Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Equal Remuneration Convention, 1951 (No. 100) - Canada (Ratification: 1972)

Legislative developments. Federal. The Committee notes that the Public Sector Equitable Compensation Act (PSECA) was adopted in March 2009, and is expected to enter into force in 2011, following the development of regulations. The Committee notes the Government’s indication that the Act sets out a proactive approach to ensure compensation is equitable at the time compensation decisions are made. The Committee also notes the communication of the Canadian Labour Congress (CLC) stating that the PSECA represents a very significant setback for pay equity.

The Committee notes that the PSECA provides for an equitable compensation assessment of female predominant job groups or classes (defined as composed of at least 70 per cent female employees) to assess the value of the work performed, without gender bias, which is to lead to a plan to address any equitable compensation matters. The Committee notes that concerns have been raised by the Parliamentary Standing Committee on the Status of Women in its June 2009 report, and a recommendation was made to repeal the Act and replace it with a proactive federal pay equity law, as recommended by the Pay Equity Task Force. The CLC makes a similar recommendation. Though acknowledging that problems existed with the complaints-based approach to pay equity under the Canadian Human Rights Act, the Standing Committee raised concerns regarding the PSECA due to the high threshold of defining a “female predominant group”, the difficulty for individual women to bring a complaint, and the move from a rights-based approach to pay equity as set out in the Canadian Human Rights Act, to an issue of negotiation. The Committee also notes that, while the criteria to assess the value of the work performed are linked to skill, effort, responsibility and conditions, this assessment can then be limited by factors such as market forces. The Committee recalls in this regard that pursuant to the Convention, the Government is required to ensure the application of the principle of equal remuneration for men and women for work of equal value, which refers to rates of remuneration established without discrimination based on sex. The Committee is concerned that the assessment under the Act may not adequately ensure a non-discriminatory assessment, since factors such as market forces may themselves be inherently gender-biased. Given the concerns noted above, including by the CLC and the Parliamentary Standing Committee, the Committee asks the Government to take steps to assess further the potential impact of the Public Sector Equitable Compensation Act in ensuring equal remuneration for men and women for work of equal value, before it enters into force, and to take any necessary steps to address any deficiencies in this regard. It also asks the Government to provide specific information on the ability of individuals to bring a claim for non-compliance with the principle of equal remuneration for work of equal value, and the possible role of their union in that process. Noting the Government’s indication that the Act ensures equitable compensation at the time compensation decisions are made, the Committee asks the Government to clarify whether there is the possibility of periodically reviewing compensation based on the principle of equal remuneration for work of equal value, after compensation has been determined.

Legislative developments. Provincial. The Committee notes that new legislation on pay equity has been adopted in New Brunswick (Pay Equity Act 2009), and that the Quebec Pay Equity Act was amended in 2009. The Committee notes with interest that, pursuant to the recent amendments of the Quebec Pay Equity Act, pay equity audits need to be undertaken every five years and a joint advisory committee with an equal number of employers’ and employees’ representatives is established to advise the Equal Pay Commission, regarding making regulations, developing tools to facilitate the achievement or maintenance of pay equity, and addressing any problems in carrying out the Act. The Committee asks the Government to provide information on the practical application of the New Brunswick Pay Equity Act and the revised Quebec Pay Equity Act.

Work of equal value. The Committee recalls its previous observation regarding the fact that in a number of Canadian jurisdictions, full legislative expression had not been given to the principle of equal remuneration for work of equal value, as the legislation limited comparisons to the same work, similar work or substantially similar work. The Committee notes the Government’s indication that there has been no change in this regard with respect to Alberta, British Columbia, Newfoundland and Labrador, Saskatchewan, the Northwest Territories and the Yukon. In the jurisdictions with pay equity legislation applicable in the public sector, notably, Manitoba, New Brunswick, Nova Scotia and Prince Edward Island, there does not appear to be any progress in adopting similar legislation for the private sector. Regarding Nunavut, the Government indicates that a number of aspects of the labour and human rights legislation and practices are currently under review. Noting from the information provided in the Government’s report that very little progress has been made in closing the gender wage gap, the Committee urges the Government to take steps to ensure that the legislation in all the jurisdictions gives full expression to the concept of “work of equal value”, so that the principle of the Convention is applied in both the public and private sectors. The Committee asks the Government to provide detailed information of steps taken in this regard.

The Committee is raising other points in a request addressed directly to the Government.