Pay Equity Office. Emanuela Heyninck, Commissioner, Pay Equity Commission September 8, Dundas Street W, Suite 300 Toronto, ON M7A 2S6

Transcription

1 The Pay Equity Office Submission to the United Nations Working Group on Discrimination against Women in Law and in Practice Questionnaire on Good Practices Prepared by: Contact: Emanuela Heyninck, Commissioner, Pay Equity Commission September 8, 2016 Pay Equity Office 180 Dundas Street W, Suite 300 Toronto, ON M7A 2S6 Telephone: TTY : Facsimile: Website:

2 Pay Equity Commission Office of the Commissioner 180 Dundas Street West Suite 300 Toronto, ON M7A 2S6 Telephone: TTY: Facsimile: Website: Commission de l équité salariale Bureau de commissaire 180, rue Dundas Ouest Bureau 300 Toronto (Ontario) M7A 2S6 Téléphone : ATS : Télécopieur : Site Web : September 8, 2016 To the Working Group: The Pay Equity Commission is very pleased to have the opportunity to contribute to the research of the United Nations Working Group on the Issue of Discrimination Against Women in Law and Practice as you prepare a compendium on good practices in eliminating discrimination and empowering women. I have attached responses to the questionnaire that I hope are of some utility. As the Pay Equity Commission approaches the thirtieth anniversary of the historic passage of The Pay Equity Act, we are reflecting on our mandate to promote gender economic equality by: enforcing pay equity rights and obligations through effective case and complaint management; understanding gender wage gap through research; and, promoting awareness to advance economic equality for Ontario's working women. Ontario s Pay Equity Act is a progressive piece of legislation that can serve as a model to other jurisdictions. Recently, I was a witness before the Canadian Federal Special Committee on Pay Equity which released a report calling for proactive legislation federally. I also spoke to the impact of pay equity at a consultation held by the United Nations Secretary-General s High Level Panel on Women s Economic Empowerment in Ottawa on June 6,

3 Should any of these responses require further explanation or if there are any follow-up questions or if you need to contact us for any reason please do so. Best regards, [original signed] Emanuela Heyninck Commissioner Pay Equity Commission 2

4 Explanatory Note: The Province of Ontario is a sub-national jurisdiction in Canada. It is not a State actor and is not a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). However, Ontario supports the Canadian commitment to CEDAW and has provided information on such initiatives through the Ontario Provincial Government for Canadian reports to the United Nations. For the purposes of this questionnaire, please note that where the question refers to the State, it has been taken to mean the Province of Ontario. I. Identification of a law that has eliminated or substantially reduced discrimination and supported women s empowerment. Background Information on the Law 1. Name/Title of the Legislation: Pay Equity Act, R.S.O. 1990, c. P.7 (referred to as the PEA or the Act) 2. Date the law passed and came into force: The Act was passed in 1987 and came into force in January 1, Was it a new law or an amendment of an existing law? It was a new law. It was also unique in that it was not complaint-based legislation, but was pro-active in requiring employers to take specific measures to eliminate discrimination. 4. Is the legislation focused specifically on discrimination against women/gender equality, or is it part of a larger piece of legislation (i.e. Labour law with provisions around gender)? Please explain. The legislation is focused specifically on discrimination against women/gender equality in regards to compensation in an employer s workplace. There continue to be other laws that also deal with discrimination against women, including labour legislation provisions around gender and also human rights legislation. However the Pay Equity Act is not a part of a larger piece of legislation. 5. Please provide a summary of the content of the law, its preamble or explanatory note, policy measures, dissemination and implementation regulations, and provisions for access to justice, as well a link to where all these can be found online. Whereas it is desirable that affirmative action be taken to redress gender discrimination in the compensation of employees employed in female job classes in Ontario; the Act requires all Ontario private sector employers with 10 or more employees and all public sector employers to ensure that their compensation practices provide for pay equity. The Act specifies the steps to achieve pay equity by: 3

