We have today two sets of witnesses with us. From the Federally Regulated Employers - Transportation and Communications, FETCO, we have Mr. John Farrell, executive director; and David Olsen, assistant general counsel, legal affairs for Canada Post Corporation.
We also have Syndicat des employés de la Banque laurentienne and Confédération des syndicats nationaux, CSN, and they are on video. Danielle Casara is from Syndicat des employés de la Banque laurentienne and Claudette Charbonneau is from Confédération des syndicats nationaux.
With that, I will begin. I just want to let witnesses know that you each have 10 minutes per group to present and then we will open up for questions from the committee. We will time everyone when we begin.
We will start with Mr. Farrell. Are you and Mr. Olsen going to share your 10 minutes?
:
It's a pleasure for both of us to be here.
FETCO represents the majority of employers in the private sector under federal jurisdiction, covering railroads, trucking companies, broadcasters, telephone companies, the operation of the ports, the airlines, among others. There are approximately 586,000 employees employed by FETCO member companies, and in our brief, at appendix A, you will find the names of the companies that are members of FETCO.
We recommend that you read our brief as well as the paper written by Professor Paul Weiler that was prepared in June 2002 in support of FETCO's submission to the Bilson task force. This is an integral part of our submission.
First and foremost, federally regulated employers, the members of FETCO, fully support equal pay for work of equal value.
Professor Weiler's paper examines the interplay between equal pay for work of equal value provisions under the Canadian Human Rights Act and the provisions of the Canada Labour Code. It predicted, in 2002, the practical problems employers would face in achieving equal pay for work of equal value in a unionized environment where employers are compelled, by the provisions of the Canada Labour Code, to negotiate compensation provisions bilaterally with the unions representing employees. At the same time, the employers are unilaterally responsible for achieving equal pay for work of equal value for men and women under the provisions of the Canadian Human Rights Act.
The Public Sector Equitable Compensation Act is supported by FETCO because it is a proactive rather than a complaints-based solution that makes both the Treasury Board, as the employer, and the unions representing federal public sector employees equally responsible for achieving equitable compensation by developing and implementing a plan to develop, achieve, and maintain this important human rights and employment objective. It will eliminate the union strategy of double-dipping by negotiating compensation provisions bilaterally and then seeking additional compensation through a complaint to the Canadian Human Rights Commission. This is really the primary reason the FETCO members are in support of this legislation.
Achieving equitable compensation is a human rights matter and an employment matter that requires a human rights and employment-based solution. The Public Service Labour Relations Board, we believe, is well equipped to resolve equitable compensation matters in the workplace. They routinely deal with the parties on an ongoing basis on matters of a similar nature, and the Supreme Court has made it clear that the courts and arbitrators have jurisdiction to address human rights issues. This case is no different.
Those are our introductory remarks. I'll now turn to David Olsen, who has been involved for quite some time in dealing with numerous disputes and proceedings with respect to issues involving both collective bargaining under the Canada Labour Code and the application of the Canadian Human Rights Act in the public sector.
David.
:
Thank you very much, John.
I will repeat, just so there's no misunderstanding, that our organization unequivocally supports the principle of equal pay for work of equal value. Our members have extensive experience with the current regime under section 11 of the Canadian Human Rights Act. We've been deeply involved in these cases for decades. I've personally been involved for over 25 years in a case involving my client, Canada Post Corporation.
There are certain flaws in the current legislation—that is, section 11 of the Canadian Human Rights Act—that have been largely addressed in the Public Sector Equitable Compensation Act. This act, of course, does not apply to the federally regulated sector, so our members are not affected by this legislation. We remain under section 11 of the Canadian Human Rights Act. However, we believe this act contains important principles and sound provisions that will improve the ability of employers and unions in the federal public sector to implement equitable compensation for women that is pragmatic and fair.
This legislation makes sense to FETCO because it integrates equitable compensation, or pay equity, into the collective bargaining process. Secondly, it requires that both employers and unions share responsibility for achieving equitable compensation. Thirdly, the proactive regime provides a more efficient, effective, and equitable problem-solving and dispute resolution process over that in the current Canadian Human Rights Act, which is complaint based and leads to interminable litigation.
