February 23, 2009
Dear Prime Minister Harper,
We write to express our
dismay at the introduction of the new Public Sector Equitable Compensation
Act. We are concerned that this
legislation has been introduced as a part of Budget 2009, and that, as a
consequence, Parliament will not be permitted to decide whether the legislation
has its support as a new law independent of the Budget. This amounts to
legislating by stealth in our view, and is unworthy of any Canadian government,
as well as unfair to women.
The legislation takes away
the right of women federal public servants to equal pay for work of equal
value. You have claimed that your government recognizes that pay equity is a
right of women and that this new legislation merely introduces efficiency and
speed to the process of obtaining pay equity in the public service. We have studied this legislation
closely and find these claims false. The Public Sector Equitable
Compensation Act empties the right to
pay equity of its meaning.
The new legislated criteria
for evaluating equitable compensation will reintroduce sex discrimination
into pay practices, rather than eliminate it. Under the Canadian Human
Rights Act, it is a discriminatory
practice for an employer to establish or maintain differences in wages between
male and female employees employed in the same establishment who are performing
work of equal value. In assessing the value of work performed by employees, the
criterion to be applied is the composite of the skill, effort and
responsibility required in the performance of the work and the conditions under
which the work is performed (section 11). The new legislation adopts these
criteria, but adds new ones that completely undermine the commitment to equal
pay for work of equal value for women. Section 4(2)(b) of Public Sector
Equitable Compensation Act adds that
the value of the work performed is also to be assessed according to the
employers recruitment and retention needs in respect of employees in that job
group or job class, taking into account the qualifications required to perform
the work and the market forces operating in respect of employees with those
qualifications. This permits any evaluation to take into account that
male-dominated jobs are valued more highly in the market, requiring the
employer to pay more to attract new employees or retain current ones, even if
the value of the work when it is assessed based on skill, effort and
responsibility is no greater than that of female-dominated jobs.
The right to equal pay for
work of equal value was introduced in federal human rights legislation in 1977
precisely in order to expunge the sex discrimination that is inherent in market
pay practices from the assessment of the value of work. Historically, the market
has devalued work that is done by women. Seeking now to evaluate the federal
public services compensation practices for female dominated job groups by
comparing them with pay assigned to these jobs in the market will entrench sex
discrimination, not correct it.
In addition, the new
legislation defines a female dominated group as one in which 70% of the workers
are women; only these groups can seek equitable compensation. This is too
rigid a definition as it simply puts outside the boundaries of the legislation
those job groups in which women are 51 – 69% of the workers, no matter
what the context is. The legislation restricts comparisons of male and female
job groups so that comparisons may only be made within defined portions of the
federal public service, or within federal agencies, not across the public
service as a whole. In addition, the legislation repeatedly refers to providing
equitable compensation within a reasonable time. This seems to imply that
women public servants may not receive compensation for the full period when
they received less than equal pay for work of equal value and may not receive
what they are owed immediately.
We conclude that the
substance of the right to equal pay for work of equal value is gone,
restrictions have been placed on who falls within the scope of the legislation
and on how comparisons can be made, and time periods for which compensation is
owed are malleable.
In addition, the processes
set out in the Act for seeking equitable compensation are fundamentally
flawed. The legislation makes employers and unions jointly responsible for
equitable compensation, even though federal public sector unions do not have
any control over the federal purse. It also makes equitable compensation for
women federal public servants a matter to be negotiated between employers and
unions alongside and at the same time as other collective bargaining issues,
not separately and distinctly, as it is under the Manitoba Pay Equity Act.
This puts women federal
public servants at risk of having their right to be free from sex
discrimination in pay bargained away because other issues are of more
importance to the employer or the union, or both. The Supreme Court of Canada
ruled in Dickason v. University of Alberta that employers cannot contract out of their human rights obligations.
There is nothing in this legislation that ensures that womens human rights
will be respected and fulfilled in the bargaining process, rather than ignored
and set aside. The effect of this restructuring of the process for obtaining
pay equity is to make pay equity no longer a human right of women, but a
benefit or privilege which may be bargained successfully, or not.
We note that individual
women, both non-unionized and unionized, are permitted to make complaints to
the Public Service Labour Relations Board if they believe that their
compensation is not equitable. However, neither non-unionized women nor
unionized women will have anyone to assist them. Currently, if women file a
complaint with the Canadian Human Rights Commission, the Commission will
investigate it, interview witnesses and examine evidence. Under the Public
Service Equitable Compensation Act,
complainants will receive no assistance whatsoever.
