job evaluation; definition of job classes etc.].

Pay Equity Wage Adjustments

Public service employers are required to pay out pay equity adjustments up to a maximum of 1% of the previous year's payroll for four consecutive years.

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New Brunswick

Statute

Pay Equity Act

Summary of the Pay Equity Approach

The Pay Equity Act (PEA), 2009 replaced the 1989 PEA which was repealed April 1st, 2010.

Application

Public sector employers with 10 or more employees.

Job Classes

A classification of 10 or more employees with similar skills and responsibilities and who are in the same wage schedule.

Gender Predominance

Where 60% or more of the incumbents in a classification are female or male, it may be considered to be a female or male dominated class or where the job is traditionally associated with one gender it may be considered female or male dominant.

Purposes

To implement pay equity in the public sector and specified parts of the civil service by comparing the wages and value of the work performed between male and female dominated work classes performing work of similar value.

Determination of Value

Criteria applied are a composite of:

Other factors

Differences in pay between male and female job classes may still be permitted where the employer can show they do not discriminate on the basis of gender and arise out of the following:

PE Planning/ PE Agreements

Pay equity is to be negotiated between public sector employers and employees through a collective bargaining process that is separate from the negotiation of the main employment contract. The Act provides a timetable for completing this PE negotiation process.

Within 60 days after the passage of the amended PEA:

Workplace parties are required to enter into a PE agreement within 24 months.

The employer determines how pay equity compensation will be apportioned [section 13(3)] among employees in the female-dominated job classes.

Employer must give notice to the union and the notice prevails over collective agreement provisions.

Filing Requirements

Where a pay equity process was in place/completed before 2010, the employer is required to report on the specifics of the process to the director of the Pay Equity Bureau.

If the director is satisfied that the process would satisfy the requirements of the amended PEA, the process of PE implementation continues If the director is not satisfied, then he/she may "provide advice to the employer with respect to achieving compliance" The employer is then required to get into compliance.

Within 25 months after the implementation of the PEA an employer is required to report to the Pay Equity Bureau on its progress toward achieving PE .

PE Achievement

S. 9 provides that the employer will have complied with PE when it adjusts its compensation practices so that female-dominated job classes are paid at a rate equal to the average or the projected average rate of pay for male-dominated classes performing work of equal or comparable value.

Maintenance

PEA requires maintenance of PE after it is achieved with a regular progress report to employees and the PE Bureau.

After pay equity is achieved, the employer is required to review its "pay equity compensation practices" and provide a report on them to the Pay Equity Bureau within 30 days after the review is complete.

The Pay Equity Bureau provides an annual report to the Minister about progress toward PE.

While bargained through a separate process, the agreed-upon PE salary adjustments are to be read as part of public sector collective agreements.

Enforcement and Dispute Resolution

Administration

The Pay Equity Bureau (PEB)

Orders

The PEB does not issue compliance orders but it does monitor compliance and provide compliance assistance to the workplace parties.

In addition to the employer's obligation to implement and maintain PE, the employer is also obliged to ensure that "employees affected by PE" are informed about the maintenance of PE from time to time.

Complaints

The PEA is not complaint driven but it does provide for the Pay Equity Bureau to monitor compliance and provide advice to employers about achieving PE.

Dispute Resolution

Where workplace parties cannot agree on a pay equity process an arbitrator may be appointed.

If the employees are represented by a trade union, the union and the employer split the costs of arbitration.

Where the employees are unrepresented, the employer pays the cost of arbitration.

Pay Equity Wage Adjustments

Limitations on the amount of payroll available for wage adjustments may be set out in regulations. [section 30(a)].

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Nova Scotia

Statute

Pay Equity Act

Summary of the Pay Equity Approach

Application

Public sector and specified parts of the MUSH sector as well as certain employees of defined "public sector corporations".

Job Classes

A job class is a group of positions with the same classification title, same or like qualifications and same salary grade or range of salary rates.

Gender Predominance

A group of 10 or more employees with the same employer in the same classification where 60% are male or female as the case may be is determined to be a male or female-dominated job class.