The heart of the issue for FETCO has always been the fact that equal pay for work of equal value must be integrated with the collective bargaining process. Like equal pay, the charter freedom of association for employees and the right to a form of collective bargaining is accorded the status of a fundamental human right. Just because both are considered to be sacrosanct does not, in our view, mean they cannot be addressed together. If anything, they must be addressed together in order for both to be balanced and achieved.
I've heard it said that pay equity is not negotiable. We agree, but what we have to recognize is that the best way, many academics say, of achieving pay equity is through the collective bargaining process. That's the forum where wages and benefits are set between a union and management, and in our view, that's the forum in which pay equity must be addressed.
That is the whole thesis of Professor Paul Weiler, who appeared as a witness before the Bilson task force, and we commend his paper to you. Professor Weiler, as you may know, was a famous Canadian academic. He was chair of the British Columbia Labour Relations Board and an expert on comparable worth in the United States while he was at Harvard University, and we do commend his thesis to you.
Section 11 of the Canadian Human Rights Act is poorly drafted. It articulates the general principle that it's discriminatory to pay different wages to men and women performing work of equal value. It has routinely and strategically been leveraged by trade unions as a means by which to effectively reopen collective agreements that they themselves have entered into with employers, in order to then seek additional payment on behalf of female-dominated groups in their union, a second kick at the can, if you like, that flies in the face of the fundamental sanctity of collective bargaining.
Unlike in the non-unionized environment, where it is the employer that makes the unilateral decision about terms and conditions of employment and compensation, in the unionized environment it's the bilateral decision between the union and the employer that sets the terms and conditions of employment. As the Supreme Court of Canada has said, there is no room left for individual bargaining between the employer and the individual employee. It must be done through the trade union as the bargaining agent. It's the two together who decide what compensation is to be paid. If you read Weiler--and I believe this to be true--in most circumstances it is the union that plays the major role in terms of the allocation of wages and benefits that the employer agrees to. It's mostly the union that decides how that money is going to be allocated under the collective agreement.
This is the reality that, in our view, the Canadian Human Rights Act does not recognize. Both pay equity and collective bargaining cover the same activity: the level, structure, nature, and amount of compensation. In the unionized environment, these activities have to be integrated. In Weiler's view, the alternative is to destabilize collective bargaining and to allow pay equity to be used to leverage the gains reached at the bargaining table. As I say, it is elaborated more extensively in our brief and in Weiler's paper.
In Weiler's paper, he states in his conclusions that “my first conclusion is that where disputes arise in employment relationships governed by both the [Canadian Human Rights Act] and the [Canada Labour Code], the bodies responsible for applying the law must read the two statutes together in a fashion that best accommodates these two important federal legal policies”. We say this conclusion applies with equal force to the Public Sector Equitable Compensation Act.
Thank you.
:
I'd like to begin by thanking the committee for giving us the opportunity to express our opinion and clarify our position, and to give the reasons behind them. Our arguments will not be based on research or legal opinions, but rather on our experience as members of a union and as female workers in the banking sector, which is under federal jurisdiction.
First of all, I'd like to sketch a quick portrait of Local 434 of the Syndicat des employées et employés professionnels-les et de bureau, which has represented the employees of the Banque Laurentienne du Canada since 1967, or for 42 years. We currently represent 2,300 employees who work in a branch, a telephone-banking call centre, the administrative centre or head office. Positions range from branch teller to mortgage arranger, financial adviser and financial planner. Eighty-five percent of our members are women. La Banque Laurentienne is the only unionized bank in Canada. As I said, we are a local of SEBP-Québec, the Syndicat des employées et employés professionnels-les et de bureau du Québec. We are affiliated with the Fédération des travailleurs et travailleuses du Québec (the FTQ), and the CLC.
Just to refresh your memory and provide you with some context, the Canadian banking sector is the largest employer of labour under federal jurisdiction working in the private sector, employing 30% of such labour. Of these employees, 72% are women, compared to 31% in the other sectors of activity under federal jurisdiction. In addition, 48% of female workers under federal jurisdiction are bank personnel, and only 1% of them are unionized. I imagine that this means mainly us.
The wage gap in the banking sector is 36%, one third of which may be attributed to the lack of corrective measures to deal with the systemic pay inequity suffered by women for years.