Further, unionized women
cannot have the assistance of their unions to make pay equity complaints.
Indeed, unions will be fined $50,000 if they assist any woman to make a
complaint. We point out that this legal imposition of a fine violates
international human rights norms, since it contravenes Article 9(3)(c) of the Declaration
on the Rights of Human Rights Defenders.
Article 9(3)(c) states that
everyone has the right, individually and in association with others,
[T]o offer and provide professionally qualified legal assistance or other relevant
advice and assistance in defending human rights and fundamental freedoms.
This individual complaint
procedure has been turned into a meaningless enforcement mechanism. Complaints
about pay equity are, by definition, group complaints. Individual female public
servants, without help from the Commission or their unions, will not have
access to the information about pay rates and job descriptions that is
necessary to make an equitable compensation complaint.
Nor will they have the
resources necessary to litigate. In light of the drastic diminishment of civil
legal aid in many jurisdictions, and the elimination of funding to the Court
Challenges Programme, women in Canada no longer have real access to the
exercise of their statutory or constitutional rights. The Public Sector
Equitable Compensation Act contributes
to this trend by stripping women of access to legal advice and legal
representation which they have had in the past when pay equity was at issue,
either from the Canadian Human Rights Commission or from their unions.
There have been many
problems with the current federal pay equity system. At the moment, there is no
proactive legislation that requires federal sector employers, including the
Government of Canada, to review their compensation schemes and ensure that
women are paid equal pay for work of equal value. The complaint system under
the Canadian Human Rights Act has
proven notoriously slow and unwieldy. For some years, there has been a broad
consensus among employers, unions, and womens organizations that this system
needs fixing. In 2004 a Pay Equity Task Force was appointed, which, after
thorough review and consultation, made recommendations for a new proactive pay
equity system, with a Pay Equity Commission and Tribunal. These recommendations
had widespread support, and if they had been implemented women workers in the
federal sector would have had access, for the first time, to an efficient and
effective mechanism for realizing their right to non-discrimination in pay.
The Public Sector
Equitable Compensation Act is a
surprising and dismaying alternative to what was recommended by the Pay Equity
Task Force. Nor does it comply with Canadas international and constitutional
commitments to the rights of women.
Under Article 11 of the Convention
on the Elimination of All Forms of Discrimination against Women, which Canada ratified in 1981, women are guaranteed
the right to equal remuneration, including benefits, and to equal treatment in
respect of work of equal value, as well as equality of treatment in the
evaluation of the quality of work. Article 2 of the Convention requires states parties to ensure that women have
access to effective remedies for violations of their rights. In addition, the International
Covenant on Economic, Social and Cultural Rights, in Article 7(a)(i) guarantees to women fair wages
and equal remuneration for work of equal value without distinction of any kind,
in particular women being guaranteed conditions of work not inferior to those
enjoyed by men, with equal pay for equal work. Canada ratified this Covenant
in 1976.
Nor is the new legislation
compatible with the commentary from United Nations bodies about Canadas
implementation of equal pay for work of equal value. Both treaty bodies and
members of a Working Group of the new Human Rights Council recognize that
Canada is failing on this issue. In 2003, the Committee on the Elimination of
Discrimination against Women recommended that Canada accelerate its implementation efforts as regards equal pay for work of
equal value at the federal level and ensure that that principle is implemented
under all governments. Recently, in 2009, during the Universal Periodic
Review of Canada by a Working Group of the Human Rights Council, several
countries recommended that Canada take the necessary measures to end
discrimination against women in workplaces and implement ILO and CESCR
recommendations to ensure equal remuneration for work of equal value in public
and private sectors.
In short, the Public
Sector Equitable Compensation Act is
not compatible with Canadas obligations under international human rights law,
as it undermines, rather than fulfilling, the commitment to eliminating sex
discrimination from pay practices, and does not provide women federal public servants
with effective access to a remedy if their rights are violated.
Further, in Newfoundland
and Labrador Association of Public Employees v. Government of Newfoundland and
Labrador (NAPE), the Supreme Court of
Canada ruled that s. 15 of the Charter guarantees to women the right to equal pay for work of equal value.