5 Undertaking comparisons between female and male job classes in terms of compensation and value Determining value of work using a composite of skill, effort, responsibility and working conditions Setting out methods of comparison Achieving pay equity by adjusting the job rates of female job classes so that they are at least equal to the job rates of comparably valued male job classes. There is a process to trigger investigations of non-compliance, but the requirement for employers to achieve and maintain pay equity arises as soon as an employer comes under the purview of the legislation and is not complaint based. The legislation also covers specified employers who were in existence at the time of the Act s passage in many female-dominated sectors where comparisons with male job classes are not possible (addressing occupational segregation) through the use of the proxy method of comparison. This allows employers in certain broad public sectors with all female employees to borrow pay equity adjusted job rate information from public sector employers in order to achieve pay equity. This method is not available to the private sector. 6. When was the first draft of this law introduced, and when was it adopted (please specify dates of first draft and adoption? The first reading of the bill, introduced as Bill 154: An Act to provide for Pay Equity, took place on November 24, At this stage the purpose of the bill is explained. The second reading took place on February 3, At this stage the bill is debated in principle. The bill then went to review by Committee. The third and final reading took place on June 15, 1987 where it was voted on and approved. The bill received Royal Assent on June 29, This is when the Lieutenant Governor signed the bill and it became law. The Law s Compliance with CEDAW 7. In your view, does the law in question place a positive duty on the State to achieve substantive equality for women? The PEA places a positive duty on all employers, including the state as employer, to take prescribed steps to eliminate discrimination in compensation of work usually performed by women. Employees have access to a complaint and review process by an independent adjudicative agency, which also provides dispute resolution services. This contributes to the goal of substantive equality for women. 4

6 8. Does the law contain a definition of discrimination that is in accord with Article 1 of CEDAW? As with many terms of the Act, (such as employer, employee, and gender neutral job evaluation tool) the term discrimination is undefined. However, it has been developed through Tribunal jurisprudence The premise of the PEA is that discrimination in compensation as between men and women exists in society and in all workplaces, it is not required that discrimination be proved. The law is a recognition of the systemic nature of wage discrimination and provides a strategy to deal with the discrimination. The focus of the PEA is on specific steps and mechanisms required to be taken by employers to eliminate the discrimination. In assessing the sufficiency of the measures and developing applicable standards, the Tribunal has broad latitude to interpret the PEA and has had regard to human rights jurisprudence and international conventions, as well as expert evidence regarding discrimination, women s work and experiences. 9. Does the law s definition of discrimination include and define both direct and indirect discrimination? The law is premised on the existence of both direct and indirect discrimination. Discrimination is accepted to exist, however caused. Both direct and indirect discrimination is considered in assessing whether the employer s actions/mechanisms in evaluating job classes and making comparisons are sufficient i.e. non-discriminatory and gender neutral. 10. How has the Constitution supported the process of adoption and implementation of the law? Does the Constitution have an equality and non-discrimination provision? Ontario is a province of Canada and is bound by The Canadian Constitution which includes the Constitution Act, 1867, and the Constitution Act, 1982 (which enshrined the Charter of Rights and Freedoms in the Constitution). Equality rights, the rights to be treated without discrimination, are guaranteed in the Charter. Under the Charter of Rights and Freedoms, section 15 specifically supports the creation of affirmative action programs. The Charter is applicable to government action and in interpreting all legislation, courts and Tribunals consider Charter values which include equality of women. The Ontario Human Rights Code prohibits all discrimination on the basis of gender and applies to all employers as well as government. 5

7 11. Does the law contain provisions that address discrimination against women from an intersectional perspective, taking into account a diversity of women s social identities, statuses and experiences? As discrimination is not limited by a definition, the law can consider diverse women s experiences and identities in a particular sector/occupation in assessing the adequacy of the measures taken by an employer. 12. Whom of the following are bound by the law? The State (the Province of Ontario) Yes (X) No ( ) Public Authorities/Bodies Yes (X) No ( ) Civil society organisations Yes (X) No ( ) Private companies Yes (X) No ( ) Individuals In some cases the law may apply to individuals. Individuals could be the sole owners of businesses that would be responsible for pay equity in that establishment. All Ontario private sector employers with 10 or more employees and all public sector employers a bound by the Act to ensure that their compensation practices provide for pay equity. 6