In our opinion, the impacts of adopting the Public Sector Equitable Compensation Act by the Harper government show the lack of consideration the latter has for the rights of women in general and female workers in particular since pay equity, in our opinion, cannot be equated with a pay increase that can be negotiated within a collective agreement, but is rather a fundamental human right. However, the complaint regime was not really ideal either, since it gave rise to some legal sagas—we need only recall those of Canada Post and Bell Canada—which were hugely expensive for both sides.
To us, the Public Sector Equitable Compensation Act seems retrograde, at a time when the Government of Quebec has just—yesterday—not only kept its Pay Equity Act, but also reinforced it, thus demonstrating that the changes that this law has brought to Quebec are beneficial for society in general and are within the reach of businesses of all sizes, in all sectors, in both the public and private sectors.
The Public Sector Equitable Compensation Act also seems to us to be an expression of contempt for the fundamental rights of women. Furthermore, this led to the filing by women's groups and numerous unions of a complaint with the UN Commission on the Status of Women in March 2009. In 2003, the UN also asked Canada to remedy the pay inequity suffered by female workers under federal jurisdiction. The message sent to employers in the private sector is clear and reinforces their inaction in this area.
As early as April 2002, our Local 434 joined the action, sharing its comments with the Pay Equity Task Force set up in 2001. We related how the Banque Laurentienne had managed to exempt from the Quebec Pay Equity Act the employees of its subsidiary Trust La Laurentienne, who came under provincial jurisdiction. By means of a simple transfer of employees, they succeeded in being exempted from the law that had just been passed.
The report presented in November 2002 by the Canadian Bankers Association to the task force shared the same opinion: pay equity is a recognized value, but it is already achieved in the sector, and no action, legislation or obligation needs to be added.
This episode, from which the bank emerged the winner, caused a lot of bitterness and reinforced our conviction to the effect that only a proactive pay equity act at the federal level would force employers to comply with the principle so that finally our female workers would stop being second-class workers in their own province.
In 2004, after a lot of awareness campaigns, countless resolutions at numerous conventions of the FTQ and the CLC, the task force report finally revealed to us the light at the end of the tunnel: a law that was to be proactive, mandatory, general in scope and offering extensive protection, involving the participation of female workers and unions, providing for maintenance rules, and so on.
In our opinion, the report recommendations, despite the support of the Bloc-québécois, the NDP, the Liberal Women's Caucus and the House of Commons Standing Committee on the Status of Women at the time, took too long to be applied and the arrival of the Harper government spoiled the momentum. Now, it is hammering the last nails into the coffin and disregarding the incredible energies put in on this file over the years, both in human resources and public funds.
In Quebec, if we want to compare businesses in the financial sector, we have the example of Desjardins, the largest private employer in Quebec, which, in spite of Quebec law, refuses to comply with the Pay Equity Act and is prepared to use all the means and all the resources at its disposal to get out of it, as the Banque Laurentienne did in 2002.
Desjardins minimizes the existence of possible gaps by using special evaluation curves, and 388 complaints and disputes were filed by the SEPB with the Commission de l'équité salariale on May 12.
In conclusion, SEPB-434 and its members therefore firmly denounce the adoption of Bill C-10, a real historical setback for the rights of women and workers, and they demand that it be repealed.
We support the struggle that our public sector sisters and their union have undertaken, realizing that the outcome of this struggle will have an impact on all workers in sectors under federal jurisdiction, including our own. This is also why we will continue, with our partners and through our own bodies and our affiliations, to call on all political parties and demand that the government apply the recommendations contained in the report by the federal government's Pay Equity Task Force.
:
Madam Chair, I am very happy that you have invited us today to hear our point of view on a social debate that is of extreme importance, namely that of achieving pay equity.
The CSN represents some 300,000 workers across Canada, who are in very large part concentrated in Quebec. However, some 15,000 of our members are under federal jurisdiction, particularly in the communications, interprovincial transportation, grain elevator and prison sectors.
Bill C-10, in our point of view, is a major affront to the fundamental right of women to recognition of the value of their work, and women have more than one reason to feel offended.
First of all, the government is redefining the very notion of job category so that it can limit the concept of predominantly female job category to jobs that have over 70% women in them. It thus subordinates the right of women to equal pay for work of equal value to the simple wish of their employers.
