Posted: Monday, 8 December 2008

The Conservative government of Stephen Harper, in its highly controversial Economic and Fiscal Statement of November 2008, indicated it intended to "modernize" the pay equity law. This initiative raised more questions than it answered: To what extent would this new legislation, in effect, shift responsibility and accountability from employers to unions to make the case for adequate compensation? What are the implications of abandoning an appeals process? Is this the kind of "pro-active" legislation women workers need, or is this ultimately a coercive measure? What does this mean in the context of a federal government which intends to strip away the right to strike of federal employees. Will unions be put in the position of bargaining away a fundamental right?

Here is our analysis of the Conservative government's plan as outlined in the 2008 Economic and Fiscal Statement. The full text of the government's proposals on pay equity are stated below in italics. (Department of Finance, Government of Canada"Protecting Canada's Future: Economic and Fiscal Statement, November 27, 2008, p.55). Our analysis follows.

The government says: The current approach to pay equity is a litigious, adversarial, complaints-based approach.

We agree. This issue was addressed by the Pay Equity Taskforce which, in 2004, recommended that the government introduce new pay equity legislation. The new law would require federal employers to examine their compensation plans to ensure equal pay for work of equal value and engage in a comprehensive plan in consultation with workers and their unions.

The government says: Under the current approach, the Government in its capacity as the employer first agrees on wage rates with the bargaining agents and then years later is forced to top up those very settlements through pay equity complaints.

The Harper government does not intend to "agree" with unions, but to "impose" wage settlements. In the Economic and Fiscal Update 2000 it said that it would legislate wages of 2.3% for the first year and 1.5% for three years thereafter.

The government says: Since the mid-1980s the federal government has paid over $4 billion in pay equity settlements.

This is because for years, the government refused to implement a joint union-management pay equity study that recognized the wage gap. The $4 billion was retroactive pay owing thousands of workers for the past 20 years.

The government says: New complaints continue to be filed with the Canadian Human Rights Commission, sometimes for the same groups that have already received past pay equity settlements, representing large potential future costs to taxpayers.

In some cases, the wage gap was not eliminated and in others it was reintroduced through the restructuring of work. Ensuring pay equity is an ongoing process; not a one-stop solution. It must be maintained over time.

Therefore, the Government will introduce legislation to modernize the pay equity regime for federal public sector employees, similar to the process now in place in Ontario and some other provinces.

The Harper government's proposals are not at all similar to the legislation in Ontario. Ontario has a proactive law that mandates the employer and bargaining agent to sit at a separate pay equity table to study compensation systems. The goal is to make sure compensation is not discriminatory and if so, to fix it. If it doesn't work, there is a complaints procedure through the Pay Equity Commission.

The government's proposals also introduce confusion about how the new regime would affect workers who are not federal public sector employees, but still covered by the federal labour code.

The government says: The new regime reflects the Government's commitment to pay equity.

This statement is contrary to what the government proposed. Furthermore, Stephen Harper is on record as stating that pay equity is a "rip-off". He further stated: "And it has nothing to do with gender. Both men and women taxpayers will pay additional money to both men and women in the civil service. That's why the federal government should scrap its ridiculous pay equity law." (National Citizen's Coalition Overview, 1998) Stephen Harper thought he had finally found the way to scrap the law.

The government says: The new regime ensures that the employer and bargaining agents are jointly responsible and accountable for negotiating salaries that are fair and equitable to all employees and that are in line with wages in the internal and external workforces.

When the Pay Equity Task Force was conducting its work, this was the position advanced by employers, but unions were adamant in pointing out that there is, in fact, no joint control over the workplace.

Pay equity is about both the value of work and the wages paid for the work. Unions don't establish job classifications and this is what determines the value of the work. The union does not hire women to work as clerical staff and men to work as custodians. Hiring is a management right. The union can negotiate wage increases but under no circumstances do unions and management have the same rights and responsibilities.

The government says: As a result of the new legislation, pay equity considerations will now be addressed in a more proactive, open and transparent manner.

The government is using our language and desire for change to the status quo, without responding to the substance of the 2004 recommendations of the Pay Equity Task Force.

The government says: Making pay equity an integral part of collective bargaining will increase fairness, eliminate lengthy litigation processes and ensure progress made by women in the public service is maintained over time.

Equal Pay for Equal Work is an internationally recognized human right. To have these rights enforced, we need to have access to an appeals process and recourse to establish or re-establish equality. Furthermore, such rights cannot be traded away. The reason for pay equity legislation is so that unions are not put in the position of having to bargain for a fundamental human right.

The government says:The new pay equity regime will make employee compensation more predictable, improve government fiscal planning and eliminate unpredictable retroactive payments.

By absolving the employer from its responsibilities, the government suggested a highly coercive, ideological and ultimately unworkable response to the problem of ongoing and systemic pay inequality.