Purposes

To increase the pay of employees in classes which are predominantly female where it is determined by the process set out in this Act that by reason of sex discrimination, those employees are paid less than they should be.

PE Calculation

Within twenty-one months of the beginning of the PE process, the employer and the employee representatives are required to apply the evaluation system and compare the value of the work of female and male dominated job classes in the same unit or another unit of the employer.

PE Planning / Agreement

A pay equity plan is negotiated between the workplace parties. Once the PE process begins, the parties are required to agree on a gender-neutral job evaluation process and the definition of the male and female-dominated job classes within the first six months of the pay equity process.

If they cannot agree within 6 months on these parts of the process, the PEC has the authority to decide these matters.

The employees are entitled to receive their PE wage adjustments within 24 months after the PE process begins [section 15(1)].

PE Achievement

Pay equity is considered to have been achieved in a female-dominated job class:

Filing Requirements

Negotiated PE agreements are to be filed with the Pay Equity Commission (PEC).

Enforcement and Dispute Resolution

Administration Pay Equity Commission:

Orders

Complaints

Dispute Resolution

Pay Equity Commission is authorized to make determinations about job class and evaluation where in its opinion the parties are not applying the evaluation in a timely manner [section 13(2)].

Where the parties cannot agree on job evaluation and definition of classes, the Pay Equity Commission has authority under the PEA to make a final and binding decision about job evaluation system

Pay Equity Wage Adjustments

Employees are entitled to receive PE wage adjustments within 24 months of the beginning of the PE process.

Workplace parties negotiate timing, quantum and allocation of wage adjustments over a period which shall not exceed 4 years.

Where agreement is not reached within 24 months, the Commission has authority to determine these matters within a further two months and it may order equal distribution of the wage adjustments owed over four years.

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PEI

Statute

Pay Equity Act

Summary of the Pay Equity Approach

Application

Employers and employees in the public sector.

Job Classes

A group of positions involving duties and responsibilities so similar that it has the same or similar qualifications and same range of salaries is applied to all in the group.

Gender Predominance

Where 60% of a job class is male or female, it is accepted as a male or female-dominated job class.

In determining gender pre-dominance, the employer is also required to consider factors of historical incumbency, gender stereotypes and other factors as prescribed.

PE Calculations

Value for purposes of the PEA is based on a composite of skill, effort, responsibility and working conditions.

Permissible differences between wages of male and female-dominated job classes include:

Note: Where an employer asserts this "skills shortage" argument as justification for a wage differential between male and female job classes it must also provide additional information.

Purposes

Object of the Act is to redress systemic discrimination in wages paid for work by female-dominated job classes in the public sector.

PE Planning and Agreements

PEA sets out a 4 stage plan for negotiating the PE agreement:

  1. Nine months after negotiations begin, parties required to agree to single gender neutral job evaluation plan or system and define the job classes to which it applies
  2. Within 12 months after the end of stage 1, the parties are required to apply the evaluation system and determine PE adjustments.
  3. Within 3 months after the end of stage 2 the parties agree on the allocation of PE adjustments and
  4. No later than 24 months after the beginning of stage 1, PE adjustments are made until PE is achieved.

PEA [section 17(2)] also provides that PE bargaining must begin within 3 months after the Act comes into force for the public sector; within 15 months after the Act comes into force for the parts of the MUSH sector covered by the PEA.

Filing Requirements

The workplace parties are required to file a copy of the PE agreement with the Pay Equity Commissioner.

PE Achievement

PE is achieved when a public sector employer adjusts its compensation practices so that "female dominated job classes are assigned a schedule or range of pay equal to the average or projected average range of pay for male-dominated job classes performing work of equal or comparable value.

Enforcement and Dispute Resolution

Administration

Pay Equity Bureau in the Department of Community Services, Seniors and Labour administers the act.

Orders

Pay equity officers employed by the Bureau may require production of documents, summon witnesses, enter workplaces and issue compliance orders.

Complaints

Prior to the achievement of pay equity, the Pay Equity Commissioner – the CAO of the Bureau, may hear complaints from public sector bargaining agents and employees about non-compliance or discriminatory conduct related to the PE process.

