22 years and counting

Canada Post pay equity dispute calls system into question

Canada Post is appealing a pay equity ruling by the Canadian Human Rights Tribunal last month, prolonging a 22-year-long lawsuit in what’s called the “longest pay equity fight in Canada.”

As it heads into appeal, questions the lawsuit raised about how to settle a pay equity claim remain unanswered. Last month, ministers at the federal labour and justice departments said they’re not prepared to act on a pay equity reform before further study on issues such as the definition of “establishment.”

The dispute involves the postal service and the Public Service Alliance of Canada (PSAC), which says about 6,000 current and former clerical and regulatory workers are due back pay estimated to be about $150 million.

The union alleged that due to gender discrimination, in 1983 when the pay equity suit was launched, workers in the male-dominated postal operations group were earning almost 60 per cent more than the group of clerical and regulatory workers, 80 per cent of whom were women. A new job evaluation plan agreed on by both the union and Canada Post eliminated the wage gap in June 2002.

In finding that there was a wage gap caused by systemic sex discrimination prior to 2002, the human rights tribunal ordered Canada Post to pay up the lost wages dating back to 1982, including interest. However, due to uncertainty around job information and non-wage compensation issues, the tribunal ordered the amount to be reduced by half. The union estimates the final amount to be about $150 million.

Lynn Palmer, Canada Post’s vice-president of human resources, flatly rejected the claim that gender discrimination was a factor.

“We maintain that we didn’t discriminate on the basis of sex,” said Palmer. “There may have been differences in pay, but that was not due to discrimination on the basis of sex. There were other factors, such as the differences in collective bargaining and the power of different unions to negotiate on behalf of their members that could have caused the disparity.”

Palmer added that comparing the inside clerical and regulatory with the postal operations workers amounted to “cherry picking.” Among the workers represented by PSAC, “there was no problem. We paid equal pay for equal work.”

Palmer also said that the job evaluation method, the job data and the job information did not meet a standard of certainty. “But then the tribunal proceeded to create a whole new category of reasonable reliability, and then awarded the union 50 per cent” of the wage gap, she said.

Nycole Turmel, president of PSAC, said if there were unreliable data, “we have to keep in mind that the employer delayed the process from 1984 until 1990. It didn’t provide the documents and information, and it was the party that had the control over this part.” Turmel added that although the union is also unhappy with the 50-per-cent reduction of the award, it will not appeal the decision. “We think that after 22 years, it’s time to resolve the issue.”

The union also urged the federal government to enact legislation this fall to reform the pay equity system, as recommended by the Pay Equity Task Force in May 2004.

Beth Bilson, dean of the College of Law at Saskatoon’s University of Saskatchewan and chair of the task force, said the case illustrates the difficulties of the current system.

On average, lawsuits arising out of the federal pay equity provisions in the Canadian Human Rights Act take 176 days of hearings, more than 10 times the typical length of other discrimination cases before the human rights tribunal. The Canada Post case took more than 400 days of hearings.

One of the key recommendations that Bilson’s task force made was for a proactive pay equity system that would place the burden on employers, not complainants, to ensure the principle of equal pay for equal work is enacted.

Because individuals wouldn’t have access to information about others’ pay and job descriptions, the system effectively shuts out all but unions from filing complaints, Bilson said. A proactive system was first introduced in Manitoba, then in Ontario, Quebec and Atlantic Canada.

Drawing on Ontario’s experience, Bilson called for the creation of an independent body to help employers, particularly if the law is to apply to small employers that don’t have the resources to hire compensation consultants to conduct job evaluations.

“The current Canadian Human Rights Act is basically a 1970’s piece of legislation, which states a principle, but because of the nature of the issue, that’s not much help. Because you’re talking about equal pay for equal work, there are a lot of technical things involved, and employers have no way of doing this themselves.”

The current system not only requires a legal “face off,” said Bilson, but in some cases, “you have the employer, the union and the (Canadian Human Rights) Commission each putting forward its own scheme and saying, ‘This is the best way to do this.’”

Bilson issued the 113 recommendations in May 2004 and appeared before the Standing Committee on the Status of Women in May this year.

Last month, in a written response to the standing committee’s recommendation for a new law to be tabled by Oct. 31, Minister of Justice Irwin Cotler and Minister of Labour and Housing Joe Fontana said they would need further consultation to examine four key issues.

These include the relationship between pay equity and collective bargaining, the obligations of employers and unions, the establishment of pay equity committees to manage the process and the authority vested in them, and the definition of establishment. The ministers added that they’re working toward introducing a bill in late 2006 or early 2007.

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