8 II. How the law came into being and was implemented 1. What was the impetus for the development of this law (i.e. social movement activism, political platform, a Supreme Court ruling, an egregious case of discrimination, constitutional reform )? Increased educational opportunities and workforce participation for women in the post-wwii era in addition to increasing evidence of inequities in the treatment of women produced a greater degree of social consensus on the need for fairness. Adoption of the International Labour Organization s Convention 100 in 1951 was an important contributing factor. Later, Ontario s Human Rights Code 1962 established equal remuneration for equal work as a right. Ontario s Employment Standards Act, 1968 included a system of job earnings by quantity and quality of production, expressed in terms of job factors: skill, effort, responsibility and working conditions. In 1973, the Ontario Government established an Ontario Advisory Council on the Status of Women and its work with advocates was the primary impetus for the continuing societal evolution for the development of this law. In 1975, the UN s International Women s Year maintained momentum towards the development of the Act. Responding to calls for legislative action, the national government passed the Canadian Human Rights Act in an effort to be responsive to the calls for pay equity. Through the 1980 s a wide variety of legislative bills were produced to address gaps in meeting the requirements of fairness. In 1984 a Royal Commission on equality in employment outlined the required steps to comprehensively address the issue. It was widely supported by civil society. Together these matters all contributed to the development of the Act in 1986/ Were there any conditions in the political context that made it possible for this law to be developed and adopted at the time that it was (i.e. a particular political party in power, a conflict/post conflict situation, a recent ratification of an HR instrument, etc.)? Four private member s bills concerning pay equity were introduced in Ontario from 1979 to None became law, but following these attempts the principle of equal pay for substantially the same kind of work was introduced in 1983 in amendments to the Employment Standards Act. However, this still did not address equal pay for work of equal value. A change in government shortly after the 1985 election in Ontario created a changed political dynamic. Two minority opposition parties established a political agreement to jointly pursue a legislative agenda that included support for pay equity. The successor government issued a discussion paper on pay equity in 1985 which called for input on the design of the law. After two years of consultations, the Act was passed. 7

9 3. What actors were consulted and how were they consulted in the law s development and formulation? The consultation panel received 385 written and oral presentations. There were eight days of discussions generated 2,117 pages of transcript. Lawyers, stakeholders, unions, scholars, Member of Parliament, chambers of commerce and other social groups had provided input during the consultation process. 4. Was there opposition to the law? Various business organizations during the consultation process expressed concerns about the PEA and its implementation. There were concerns that the government would interfere with the market and control wages with this legislation. 6. Were there other laws that needed to be reformed in order to enact this law? No other laws needed to be reformed in order to enact this law. 7. Were any international human rights treaties or mechanisms referenced in the law s creation? The International Labour Organization s commitment to equal pay for work of equal value is referenced in the 1985 Green Paper on Pay Equity produced by the government in the lead up to the creation of the law. The Ontario Human Rights Code is also mentioned. No international human rights treaties or mechanisms appear to be referenced in documents related to the debates in the legislature around the creation of the PEA. However, it is very likely that during the consultations civil society stakeholders discussed gender wage gaps as a violation of human rights and pay equity as a fundamental human right as this is a part of the narrative in Ontario. 8. Did any international/regional/national human rights mechanism issue recommendations to the State in regard to amendment or formulation of this law, or regarding effective implementation? If yes, was this recommendation formulated prior, during or after the adoption of the law? It does not appear that any human rights mechanism issued recommendations to Ontario during the formulation of the law. As well, after the law was adopted, it does not appear that there were any recommendations. However, Canadian Human Rights Commission (national) and Ontario Human Rights Commission (sub-national) materials were considered. 8