Dispute Resolution

Where the parties cannot reach a bargained pay equity agreement, arbitration may be ordered to break an impasse about the PE plan.

Pay Equity (PE) Wage Adjustments

PE adjustments are made annually to a maximum of 1% of total payroll until PE is achieved. The adjustments may however be higher where ordered by the Bureau if necessary to address a retroactive award.

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Quebec

Statute

Pay Equity Act

Application

All employers with a minimum of 10 employees in the private and public sectors. Where an employer's work force grows to 10 employees over a year, it is required to comply with PEA starting January 1st of the following year.

Large employers [ >100 employees] are required to develop a PE plan.

Job Class

Members of a "job class" have.

Gender Predominance

As defined in [section 55] if a job class is 60% male or female it may be considered a male or female-predominant job class for pay equity purposes. Other criteria for determining gender predominance include:

Purposes

To "redress differences in compensation due to the systemic gender discrimination suffered by persons who occupy positions in predominantly female job classes".

Determination of Value

PE Planning/Agreements

Planning requirements vary according to the size of the employer.

For an employer with 100 or more employees

An enterprise-wide PE plan must developed by a pay equity committee, two-thirds of the committee shall represent employees and a minimum of 50% of the employee representatives must be women. Additional language in the Act requires the employee representatives to include representation from the male and female dominant job classes. If the employees or the trade unions that represent them do not agree on representation, then the employer must act alone to develop a PE plan for its employees.

For an employer with 50-99 employees

The employer may choose to set up a PE committee. The employer and the trade unions representing its employees jointly establish a PE plan.

For an employer with fewer than 50 employees

The employer is required to undertake a process to determine any compensation adjustments to ensure that employees in predominantly male and female job classes are paid the same remuneration for jobs of equal value compared through a gender-neutral evaluation.

Where the employer creates a PE plan, the PEA requires it to be filed with the PEC and to be posted publicly.

Schedule of Wage Adjustments

Any wage adjustments required to achieve pay equity must be paid out within 4 years after the employer is subject to the PEA. Annual payments to employees must be equal. Where an employer cannot meet the 4 year timetable for paying out PE wage adjustments that are owed, the PEC may authorize an extension for payouts of a maximum of 3 more years.

Filing Requirements

The PEC has the authority to require a report to be filed with it setting out the steps an employer has taken to implement and maintain PE. This includes the steps taken to complete a periodic PE compliance audit under [section 76(1)].

Achievement and Maintenance of PE

Since March 2011, employers which employ six or more employees in either private or public sector are required to submit an annual report certifying the size of the workforce and attesting to their fulfilment of their obligations under the Pay Equity Act [section 4].

Employers who achieved pay equity under the former (1996) PEA regime will be subject to a pay equity audit every 5 years. The first audits were due to occur in 2010.

Employers who had fewer than 10 employees in 1996 and were excluded from the PEA at that time were required to re-calculate the size of their labour forces effective 2008

Enforcement and Dispute Resolution

Administration

PEA is administered by the Pay Equity Commission.

Pay Equity Committees

Pay Equity Act (PEA) provides for the establishment of pay equity committees to represent employees in the development of a pay equity plan.

Sector-Based PE Committees

PEA requires the establishment of Sector-based PE Committees to provide advice and help with the development of PE plans by PE Committees or by employers [where they do not have a committee].

Reporting and Planning Obligations

If as a result of the application of the gender-neutral job evaluation system, a wage inequity is detected, the employer is obliged to adjust the pay of workers in female-predominant classes.

Quebec's PEA also includes annual reporting obligations for all legally registered employers of 6 or more employees in the private, public and par–public sectors including a requirement to attest compliance.

Employers are required to maintain information related to a pay equity plan until the plan has been completed.

Audit Process

Every five years after the date of the initial requirement to post a Pay Equity plan, the employer is obliged to conduct a PE audit [section 76(1)].

Where a PE plan had been completed and wage adjustments completed before March 12, 2009 – the required audit must be completed before December 31, 2010.

The employer is responsible for having the PE audit completed but also has discretion under [section 76(2)] to determine who shall conduct the PE audit [ e.g. the employer, a pay equity audit committee, or jointly by the employer and certified associations].

