International mechanisms to revalue women's work: research

Appendix 1 – Case Study 3 – Canada: Access to Male Comparators

The Canadian GPG was in 17.6% in 2019^[88] with 31% of employees covered by collective bargaining in 2020^[89]. This case study examines the struggle for pay equity in Ontario through an examination of the Ontario Equal Pay Coalition (EPC) and the Ontario Nurses’ Association (ONA)/ Service Employees International Union (SEIU). It shows the importance of having an agreed methodology for re-valuing women’s work, as well as pay equity legislation. The use of the Canadian Charter of Rights and Freedoms to challenge the decision of the Pay Equity Hearings Tribunal shows how a human rights framework can be effective in establishing legal decisions to protect pay equity.

Initiative

The creation of the Ontario Equal Pay Coalition (EPC), in 1974, drew together trade unions, feminist groups and civic organisations to fight for pay equity. It was unusual for trade unions and feminist groups to work together at that time. One of the first achievements was the 1988 Ontario Pay Equity Act, which recognised the value of women’s work. Pay equity plans identified where ‘women’s work’ was paid less than ‘men’s work’ because of discrimination in wage setting policies. The 1988 Act required employers, both public and private, to take appropriate action in their workplaces, recognise the value of women’s work in their own policies and be prepared to fund the resulting pay increases. Ontario was the first Canadian province to extend employment equity to the provincially regulated private sector.^[90]

However, in predominantly female workplaces, it was not possible to do job-to-job comparisons because of a lack of male jobs for women to compare with. The Pay Equity Commission, created by the 1988 Pay Equity Act, recommended two new comparison methods: 1) Proportional – compares male and female job classes and looks at how male job classes are paid across an organisation by examining the relationship between compensation and the value of work performance; 2) Proxy – in workplaces where there were few or no male job classes, a similar, larger workplace could be used as a ‘proxy’ comparator because the wage gap between men and women had already been identified by the job-to-job comparator. Although there were attempts to put these recommendations into legislation, no statutory agreements were reached and by 2012, there was evidence that the GPG was increasing in Ontario.

In 2016, the Ontario Nurses’ Association and the Service Employees International Union (SEIU) applied to the Pay Equity Hearings Tribunal alleging that the Participating Nursing Homes (PNH) had violated the Pay Equity Act RSO 1990 c P.7 because of a failure to maintain pay equity for their employees. The Tribunal rejected the arguments of ONA / SEIU in 2016^[91]. In 2019, ONA and SEIU applied for a judicial review of this decision.

Outcome

In 2019, the Ontario Superior Court of Justice Divisional Court concluded that the Act did not contravene S.15 of the Canadian Charter of Rights and Freedoms (CCRF), but that the Tribunal failed to consider CCRF values when interpreting the Act. It failed to give effect to the CCRF equality protection as the Act has a statutory mandate ‘to recognise and redress the systematic discrimination that women suffer in the way in which they are compensated in the workforce and ensure discrimination does not emerge. Therefore ‘the decision of the Tribunal was unreasonable’. Women in predominantly female workplaces should have access to male comparators to maintain pay equity. The Tribunal should explain what procedures to use to ensure claimants have access to male comparators to determine if pay equity is maintained^[92]. This decision was upheld on appeal. The ruling of the Superior Court and Appeal Court are significant in that they acknowledge the importance of methodology in re-evaluating women’s work and pay through having access to a system of ‘proxy’ comparability. This decision can be seen as part of wider changes in Canada, where new pay equity legislation has been introduced by other provincial administrations. At Federal level, the Pay Equity Act (2018) will be supported by the Pay Equity Regulations recently consulted on by the Federal Government, which will ensure that women and men in federally regulated public and private sector workplaces will receive equal pay for work of equal value^[93].

Applicability

Supporting methodologies for job comparisons are an essential part of implementing pay equity legislation. For predominantly female workplaces, there has to be an agreed comparator, a ‘proxy’, with a similar larger workplace and adequate funding for the pay increases that result and ways of ensuring that pay increases are maintained. The role of government in this process is key and this case study highlights the role of ‘human rights’ principals^[94]. Employers alone will not make these changes. Trade unions play an essential role in maintaining the campaigns for equal pay and in bringing cases to court.