10 9. What measures to support implementation were built into the law or developed immediately after (and as a result of) its passing? This could include such measures as budgetary and resource allocation, monitoring mechanisms, data collection, impact measurement mechanisms, independent monitoring, etc. Please list and explain, providing any relevant documents. The Ontario Pay Equity Commission was created in January 1988 to monitor and enforce the Act. Ontario is one of only two jurisdictions in Canada that have a well-defined, stand-alone pay equity law with an independent enforcement agency that applies to public and private employers. The Pay Equity Commission is accountable to the Ontario Legislature through the Ministry of Labour. Annual reports are filed each year and are publicly available. The Pay Equity Commission is comprised of two separate, independent parts: the Pay Equity Office and the Pay Equity Hearings Tribunal. The Pay Equity Office (the Office) is responsible for enforcing the Act. The Review Services Unit is required to investigate, attempt to settle, and resolve pay equity complaints and objections to pay equity plans, to monitor the implementation and maintenance of pay equity in workplaces and to resolve all pay equity related issues by Order or Notice of Decision. The Office also provides programs and services to help people understand and comply with the Act. Finally, the Office has legislative authority to conduct research and disseminate information about any aspect of pay equity and related subjects. The Pay Equity Hearings Tribunal (the Tribunal) is responsible for adjudicating disputes that arise under the Pay Equity Act on a de novo basis. Parties must bring their disputes first to the Office before accessing the tribunal process. The Tribunal has exclusive jurisdiction to determine all questions of fact or law that arise in any matter before it. The decisions of the Tribunal are final and conclusive for all purposes and it is this body of law as well as any jurisprudence from the courts that dictate the interpretation of the Act. Government funded a specific legal aid clinic to assist non-union / unrepresented women by providing legal advice and representation specifically in pay equity matters. The Pay Equity Advocacy and Legal Services (PEALS) ran from 1991 to Specifically PEALS provided: - Free legal advice and representation for non-union employees - Information and education assistance (outreach) - Referrals to other pay equity advocacy or advisory services However, their mandate was reduced to deal only with current cases due to a decrease in funding in PEALS obtained additional funding to complete any ongoing cases and was then eliminated. 9

11 10. How was the law made accessible to the public? Did it include formal training on the new law for all stakeholders involved? Were specific groups of women targeted for these activities? Who was involved in these initiatives, and where did the funding come from? Please answer in detail. Ontario bills are published in print and electronically. They appear with English and French text side-by-side on each page. First reading bills usually are posted within two days of introduction and amended bills are posted after being reported to the House. The amended versions show the changes that were made. When a bill has received Royal Assent it is posted in its final version. Ontario maintains an e-law database that is publicly accessible. The Office held numerous speaking engagements shortly after the PEA was passed to make information available as broadly as possible. It developed workshops for municipalities, school boards and private employers. The Office worked with the Ministry of Colleges and Universities and developed a community college course Implementing Pay Equity in the Workplace. The 30- hour course took participants through the pay equity process in a case study. A training video was also available. The Office also issued regular newsletters, published step by step guides for implementation, advertised using subway posters etc. and had a hotline to answer questions. Act provided for a phase in implementation. In the implementation stage larger employers were required to post the results of pay equity (plans) and employees were allowed to object and make formal complaints. Employers and unions were required to negotiate plans and were provided with assistance, or could seek assistance from the Office. The Office has continually updated and developed new educational resources. For example, e-learning modules targeting small businesses are available online. The Office also partners with other government ministries and stakeholder groups to provide outreach and education to the public. Funding for activities such as this comes from the Office s annual budget. 11. Have there been any barriers to the law s full and successful implementation? The 1993 amendment to the PEA contained provisions for proportional value and proxy methods of comparison. These provisions were added because organizations did not have comparable male job classes for job comparison purposes. In 1996, the government repealed the proxy comparison method with the passing of Bill 26, Savings and Restructuring Act, Schedule J. The Ontario Supreme Court decided that repealing the proxy method violated the Charter of Rights and Freedoms. The court declared that Schedule J had no force, reinstating the proxy method in the PEA. 10

12 The Office has noted some ongoing barriers that are often encountered including a lack of understanding of the law and a perceived complexity on the part of employers, especially small employers. As well, employers often have cost concerns regarding consultants that are often hired to assist in becoming pay equity compliant. 12. What kinds of roles are being carried out by civil society/women s organizations in supporting the implementation and impact of the law? How are these activities being financed? There is broad support for the PEA in Ontario by civil society including businesses, unions, and non-profits. They are funded by a wide variety of mechanisms for example profits, member dues, and grants. 11

