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Disclaimer: This Guide gives an overview of the minimum requirements of the Pay Equity Act as interpreted by the Pay Equity Office. The interpretations are drawn from our own experiences and by applying the key rulings of the Pay Equity Hearings Tribunal and the courts and is current to the date of publication.
Once pay equity has been achieved, all employers are required to maintain pay equity.
- Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer [7. (1)].
What does it mean to "maintain pay equity"?
Employers have an obligation under the Act to ensure that the job rates of female job classes remain at least the same as the job rate of a male job class of equal or comparable value in their establishments. Employers whose actions or lack of action have the effect of widening or creating new pay equity gaps would be considered in breach of their obligation to maintain pay equity.
The Act does not explain what type of compensation practices should be used to maintain pay equity, nor does it describe specific procedures or schedules to follow.
The Tribunal's ruling in Call-A-Service Inc. v. An Anonymous Employee, 2008 CanLII 88827 (ON PEHT) lays out the essential requirements for maintenance:
- "Maintenance is the means by which an employer ensures that compensation practices are kept up-to-date and remain consistent with pay equity principles. Subsection [7. (1)] of the Act imposes an obligation on an employer to establish and "maintain" compensation practices that provide for pay equity. Maintenance is an ongoing responsibility; it includes regularly reviewing job classes to capture any changes to job duties and responsibilities, which may require pay equity adjustments."
Some examples of changes resulting from ongoing maintenance that may affect pay equity are: changes to the duties and responsibilities of a job that may place it in a different job class and salary scale; the creation or elimination of a male job class used as a comparator, and changes in the gender dominance.
How is pay equity maintained when there are changes to job classes?
Jobs often undergo changes to meet the changing needs of the workplace. If the changes to the job content of a female job class are such that they affect the overall value of the job class in terms of skill, effort responsibility and working conditions, it may be necessary to re-evaluate and /or re-classify the female job class and compare it with another male job class. Depending on the extent and nature of the changes, some, but not necessarily all, changes to jobs have implications for pay equity. Pay equity is maintained, for example, when one or more job classes are added or eliminated and the changes have been evaluated in a way that is free of gender bias.
If more men are hired in a female job class, does it become a male job class?
Changes in the percentage of females and males in a job class alone will not necessarily change the gender predominance of the job class for pay equity purposes. For example, an organization may see an increase in the number of females working in a male job class, and the job class appears to be gender-neutral. However, it may still be a male job class for pay equity purposes due to the historical incumbency of the job class and/or the gender stereotype of the work performed. The Act requires that all three criteria – current incumbency, historical incumbency, and gender stereotype of the field of work – be considered to determine the gender of a job class.
If a male job class is not currently filled can it still be used as a comparator?
In Niagara (Regional Municipality) v. CUPE, Local 1287, 1999 CanLII 14829 (ON PEHT), the Pay Equity Hearings Tribunal found that: "…in the absence of any wage impact or substantive change in job content, the fact that the male comparator job class was vacant and remained vacant did not render the pay equity plan inappropriate for the female job classes."
How do employers handle changes in wages after pay equity is achieved?
Employers should be aware of any effects of wage increases on the pattern of pay between female and male job classes. Generally, if the job-to-job method was used to achieve pay equity, female job classes should be given wage increases that the male comparator receives. Under proportional value, wage increases should be given in a way that maintains the same job value to job rate relationship for female and representative male job classes. If percentage-based wage increases are given, this practice can effectively open gaps that must subsequently be closed again.
How do employers deal with new female job classes?
When a new female job class is created, it should be described, valued and compared using the gender neutral job comparison system or tool that was previously used to implement pay equity so that the new class is paid as much as their male comparator from the start.
Are employers and unions required to negotiate a maintenance agreement?
While it is likely that the bargaining agent will be involved in developing strategies to maintain pay equity, the Act does not require parties in a unionized setting to negotiate a maintenance agreement.
Is it necessary for Part II employers to amend and re-post a pay equity plan for maintenance?
Where an employer has posted and implemented a pay equity plan in accordance with Part II or Part III.2 of the Act, there is no requirement to negotiate an amended plan or to re-post plans to maintain pay equity. In Call-A-Service Inc. /Harmony Hall Centre for Seniors (No.3) (28 April 2008), the Tribunal stated:
- "Changes arising from maintenance do not give rise to a formal review period as required under subsections [15. (4)–(8)] of the Act. Most significantly though, such changes do not open a deemed approved plan. (Centennial College (2002-02) P.E.R. 102, par. 20). To paraphrase the ruling of the panel in that case, the importance of a deemed approved plan makes it counter-intuitive to the scheme of the Act to contemplate treating subsequent events, as rendering a deemed approved plan open."
Can previous wage increases "count" towards achieving pay equity?
Only pay equity adjustments that were clearly identified as pay equity adjustments and distributed according to the rules of the Act to underpaid female job classes are considered for achieving the pay equity job rate. If an employer gives other wage increases (for example, cost-of-living increases), the pay equity job rate of female job classes of the seeking employer that have not yet achieved pay equity must be increased by the same dollar amount [21.11 (3), 21.22 (3)].
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