The bill actually adds to the job evaluation criteria recognized throughout the literature and in all proactive legislation respecting pay equity criteria that reflect the needs of employers pertaining to recruitment and retention of labour. This of course has nothing to do with the imperatives of pay equity—quite the contrary. Pay discrimination is thus allowed if it is justified by market conditions. This is totally unacceptable.
Not satisfied, the government is returning this right to the area of the negotiable, instead of forcing the establishment of actual pay equity programs and ensuring they are maintained. This is therefore no longer a right to have respected, but a working condition to be negotiated. Finally, the responsibility for results will be up to not only employers but also union organizations. Indeed, the bill confers on the Public Service Commission, an agency that has no specific expertise on these issues, the power to determine a compensatory amount to anyone who has been adversely affected. It could force a union to pay part of this amount. So organizations would become responsible for the payment of wages. Clearly this is nonsensical, and we must denounce it and continue to challenge it.
Equally obnoxious is the government's prohibiting union organizations from encouraging women to file complaints and from representing them to obtain justice. But how can the government, in the preamble of the act, state that Parliament feels that women in the federal public sector should receive equal pay for performing work of equal value, and also state that it recognizes that it is desirable to achieve this objective proactively, while proposing such a legislative framework?
Consequently, we are going to ask the government to withdraw these particular provisions on pay equity for the federal public service and to subscribe to the development of a real proactive law on pay equity that will benefit all employees governed by the Canada Labour Code.
Thank you.
:
As a point of clarification, I'm here as a representative of FETCO and not as counsel to Canada Post Corporation. However, I will draw on the Canada Post example.
In all Canada Post's bargaining units—I should say with the exception of the Canadian Union of Postal Workers, but with the Public Service Alliance, which represents our white-collar workers; the Association of Postal Officials of Canada, which represents our supervisors; and the Canadian Postmasters and Assistants Association, which represents our rural postmasters—what we have done is agree in advance of bargaining on a job evaluation plan, looking at the same criteria that are set out under section 11 of the Canadian Human Rights Act and that are also set out in the equitable compensation act, using skill, effort, responsibility, and working conditions. We've agreed on a gender-neutral plan, pre-bargaining, and we've worked out the relative values of the jobs in the bargaining unit.
That is then brought to the bargaining table, where the parties hopefully agree on wages and benefits for those employed. I believe it's worked fairly well.
So basically, the achievement of equal pay for work of equal value is done through the collective bargaining process. That's how it works. That's how it worked in our environment anyway.
:
The Quebec act, originally, was one of the most encompassing laws in Canada. It covered the public and private sectors. But it contained a number of ambiguities. In fact, a few years after it was passed, about 50% of businesses still had not implemented the equity process. These businesses were given a second chance. Now, however, should they not fulfil their obligations, the bill provides for penalties. So it's an improvement.
In my opinion, one of the good things about the bill was that it clarified the concept of maintaining pay equity. It's one thing to establish a right, but we have to make sure, given that it's a fundamental right, that it's maintained over the years. Accordingly, a certain number of guidelines made available to the parties was completely appropriate. This is really a very short summary of the advances made, but concerning the question you asked the previous speaker, I can tell you that the Quebec bill never brought equity back to the level of something negotiable.
Where there is a union, we want the development of pay equity to be a participatory process. There's no doubt about that. It's not an exact science. We want the development of evaluation programs to be devoid of sexist biases, but the parties' assessments have to be taken into account. However, there's a fundamental difference: if the parties are not in agreement that women's rights are fully respected, it's always possible to refer the matter to a third party. We don't let the power relationship or strictly financial considerations determine the issue.
:
Thank you, Madam Chair.
Ladies, gentlemen, thank you for being here today.
Mr. Olsen, listening to you and then listening to Ms. Casara and Ms. Carbonneau, I could not help noting how divergent your respective points of view are. Still, Ms. Casara works in the banking community. It's also an area that you cover, if I'm not mistaken, since some 30% of the employees to whom you are connected come from banks. But Ms. Casara perceives the provisions on pay equity, as they are specified in Bill C-10, in a totally different way from you.