The audit report is required to be publicly posted in the workplace for 60 days along with information about:

Complaints

An accelerated process was instituted in January 2011 to expedite the investigation of complaints from workers in female-predominant classes who assert that they are not receiving equal pay for work of equal value.

The Pay Equity Commission (PEC) hears complaints. The Chair sitting with 2 commissioners may arbitrate a dispute over a pay equity plan.

Mediation/conciliation is available upon request of the parties. The investigator cannot act as a conciliator. PEC has authority to initiate an investigation on its own motion without receiving a complaint.

Dispute Resolution

The Quebec Labour Relations Board hears and rules on disputes.

Sunset Review

The amended legislation requires a report to the Quebec legislature no later than May 28, 2019 about the implementation of the Act and the advisability of maintaining or amending it.

Pay Equity Adjustments

Remedies

Financial penalties and fines are provided for in the Quebec legislation for employers which do not comply with the law and the regulations.

Penalties may be doubled for second or subsequent offences.

Unpaid wage adjustments are to be paid with interest.

Retroactivity

Where wage compensation is owed the maximum retroactivity period for the calculation of adjustments appears to be 5 years prior to the date a complaint was filed. [section 103(1)].

Stakeholder Advice

The Act provides for the establishment of a Partners' Advisory Committee which will provide advice to the Minister about "the carrying out of this Act" [section 95(1)]. The committee is to be representative of both workers, represented and unrepresented, and employers.

Schedule of Wage Adjustments

Any wage adjustments required to achieve pay equity must be paid out within 4 years after the employer is subject to the PEA.

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Federal Model

Statute

Public Sector Equitable Compensation Act* most of this statute is not yet in force.

NB - Pay Equity for the federal public service is currently governed by the requirements of the Canadian Human Rights Act and the guidelines under [section 11] of that Act which are established as regulations --"Equal Wages Guidelines, 1986".

Summary of the Pay Equity (PE) Approach

Public Sector Equitable Compensation Act was introduced in February 2009 as part of omnibus budget implementation legislation and passed.

Most of its provisions will come into effect on a date to be named.

Prior to the coming into force of the new law, gender discrimination in compensation was prohibited in the federal public service and federally– regulated workplaces under [section 11] of the Canadian Human Rights Act and the "Equal Wages Guidelines" published in 1986.

The Guidelines are a regulation under the Canadian Human Rights Act and they define a gender-based wage differential in an establishment as a discriminatory practice where employees are performing work of equal value. The Guidelines also specify that the value of work performed is to be based on a "composite of skill, effort, responsibility and working conditions". The remedy provided under the guidelines and the Canadian Human Rights Act is a complaint to the Canadian Human Rights Tribunal.

Application

The PSECA applies to the federal civil service but does not apply to federally-regulated private sector [telecoms , inter provincial transportation providers, financial institutions, etc].

The Act requires workplace parties to bargain PE as part of the regular collective bargaining process for wages and working conditions [in union-represented workplaces].

Imposes joint accountability on workers and employees to put "equitable compensation" into practice in union - represented workplaces.

In an un-represented workplace covered by the legislation, ensuring "equitable compensation" remains the sole obligation of the employer.

PE Planning and Agreements – Union-represented Employees

Prior to bargaining a new collective agreement, an employer and any recognized bargaining agent for its employees are obliged to undertake "preparatory work" to assess any equitable compensation issues for employees in female predominant job groups[> 70% female workers] and to negotiate them in the collective bargaining process [section 13]. Where the parties are unable to reach a collective agreement and arbitration or conciliation are adopted to break an impasse, equitable compensation may be settled by an arbitrator or conciliator.

Equitable compensation issues are to be addressed in the language of any proposed collective agreements that are taken to a bargaining unit for ratification. This would include a plan for resolving any equitable compensation dispute raised in bargaining either within the term of the agreement or within "a reasonable time" after the expiry of the agreement.

