LCBO casual workers in Ontario achieve equal pay for equal work

Employers need to be ‘constantly vigilant’ about compensation for groups: Lawyer
By John Dujay
|Canadian HR Reporter|Last Updated: 03/30/2017

The fight to achieve equal pay for equal work took another step forward after a ruling compelled the Liquor Control Board of Ontario (LCBO) to pay casual workers the same rate as full-time workers.

An agreement reached Nov. 7, 2016, was finalized after an arbitration hearing Feb. 4, 2017. All permanent full-time, part-time and casual customer service representatives of the LCBO were placed on the same pay grid, eliminating a practice that saw casual employees paid less for undertaking essentially the same work.

With this new grid, about 77 per cent of casuals (4,224 of 5,509) will see a wage increase, with an immediate average raise of 9.5 per cent. As well, the 220 permanent full-time consumer service reps who are not currently at the top of the grid would receive raises, with an average increase of 7.7 per cent.

A 2013 complaint to the Human Rights Tribunal of Ontario started the ball rolling for the Ontario Public Service Employees Union (OPSEU).

“It represents a ground-breaking victory, and presents an opportunity for other workplaces, and other unions to use this as an example of (how) there should be equal pay for equal work,” said Warren (Smokey) Thomas, president of OPSEU in Ottawa.

LCBO casual workers make up 84 per cent of customer service representatives and the “vast majority” are female, he said. 

“The pay difference between part-time and full-time (pay) can be anywhere between $2 an hour to about $6 or $7 an hour, maybe more in some places. There’s quite a wide gap,” said Thomas, adding OPSEU is hopeful this ruling might lead to “societal change.”

“While there have been a lot of gains, there is a long way to go,” he said. “To me, this is a huge victory, but will it be earth-shattering? No. It’s just one more victory for labour groups on the way to trying to achieve equal pay for equal work and a living wage for everybody.”

The ruling might not have a wide-ranging effect because of how it started, according to Andrea Zwack, partner at Gall, Legge, Grant and Munroe in Vancouver.

“It’s the result of (a collective) agreement and it is an interest arbitration,” she said. “It has a lesser impact than, for example, if the human rights commission had actually ruled the LCBO was discriminating against its female employees. That would be a much more significant impact for employers.”

But the ruling cannot be ignored by employers, said Zwack.

“It does raise a caution, or a direction, to employers and to unions, quite frankly, in their collective bargaining with respect to the need to be constantly vigilant that the way you are compensating different groups of employees is not having an adverse impact on one particular group over another, based on some protected ground.”

This issue is seen endemically in retail, said Sarah Kaplan, director of the Institute for Gender and the Economy at the University of Toronto’s Rotman School of Management.

“Certain job classifications end up being more gendered female, and those are the ones that end up being paid less.”

Many retailers use the casual category to justify a pay difference, she said. “It means there is no direct comparison because — as in the LCBO case — there are the casual workers versus the full-time workers: We’re paying differently because those are different jobs, but what those different jobs are hiding is unequal pay, if one of those jobs is gendered.”

“The implication for other retail establishments is for them to be looking into whether there are certain jobs that are highly gendered female — that do have a lower pay scale than other jobs — which are pretty much equivalent work and have a higher pay scale.”

Reasons for inequality

Part of the reason gender pay inequity exists may be because the issue is not fully understood by employers and employees.

“I don’t think that people are aware that these dynamics are going on. I think two things are possible: One is they think it’s going on in the world, but not in their own organization; and (two) they think they are immune because they are good people,” said Kaplan.

There may also be a fatigue that helps tamp down any enthusiasm to address it.

“People have heard so much about it, they are kind of sick of it at the moment we need to make that next push,” she said. “I am not saying people are consciously discriminating — the point is we are all socialized, in a way, to devalue women’s contributions in the economy.”

Unintended biases are “just built into how we see the world play out unless you’re very careful about being conscious of them,” said Kaplan.

“There is study after study after study that shows: Whether we are thinking about whether to hire someone, whether we are considering to promote them, whether we are considering to invest in a female-led startup — whatever category we want to talk about in the economy — we tend to devalue the female contribution.”

For the most part, experts believe biases are unintentional but “it’s not about intention, it’s about outcome and impact,” said Paulette Senior, president and CEO of the Canadian Women’s Foundation in Toronto.

