An uneven path for pay equity in Ontario

Compliance and maintenance still an issue as Pay Equity Act marks its 20th year

Though Ontario’s Pay Equity Act will mark its 20th anniversary next month, there is still plenty of work to do to ensure greater equality for women in the province. Statistics show that, regardless of occupation or education, women earn, on average, dramatically less than men, many are still fighting for equal pay promised years ago and plenty of employers still have not complied with the legislation.

“It’s just not palatable in Ontario that we treat women like this,” said Irene Harris, secretary treasurer of the Ontario Federation of Labour (OFL) in Toronto which, along with other members of the Equal Pay Coalition, is calling for greater government support in a new campaign.

The act compares the value of jobs usually done by women to the value of jobs usually done by men based on four factors: skill, effort, responsibility and working conditions. (It does not cover employees in sectors under federal jurisdictions, students working during vacation and employers with fewer than 10 employees.) However, the wage gap between men and women is still wide, having gone from 36 per cent in 1987 to 29 per cent in 2007.

“The act itself implied, ‘Here’s what you should be paid in society’ but if the provincial government doesn’t fund it, it’s saying people have to take it out of their own budget,” said Harris.

That can lead to a depression in wages in female-dominated sectors such as health care and social services as employers, at the bargaining table, cut back on wages or benefits, claiming they have pay equity obligations, she said.

“In a way, it’s a cutback. Pay equity isn’t going to do anything for you,” she said.

However, Emanuela Heyninck, a commissioner with the Pay Equity Commission, says pay equity cannot deal with the wage gap all by itself and there are other issues to deal with, such as discriminatory practices in hiring and promotion, which is a human rights issue, or minimum wage.

“The unfortunate thing is people expect the Pay Equity Commission to do away with the wage gap. No, we can only deal with a certain aspect,” she said. “It’s unfortunate people mush all these things together because it sends the wrong signal.”

But there is still a lot of room for improvement, particularly in the private sector and with smaller employers that lack HR people and compensation systems, she said. While larger employers or those in the public sector must have, and post, a pay equity plan, smaller ones must at least show a compensation system with the act’s requirements.

As for complaints about budget restraints, Heyninck said: “We can’t accept that as a defence, everybody claims that. Any regulatory agency will tell you that any business will say, ‘We don’t have the funds.’”

There are problems both in achieving and maintaining compliance with the act, said Mary Cornish, senior partner with the law firm of Cavalluzzo Hayes Shilton McIntyre and Cornish and chair of the Equal Pay Coalition.

Back in 1988, employers had two years to phase in the statute and close the wage gap, but they were also expected to carry on with any future practices in a way that did not widen the gap. So if a job changes and the male comparator receives more money, the female comparator should also or if the male comparator vanishes through job restructuring or the female job changes substantially, equity must be maintained.

“The long and short of it is, in general, that hasn’t been done,” said Cornish. “A variety of employers just did nothing and don’t want to go back. There’s no time limit in the act so they’re all subject to litigation back to the date, so people don’t want to do that. For the people who did it originally, they thought it was done, so they didn’t maintain it. And enormous numbers of people in the private sector never did it.”

Campaigning for funds

As the 20th anniversary approaches, the Equal Pay Coalition is calling on the government to fully fund pay equity adjustments owed to public-sector women and fully fund the Pay Equity Commission, Hearings Tribunal and legal support services for women workers. The coalition contends the Ontario government currently owes $78 million to cover pay equity funding from 2006 to 2007 and it will owe a further $468 million for 2008 through 2011.

And while the proxy method (allowing all-female workplaces in the public sector to borrow a male comparator) was welcomed as a development in the early 1990s, there are still challenges for the private sector. Some of the smaller child-care centres, for example, have still not achieved 1993 wages, “which is absolutely ridiculous,” said Harris.

“Our legislation is the most comprehensive of any legislation, but it does not cover that problem,” said Heyninck.

The Pay Equity Commission also needs greater support to do its work, which includes ensuring employer compliance, paying any adjustments in wages owing, reinstating or compensating employees and prosecution, said Harris.

“Over the years, the commission itself dwindled due to funding, so they don’t have a lot of money or time to deal with the education part of it,” she said.

In the early days, the commission was well-funded, with a policy branch, a communications department and a library, said Heyninck.

“It was a totally novel concept back in the 1980s and the focus was really to educate the public, so they had a fair bit of money to launch fairly extensive media campaigns,” she said.

But with different provincial governments (particularly during the mid-1990s under Progressive Conservative Premier Mike Harris, who tried to repeal the proxy method and, when foiled, cut funding to adjustments) the commission has shrunk, though some support services are now provided through the Ministry of Labour, said Heyninck.

And the positives gained during the last 20 years should not be forgotten, she said. Ontario has one of the most comprehensive pay equity acts in the world, with educational materials that are accessed and used everyday.

“There’s been so much negativity and yet there’s been substantial gain for a whole variety of women that we don’t celebrate,” she said. “There have been enormous gains in many areas.”

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