I'd like to point out to you that, at Canada Post, women workers have been struggling for 26 years to get pay equity, actually because, since this question is not negotiated, the issues is never settled. Ms. Casara says that the unions should not be responsible for the success or failure of negotiations dealing with this issue, because it's a right. It is indeed a right. Ms. Casara and Ms. Carbonneau are unionists.
How do you explain that your statements diverge so far from theirs? In my opinion, it's not because you're a man, but rather that you're an employer.
:
The process under section 11 of the Canadian Human Rights Act is not a proactive regime, it is a complaint-based regime. I understand generally it is trade unions that have used that complaint process. Certainly in the big FETCO employers, it has been the trade unions that have filed complaints, claiming that their members or some of the female-dominated group, when compared with a male-dominated group either in their own union or in another bargaining unit in the same organization, are doing work of equal value and there's a pay discrepancy.
Usually the Human Rights Commission will come in and do an investigation of the situation. They try to encourage the parties to agree on a job evaluation plan, and one that the commission could use as well. We fell apart in the early years on that. We couldn't agree on an appropriate job evaluation plan to measure the work, because for example, under that act, you're supposed to look at skill, effort, responsibility, and working conditions. Clearly, a lot of the plans that came off the shelves in the early years, such as the Hay plan, had no criteria for working conditions. Then, under the Canadian Human Rights Act, the guidelines were drafted in such a way as to minimize working conditions, which would lead to a downward evaluation of men's jobs—first of all, men working in plants, and so on.
So we could never agree. It's a very subjective thing to try to evaluate someone working in a plant, on shift work, 24 hours a day, and compare that to someone working in an office, if you can appreciate that. The criteria usually have to be negotiated. It sounds scientific, but it's not scientific, if you can just imagine trying to evaluate those two things. The person who's representing the white collar clerical worker wants the value of working conditions to be discounted because that would give too much value to the man or woman working on the shop floor 24 hours a day. It's not a pretty process, but in any event, you try to get consensus among the parties on the criteria, and then you have to do a survey. How big a survey do you do of all the employees, and do you have the right groups to be compared? That is another huge problem. Do you do a census of everybody in the organization? Can the union cherry-pick?
:
Thank you, Madam Chair.
Thank you to all who have come here. I appreciate your presenting your information to this committee.
I have many, many questions, so I will try to be brief and I would appreciate it if your responses were brief.
I'm going to begin by addressing my first question to Mr. Olsen and Mr. Farrell, but certainly Madame Carbonneau and Madame Casara, if you want to add to the responses, I'd be very pleased about that.
One of the things that are concerning me at this point is the understanding about how collective bargaining works. We keep hearing that pay equity should be part of collective bargaining, yet trade unions have been very clear that pay equity is a human right, as defined by the United Nations. It's a human right according to CIDA. A human right cannot be bargained away.
If we make pay equity part of collective bargaining, would it not do precisely that? In collective bargaining, you're looking at pay, benefits, pensions, all kind of things. How can you possibly lump a human right in with those things?
:
Perhaps I could respond.
The rights to collective bargaining and freedom of association are also human rights, as is the right to equal pay for work of equal value. We value, as employers, both of those rights, and we're compelled to deal with both of those rights simultaneously.
I should read to you something that was been prepared in 1998 by the CLC's Women's Symposium. It's from Restructuring Work and Labour in the New Economy, Equity Bargaining/Bargaining Equity. It says, and I quote:
The labour movement in Canada has come to realize that we cannot rely on legislation to achieve and protect equity equality issues. Collective bargaining is a much more effective mechanism for ensuring that these rights exist. Bargaining equity measures also means the resolution for complaints can be addressed to the grievance procedure, a quicker and less costly process. It is essential that equality issues become central to the collective bargaining objectives.
This is a position that has been adopted by the Canada Labour Congress, the Women's Symposium, November 1 to 3, 1998.
:
I'd like to try and clarify the debate by talking about the Quebec experience.
On the one hand, union organizations never maintained that the complaint process was adequate. We have struggled not to head towards negotiation, but to demand a proactive law. In Quebec, we've had both regimes. I come back to the public sector. As long as there was not a proactive law, we did what we could with negotiations. The proactive law accounted for a difference of $2 billion for women. It shows that negotiations can sometimes correct certain aspects, but it's not true that the right to pay equity is fully achieved.