“The better question to ask is ‘What is the impact on the people who work for us?’ such that we can address it from there, as opposed to ‘Well, it’s not really what we intended’ because, intention or not, it becomes irrelevant in terms of impact.”

“Working people are very much aware of the biases. They may not know all the rudiments of it, they may not understand all the structure in terms of how it came to exist, but I think they know. And women have known for a very long time. Women see it in their work environments,” she said.

Potential solutions for HR, government

A good first step for human resources departments to take is to collect the data, according to Kaplan, because “lots of organizations have not shed light on what’s going on.”

By looking at something such as a simple correlation between the percentages of women in the organization and how many are being paid in the lower range “(it) might indicate you have a problem,” she said.

But one department might encounter pushback from a competing department.

“The HR function is saying, ‘I want to do this analysis to really understand what’s going on’ and the legal function is saying, ‘I don’t want you to do the analysis because if we find out we are not compliant, then it could come up in a human rights complaint,’” said Kaplan.

“Organizations from the very top need to develop a commitment to do this that is not based on any kind of legal concern, but is based on a human rights concern of really wanting to make sure that people are being paid fairly for their work.”

Addressing inequality must begin at the highest level of management, said Senior.

“The issue of equal pay is beyond HR departments, quite frankly,” she said. “It really is a commitment that the organization takes. It needs to be a recognition that inequity exists with regards to pay, but also that inequality also exists.”

Having more females in leadership roles might help, according to Senior, “ensuring that diversity is reflected not just in terms of what people look like, but in terms of the policies and practices that are being adhered to.”

And once the equal pay edict from above has been firmly established, it is time for HR departments to implement policies, according to Senior.

“It’s ensuring that as hiring takes place, there are no built-in barriers in terms of HR policies that exist within that organization, because sometimes the practices that we fall into, we don’t necessarily lift them up to scrutiny.”

Pay inequality must also be tackled by the provincial governments, according to the experts.

“If the (Ontario) premier is serious about closing the gender wage gap and ending discrimination for equal pay for work of equal value, they would — in their upcoming (Changing) Workplaces Review — address this part-time versus full-time pay issue,” said Thomas.

Governments can also implement programs to encourage women to enter male-dominated industries by using improved techniques in high school guidance, and by targeting sectors that young women should consider, according to Scott Allinson, vice-president of public affairs at the Human Resources Professionals Association (HRPA) in Toronto.

“In high school, if they don’t get the proper guidance, they actually drop out,” he said.

“We recommend the government develop a pilot project that highlights female role models in those sectors and give them the confidence to keep going forward.”

Traditionally, females were put on a path that would take them into bachelor of arts degrees, and when they come into the workforce, they actually started at a lower wage, said Allinson, citing the 2015 HRPA study Closing the Gender Wage Gap.

“Women going into the STEMs field (science, technology, engineering, mathematics) when they graduate, and when they go into the workforce, they actually start at a higher wage, and that wage gap is a lot closer than it would be for somebody outside of the STEMs.”

Slow progress

The gender wage gap in Canada is moving slowly toward parity, but a gulf remains in terms of full equality. 

“It’s getting better than what we saw in the 80s, when it was sitting around 70 odd cents on the dollar to what males made. Now it’s up around 87 cents, (according to) the last StatsCan number that came out,” said Allinson.

The gap is closing, according to a March 2017 Statistics Canada report: Women and Paid Work.

“We’re getting there, but it just takes more education and awareness,” said Allinson.

“The fact that we’ve seen in the last 30 years how much the gap has started to close, and with more women going into the workforce, and with more women going into the STEMs field, I definitely think in our lifetime, we will get close to being 90 to 95 per cent (gender wage ratio).”

But the World Economic Forum released a report in October — The Global Gender Gap Report 2016 — that said, overall, Canada had fallen from 30th to 35th place out of 144 countries, according to Senior.

The fight became “stalemated” in the 1990s and the early 2000s, according to Kaplan, after some major gains were made.

“We picked the low-hanging fruit, but the tougher work that’s going to get the last 20 per cent, that tougher work requires organizational change in structures,” she said.

“It is going so much slower than anyone thought it would. We are making progress but so much less than what we should, given the amount of talk about it.”  

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