Flight attendants’ pay equity case clears major hurdle

Federal Court of Appeal rules pay equity case against Air Canada can proceed as court redefines ‘establishment’

Flight attendants at Air Canada have cleared a major hurdle on the road to pay equity with pilots and technicians and have won the right to have their case heard before the Canadian Human Rights Tribunal.

The Federal Court of Appeal overturned an earlier Canadian Human Rights Tribunal decision and a Federal Court trial division decision that said the flight attendants — who are predominantly female — can’t have their wages determined by comparing them to pilots and technicians, who are mostly male.

The earlier decisions had quashed attempts to get similar pay because the attendants were “not in the same establishment” as the pilots and technicians. But the Court of Appeal ruled Air Canada treats the three employee groups as part of a single, integrated business regardless of the varying collective agreements and therefore all those employees are part of the same “establishment” as defined in section 10 of the Equal Wage Guidelines (EWG).

“The tribunal should have examined whether the same general principles or approach guided the employer in personnel and wage matters affecting the groups in question,” said Justice Marshall Rothstein in the decision.

He looked at a document entitled Air Canada’s Labour Relations Policy and Principles and said it deals with personnel and wage matters, is applicable to Air Canada employees and unions and makes no distinction between different groups of employees.

“It demonstrates that Air Canada treated all of its employee groups, including the ones at issue in this appeal, as being part of a single, integrated business with a common objective,” said Justice Rothstein.

The Court of Appeal focused on section 10 of the EWG legislation, passed in 1986, in ruling the case could proceed.

Justice Rothstein said there will always be some differences between the detailed wage and personnel policies in collective agreements governing different employees doing different jobs. He did not think it was the intent of the EWG to restrict comparisons to groups whose collective agreements contain identical wage and personnel policies.

“Such an interpretation would make comparisons impossible in a practical sense,” said Justice Rothstein. “The EWG… cannot be read to contemplate the impossible.”

In his concurring reasons, Justice John Evans said the terms of collective agreements that apply to complainants and other employees with whom they wish to be compared for pay equity purposes are irrelevant to determining whether the complainants and the comparators are employed in the same “establishment.”

Justice Evans said the case before the Court of Appeal was not about whether the work of flight attendants is of equal value to that performed by pilots and technicians.

Nor is it about whether, if the work is equal, the wages paid to flight attendants are less than those paid to pilots and technicians — both those issues will be decided when the case goes before the tribunal.

“These are tough issues that lie at the heart of any pay equity inquiry, but they have not yet been reached in this claim,” he said. The union first filed a pay equity complaint in 1987. Pamela Sachs, president of the Canadian Union of Public Employees’ (CUPE) Air Canada component, called the decision “long overdue justice.”

She said the decision to redefine “establishment” to include workers within the same company is groundbreaking and it opens the door to pay equity for women who are underpaid compared to their male counterparts working for the same employer.

For more information see:

C.U.P.E. v. Canadian Airlines International Ltd., 2004 CarswellNat 697, 2004 FCA 113 (F.C.A.)

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