Enforcement and Dispute Resolution

Gender Predominance

A female dominated classification is established where 70% of employees in the job class are women. This is a higher threshold than required for larger employers under the previous federal model. The Equal Wages Guidelines which provide a sliding scale of percentages defining gender predominance - depending upon the size of the employer. The previous guidelines provided for the following calculations of gender-predominance: "70% if the occupational group has less than 100 members; 60% of the occupational group if it has 100-500 members; 55% if it has more than 500 members".

Reports

Employers of un-represented employees who determine that there is an equitable compensation issue are required to provide a report to the employees about the assessment process and develop a plan for resolving any "equitable compensation matters" the employer identified within a "reasonable time" and provide a copy of the plan to the employees.

Complaints – Unrepresented

Un-represented employees who raise concerns about the employer's assessment of equitable compensation are entitled to have them addressed within a specified time [to be set out in regulations under the legislation] by the employer. The employer is required to provide the employees with a written response to an employee's complaint which includes any measures it is planning to take to address a concern raised by the employees.

Un-represented employees also have a right to complain to the Public Service Labour Relations Board - instead of the Human Rights Commission – if they think that the employer has violated its obligations under the Act. The complaint must be accompanied by the employee's original request to the employer under s.9 and the employer's written response to the equitable compensation issue raised by the employee.

Complaints – Union represented employees

Union-represented employees may file complaints against the employer or their bargaining agent with the Public Service Labour Relations Board if they think either party has failed to comply with the equitable compensation provisions of the Act within 60 days after a new collective agreement has been agreed.

Remedies

Where the Board issues an award for equitable compensation it may include "costs" against the bargaining agent, the employer or both if either or both parties are found to have made an error that is "manifestly unreasonable" in the calculation of equitable compensation or the plan for achieving it over the life of the collective agreement. The Board may issue an order requiring the amount owing due to a "manifestly unreasonable" error to be paid to the complainant as a lump sum by the employer and/or the bargaining agent depending upon who is responsible for the "unreasonable error". The Board may also order the terms of a collective agreement related to equitable compensation to be amended to address any inequity during the remaining life of the agreement.

Prohibited conduct

Employers and bargaining agents are prohibited from acting in ways that "may encourage or assist an employee in filing or proceeding to file complaint under this Act [seciton 36].

Employers and people acting on their behalf are prohibited from discriminating against employees who file complaints or testify about matters covered in this Act [section 37].

Unions are prevented from expelling/suspending any member because she or he has exercised a right, complained or testified about issues covered by this Act or "refused to perform an act which is contrary to this legislation"[section 38] .

When a party complains to the Public Service Labour Relations Board (PSLRB) about the misconduct of a bargaining agent or a person acting on its behalf, and the complaint is in writing, [section 39(4)] provides that the onus of proving that such misconduct did not occur is placed on the bargaining agent.

Penalties

If parties contravene the Act, they may be liable to financial penalties in addition to any pay equity awards required to address compensation inequities, upon summary conviction.

Transitional Provisions

Complaints related to equitable compensation that have been filed with the Canadian Human Rights Commission and not concluded on the date the Act comes into effect will be examined by Public Sector Labour Relations Board.

Pay Equity (PE) Wage Adjustments

Represented employees whose bargaining agent agrees to an equitable compensation agreement may complain within a specified time limit after the collectively bargained equitable compensation plan is entered into namely – 60 days.

Limited Retroactivity

Retroactivity is limited in awards for union-represented employees to the period between the date on which the collective agreement containing the inequitable compensation came into effect and the date of the order. For un-represented employees, retroactivity is limited to the period between the date when the employee complained of inequitable compensation to the employer and the date of a Board order.

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[ 1 ] Pay discrimination on the grounds of gender is prohibited by Human Rights legislation in BC, Alberta, Ontario, Saskatchewan and equal pay for same or similar work is a requirement of employment standards legislation in Ontario, Manitoba, Saskatchewan and Yukon, Newfoundland and North West Territories. Pay equity – "equal work for work of equal value" is legally required in separate pay equity legislation for the public sector in Manitoba, Nova Scotia, New Brunswick and PEI and for the public and private sectors [over 10 employees] in Quebec and Ontario. New federal legislation requires that "equitable compensation" for male and female job classes must be bargained between the federal government and the federal civil service.







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