On the other hand, regarding the responsibility of unions, a proactive law forces both parties to assume their responsibilities. People can submit complaints to their unions, which may refuse to act, or act in bad faith, or don't fulfil their responsibilities. But what we have now in the federal law is something else. It makes the union responsible for the payment of wages. This is a far cry from condemning a union that doesn't do its job properly, from imposing a fine on it, from compelling it comply, and getting it to think it must pay wages.
:
The employer is compelled to bargain with its unions to resolve all compensation matters and all terms and conditions of employment. This act is proactive, because it requires both the union and the employer to talk about the pay equity issues in advance of bargaining so that the issues are understood well in advance of bargaining. The gaps are defined so that we know where the gaps exist. Then, when the parties go to the bargaining table, they can do their very best to eliminate those gaps that exist between men and women in jobs who do work of equal value.
It may take some time, but it is a proactive approach, because they can jointly develop a game plan. They can agree on the principles they wish to carry forward. They can put that plan in place and eventually, over time, reduce the gap that exists between men and women. That's the form in which wages and benefits are determined in a unionized environment. So let's give both parties responsibility for managing that process.
Currently the employer has a bilateral responsibility, and it exercises that to negotiate in good faith with the unions, and we do that. But when that process ends and the compensation is distributed, the union has a stake in that, and they influence the way in which wages are distributed.
Collective bargaining is a very complex process, and sometimes the terms and conditions of a settlement are affected by the leverage or the threat of a strike that is advanced by a union over an employer. Then the union ends up distributing those gains to its members. In distributing those gains, we're saying that the unions have a responsibility to ensure that the gains derived from collective bargaining are supposed to be used to address pay inequities, among other things.
We hope that this particular act will give joint responsibility to both unions and employers to define the problem, work out a plan, and solve the problem. That's essentially why employers are supportive of this legislation, because it sets out a real proactive mechanism wherein the two parties that set wages and conditions have responsibility for results, not just the employer.
Thank you.
:
Thank you, Madam Chair. My comments are for Ms. Carbonneau.
Hello, Ms. Carbonneau. I think you'll recognize me. We've worked together on anti-strikebreaking legislation for a long time, and we continue to support you. We have such a law in Quebec, but it's time we also had one at the federal level. Clearly we evolve more quickly in Quebec than elsewhere.
The minister is always telling us that his law is based on the Quebec law. He says that it's similar and that the government based itself on the Quebec law to produce its own. I'm going to give you the time allotted to me so that you can do a real comparison for us between what happens in Quebec, the Quebec statute, and what has been prepared for us here, in Ottawa.
So, take your time, you have the floor.
:
In both cases, it's a participatory process. However, as far as the Quebec law is concerned, the unions do actually have a proactive approach to take with employers. At the same time, it's fundamental, from the time there is a difference of opinion, a doubt about the fact it's a fundamental right of women, we can always call on a third party and ask for a decision that goes beyond the simple laws of the market. Let's put it like that. In my opinion, this is the most fundamental aspect.
Next, the Quebec law defines a certain number of guidelines that conform with international documentation. For example, to determine which jobs are female jobs, the Quebec law stipulates that, as soon as a profession has over 40% women in it, there is a strong possibility of discrimination based on sex. The federal law talks about 70%, thus excluding a very large number of women to start with.
In addition, the federal law is such that the unions will have to pay part of the wages, and this does not exist at all in the Quebec law. In the Quebec law, there are duties and responsibilities that belong to the pay equity committee, consisting of representatives of employers, women, workers and unions. Legal action can be taken against these people if they don't perform their responsibilities properly, but at no time will they be asked to pay missing wages. I'd say that this is a pretty fundamental difference.
:
Thank you, Madam Chair.
I want to come back to this notion of market forces. The PSECA talks about using market forces in order to evaluate compensation.
Mr. Farrell, Mr. Olsen, in your brief you suggest that market forces are integral to the determination of equitable compensation. Yet we've heard from the trade unions and other experts that market forces are not conducive to ensuring pay equity because the market forces in place have historically undervalued women's work. And I'm thinking about nurses, ESL teachers, telephone operators, secretaries, bank tellers, child care workers, and retail workers who traditionally have lower levels of pay.
With that in mind, how on earth could you consider market forces being a positive? Are they not harmful in determining women's compensation?