13 III. The impacts that the law has had for women on the ground 1. Did the adoption of the law result in the creation of any policies? Yes, the adoption of the law resulted in the creation of many policies and programs over its nearly thirty year history. Recently, the Act and the Office that supports it have been part of the Gender Wage Gap Strategy project which aims to close the gender wage gap in Ontario in the context of the 21 st century. The Strategy s Steering Committee, of which the Pay Equity Commissioner was a member, made policy recommendations around child care, women in leadership, and valuing work to contribute to women s economic equality. One result was the creation of a new Associate Minister of Education, Responsible for Early Years and Child Care. The Pay Equity Office itself continues to create policies related to its outreach, education, and monitoring efforts. For example, the PEO s Gender Wage Gap Grant Program (intended to advance actions to promote equality between women and men that support efforts to close Ontario's gender wage gap) has funded six projects in just two years totalling over $84,000 and recently entered into its third grant cycle. 2. Have court cases/decisions resulted from the law? Has this data been systematically collected? If so, please provide details about the number of cases, convictions, decisions made. Yes, court cases and decisions have resulted from the law. There have been 562 decisions written by the Pay Equity Hearing Tribunal. They are found in The Canadian Legal Information Institute database with partial coverage from and full coverage from Not every decision results in adjustments being awarded. Review Officers of the Pay Equity Office also write decisions and orders. Review Officers have powers under the Act to investigate complaints, attempt to settle disputes about pay equity and make orders for compliance. 3. What specific and measurable outcomes showing the impact of the law on society and on women s enjoyment of their rights have been recorded as a result of the adoption and implementation of the law? How have these been monitored and by whom? Over the last three fiscal years (from to ) 5,103 Ontario workers received pay equity adjustments from their employers, totalling nearly $12 million. These results are monitored by the Pay Equity Office through an electronic case management system which tracks decisions and orders. 12

14 4. Are there other impacts of the law that have been observed? The Pay Equity Act is a fundamental tool that can be used to address parts of the gender wage gap. Other Ontario laws that may help to close the gap include the equal pay for equal work provision in the Employment Standards Act and the Ontario s Human Rights Code. Statistics Canada data shows that the gender wage gap in Ontario for full-time, full-year workers has decreased from 35% in 1988 (the year the law came into force) to 21% in What mechanisms have been set up to review and assess the implementation of the law? All provincial agencies undergo mandate reviews. These must be completed every seven years, in accordance with provincial guidelines. The PEO s mandate is set out in its constituting instrument and reiterated within the Memorandum of Understanding; it sets out the parameters within which it may perform its responsibilities or provide services. Mandate reviews are not value-for-money audits. Reviews address the following: 1. Whether the mechanism is carrying out the activities and operations that represent its mandate 2. Whether, and the extent to which, the mandate continues to be relevant to the goals and priorities of the Government of Ontario 3. Whether all or part of the functions of the mechanism are best performed by the provincial agency, or whether they might be better performed by a ministry, another provincial agency or another entity The results of each mandate review is reported through an executive review process for approval, and informs decision-making relating to whether the mechanism continues to be the best means for delivery of the services captured under its mandate. The Government could decide to maintain, dissolve, change or adjust, or improve effectiveness of the provincial agency, and some of those decisions might require legislative change. 6. Is there data on how the law has affected some groups of women differently (i.e. based on race, ethnicity, religion, social class, age, etc.)? The Pay Equity Office recently started tracking female job classes that were found to be underpaid and the amount of pay equity adjustments required. The Office maintains a database based on job classes, not individuals, making it difficult to track dimensions of diversity at this time. 13

15 7. Has there been independent monitoring of the law? The Ontario Ombudsman s authority to investigate complaints is set out in the Ombudsman Act, legislation that allows the Ombudsman to report on findings annually and through special reports which are made public. The Pay Equity Office, as an independent regulatory agency, reports on the law in annual reports to the Ontario legislature through the Minister of Labour. 14