Canceling payments to women public servants, which were designed to correct pay
inequities, violated s. 15. In
that case, the Supreme Court of Canada, wrongly in our view, decided that the cancellation
of the payments was justifiable under s. 1 because the Government of
Newfoundland and Labrador was in a fiscal crisis.
In light of this reasoning
from the Supreme Court of Canada, the Public Sector Equitable Compensation
Act may not survive section 15
scrutiny. By adding market forces to the criteria for assessing whether there
is equal pay for work of equal value, the Act, in effect, takes away a right that women have
enjoyed, and that is recognized by the Supreme Court and under international
human rights law.
Further, we can envision no
section 1 argument that can justify this legislation. Although it has been
introduced as a part of Budget 2009, it has not been introduced as a
cost-saving measure, nor can it be defended as a means of saving money in a
time of fiscal crisis. Budget 2009 allocates billions of dollars for spending,
including $17 billion for infrastructure that seems destined to be spent on
construction jobs that are traditionally held by men.
We conclude that the Public
Sector Equitable Compensation Act
does not comply with the commitments that Canada has made to women in
international human rights instruments or the Charter. We ask you to withdraw this legislation immediately
and instead to implement the recommendations of the 2004 Pay Equity Task Force.
As Canadians who have
contributed many years of work to improving the lives of women, we are angered
when the Government of Canada moves backwards on the rights of women. This is
the fifth overt attack on the rights of women in Canada made by your
administration, following as it does on 1) the cancellation of funding to the
Court Challenges Programme, 2) changes to the criteria for funding for Status
of Women Canadas Womens Programme which preclude support for advocacy or
lobbying for law reform, 3) cancellation of the Status of Women Independent
Research Fund, and 4) cancellation of the child care agreements with the
provinces.
We wish to be proud of
Canada, but frankly, we are ashamed. We are aware of other countries in the
world, with far fewer resources than Canada, who are moving forward on womens
human rights, while we are slipping backwards. We urge you to reverse your
course.
Sincerely,
Shelagh Day, Recipient of
the Governor Generals Award in Commemoration of the Persons Case 2008
Frances Ennis, Recipient of
the Governor Generals Award in Commemoration of the Persons Case 2008
Wendy Robbins, Recipient of
the Governor Generals Award in Commemoration of the Persons Case 2007
Muriel Smith, Recipient of
the Governor Generals Award in Commemoration of the Persons Case 2007, Member
of the Order of Canada, Member of the Order of Manitoba
Joyce Hancock, Recipient of
the Governor Generals Award in Commemoration of the Persons Case 2006
Bonnie Diamond, Recipient of
the Governor Generals Award in Commemoration of the Persons Case 2005
Dr. Rosemary Speirs,
Recipient of the Governor Generals Award in Commemoration of the Persons Case
2004
Linda Silver Dranoff,
Recipient of the Governor Generals Award in Commemoration of the Persons Case
2001
Mary Eberts, Recipient of the
Governor Generals Award in Commemoration of the Persons Case 1996
Dorothy Inglis, Recipient of
the Governor Generals Award in Commemoration of the Persons Case 1989
Constance Backhouse,
Distinguished University Professor and University Research Chair at the Faculty
of Law, University of Ottawa, Member of the Order of Canada
Dr. Melina Buckley, Lawyer
and Legal Policy Consultant
Francine Pelletier,
Journalist and Filmmaker
Kimberley Brooks, Heward Stikeman Chair in Tax Law, McGill University
Margaret
Denike, Associate Professor of
Human Rights, Coordinator of the Human Rights Program, Carleton University
Rebecca Johnson, Professor of
Law, University of Victoria
Dr. Jula Hughes, Faculty of
Law, University of New Brunswick
Elaine Craig, JSD(c), Trudeau
Scholar, Dalhousie Law School
Professor Elizabeth Sheehy,
Faculty of Law, University of Ottawa
Meg Luxton, Acting Director,
Centre for Feminist Research, School of Women's Studies, York University
Fiona Kelly, Assistant
Professor of Law, University of British Columbia
Heather McLeod-Kilmurray,
Professor, Environmental Law Group, University of Ottawa
Annie Rochette, Professeure,
Dpartement des Sciences Juridiques, University of Quebec at Montreal
Margot Young, Associate
Professor, Faculty of Law, University of British Columbia
Sheila McIntyre, Professor,
Faculty of Law, Common Law Section, University of Ottawa
Claire Young, Senior
Associate Dean, Academic Affairs, and Professor, Faculty of Law, University of
British Columbia
Rosemary Cairns Way,
Professor/Professeure, University of Ottawa/Universit d'Ottawa, Faculty of
Common Law/Facult de common law
Isabel Grant, Professor,
Faculty of Law, University of British Columbia
Freya Kodar, Assistant
Professor, Faculty of Law, University of Victoria
Marjorie Simington,
Assistant Professor, College of Law, University of Saskatchewan
Jillian Boyd, PhD Candidate,
Law, University of Toronto, Trudeau Foundation Scholar
Karen Busby, Professor of
Law, University of Manitoba
Lucinda Vandervort,
Professor, College of Law, University of Saskatchewan
Sanda Rodgers, Professor of
Law, University of Ottawa
Dr. Jennifer L. Schulz,
Faculty of Law, University of Manitoba
Marcia Oliver, PhD.
Candidate, Sociology, York University
Kate Bezanson, Associate
Professor, Department of Sociology, Brock University
Miriam Smith, Professor, Law
& Society, York University.
Mary Jane Mossman, Professor
of Law, Osgoode Hall
Dianne Pothier,
Professor, Dalhousie Law School
Tim Quigley, Professor of Law,
University of Saskatchewan.
Dr. Wendy McKeen, School of
Social Work, York University
Rachel Cox, Professor,
Faculty of Law and Political Science, University of Quebec at Montreal
Margrit Eichler, FRSC,
Professor, Sociology and Equity Studies in Education, Ontario Institute for
Studies in Education, University of Toronto
Norma Sim, Lawyer, Q.C.,
Saskatchewan
Susan Braedley, Ph.D,
Postdoctoral Research Fellow,
CHSRF/CIHR Chair in Health Services and Nursing Research, York University
Judy Fudge, Professor of Law,
University of Victoria
Professor Norman Zlotkin,
Professor, College of Law, University of Saskatchewan
Dr. Lorna A. Turnbull,
Associate Dean and Associate Professor, Faculty of Law, University of Manitoba
Colleen Covert, Lawyer,
Saskatchewan
Amanda Dodge, Lawyer,
Saskatchewan
Debra Parkes, Professor,
Faculty of Law, University of Manitoba, Manitoba
Hester Lessard, Professor of
Law, Faculty of Law, University of Victoria
Evelyn Anderson, Lawyer,
Saskatchewan
Mary Childs, Visiting
Professor, Faculty of Law, University of British Columbia
Louise Langevin, Professeure
/Professor, Chaire d'tude Claire-Bonenfant sur la condition des
femmes/Claire-Bonenfant Research Chair in Women Studies, Facult de
droit/Faculty of Law Universit Laval/Laval University
Doris Buss, Associate
Professor, Law Department, Carleton University
Susan Boyd, Professor,
Faculty of Law, University of British Columbia
Dr. Louise H. Forsyth,
Professor Emerita, Women's and Gender Studies, University of Saskatchewan
Leah F. Vosko, Canada
Research Chair in Feminist Political Economy, Professor of Political Science,
York University
Margaret Conrad, Canada
Research Chair in Atlantic Canada Studies, Department of History, University of
New Brunswick
Dr. Barbara Cameron,
Associate Professor, Political Science, York University
Gillian Calder, Assistant
Professor, Faculty of Law, University of Victoria
Jacinthe Michaud, Ph.D,
School of Women's Studies, York University
Diana Majury, Associate
Professor, Department of Law, Carleton University
Melissa Haussman, Associate
Professor, Political Science, Carleton University
Martha O'Brien, Associate
Professor, Faculty of Law, University of Victoria
Elisabeth Rondinelli, PhD
Candidate, Department of Sociology, York University
Vanessa Gruben, Assistant
Professor, Faculty of Law, University of Ottawa
Daphne Gilbert, Associate
Professor and Vice Dean, Faculty of Law, University of Ottawa
Professor Joanne St. Lewis,
Director/Directrice, Human Rights Research & Education Centre/ Centre de
recherche et d'enseignement sur les droits de la personne
Universit d'Ottawa / University of Ottawa
Marie-Eve Sylvestre,
Professor, Faculty of Law, University of Ottawa
Jacqueline Mary Huston,
Professor, Faculty of Law, University of Ottawa
Dominique Bourque, Professeur agrg, Institut d'tudes
des femmes et Dpartement de franais, Universit d'Ottawa