The Canada Post Pay Equity Case
Victory at Last!
Twenty eight years. That's how long it took for the Public Service Alliance of Canada to win its pay equity complaint against Canada Post on behalf of clerical workers. If anything, this victory reinforces the fact that the government needs to change its policy and take concrete measures to respect and promote women's constitutional equality rights. It shouldn't take 28 years for women to achieve the right to equal pay for work of equal value. We need a proactive federal pay equity law now!
1983: PSAC files the complaint
In September 1983, PSAC filed a pay equity complaint against Canada Post, on behalf of the Clerical and Regulatory Group (CR) bargaining unit at Canada Post.
This complaint sought to get equal pay for the members of the female dominated CR group, including as benefits clerks, accounts payable clerks and frontline contact centre workers at Canada Post . PSAC argued that their work was undervalued, when compared to what was being paid to workers in the Postal Operations Group, a male dominated group that included the letter carriers, mail handlers and mail sorters.
Since Canada Post is a federally regulated employer, the complaint was filed with the Canadian Human Rights Commission, under the Canadian Human Rights Act.
Section 11 of the Canadian Human Rights Act provides that:
… it is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.
The Act further states that the criterion to be applied when assessing the value of work is “the skill, effort, and responsibility required in the performance of the work and the conditions under which it is performed.”
The Equal Wages Guidelines say that when an occupational group has more than 500 members, as is the case with Canada Post CR workers, then it is considered to be a “female dominated group” if at least 55 per cent of its members are women. The wages received by members of this group must then be compared to the wages received by the members of a “male dominated” group.
1985: The Commission investigates
The Canadian Human Rights Commission started its investigation of the complaint in October 1985. From the beginning, Canada Post refused to collaborate and in 1988 the Commission had to threaten to take court action if the employer maintained its refusal to provide the information necessary for its investigation.
In 1992 the Commission released its final investigation report, and referred PSAC's complaint to the Human Rights Tribunal for determination.
1993: The Human Rights Tribunal hears the case
The case was referred to the Canadian Human Rights Tribunal in March 1992, but the Tribunal only began hearing evidence in February 1993. In total, there were 415 days of hearings, between 1993 and 2003, and the transcripts of the hearings exceeds 46,000 pages. There were also additional hearings and arguments presented in 2003 concerning the relevance of a Supreme Court decision in the Bell Canada pay equity case.
In 2004, the Chairman of the Tribunal resigned. And then the Tribunal accepted written submissions regarding the relevance of the Federal Court of Appeal decision in the Air Canada pay equity case. Finally, on October 7, 2005, the Canadian Human Rights Tribunal issued a 279 page decision upholding the PSAC's pay equity complaint.
2005: Canada Post challenges the Tribunal decision
Canada Post never accepted the Tribunal's decision and after 2005 the corporation used every possible legal avenue to have the Tribunal's decision overturned.
Over the years, Canada Post challenged the independence of the Human Rights Tribunal, contested the validity of the 1986 pay equity guidelines and argued that other reasons – not discrimination – explained the gender pay gap at Canada Post. The corporation challenged the “comparator group” that was used by PSAC to compare the wages of the female dominant group, questioned whether or not the two groups performed work of “equal value,” and picked at the methodology used to calculate the wage gap.
Canada Post successfully appealed the Tribunal's ruling before the Federal Court. PSAC then appealed the Federal Court decision before the Federal Court of Appeal. After losing at this level, PSAC brought the case before the Supreme Court of Canada.
All of these interventions meant that it took decades for a group of underpaid office workers to see justice.
2011: A Supreme victory!
The Supreme Court of Canada ruled in favour of PSAC on November 17, 2011.
After hearing arguments from PSAC, Canada Post and the Canadian Human Rights Commission, the Supreme Court upheld the original decision of the Human Rights Tribunal, reinstating the damages that had been awarded to PSAC members. In a rare move, the decision was released directly from the Supreme Court bench by Chief Justice Beverly McLaughlin, speaking on behalf of a unanimous court.
The Court ruled that PSAC's pay equity complaint against Canada Post was indeed founded, and it restored the original decision of the Human Rights Tribunal.
Ginette Chartrand was one of the women who filed the original case against Canada Post in 1983. Speaking from the Supreme Court, she reflected on the victory:
“I attended all of the hearings in the last few years. We believed in our case. But we did not expect a decision so quickly. I cried.”
Hélène Arbique shared similar sentiments.
“At first was hard to believe. Then the euphoria set in – we won after a 30 year battle.”
This was a hard won battle for women's equality, but it shouldn't have taken 30 years.
What the CHRT decision says
In its 2005 decision, the Human Rights Tribunal found that discrimination against the CR Group had indeed occurred between 1982 and 2002. In 2002 a new gender neutral and non-discriminatory job evaluation plan was introduced at Canada Post.
The Tribunal based its decision on the job evaluations that were done by a team of professionals that were hired by PSAC. However, these evaluations were considered to be on the low scale of what is “reasonably reliable,” because Canada Post refused to collaborate in providing information on different jobs and the tools that were used by the Commission during its investigation were inadequate. As a consequence, the Tribunal decided that only 50 per cent of the wage gap would be awarded to the members of the CR group. PSAC appealed this part of the Tribunal decision, but without success.
In November 2011, Patty Ducharme, PSAC's National Executive Vice-President, wrote to Canada Post CEO Deepak Chopra to initiate an immediate discussion about the implementation of the decision and communications with current and former employees. PSAC is hoping that Canada Post will do the right thing and work with the union to implement this decision as quickly as possible.
The Canadian Human Rights Tribunal retains jurisdiction to deal with issues that may arise in the implementation of its decision.
Who is eligible?
Up to 6,000 current and former employees of Canada Post who worked as CRs between 1982 and 2002 will be eligible for payments. The decision applies to current and former employees who worked in positions classified in the Clerical and Regulatory (CR) group at Canada Post at any time between August 24,1982 and June 2, 2002.
We will be expecting Canada Post to set up a system for current and former employees to contact them regarding payments.
Law reform needed
If anything, the Canada Post workers' victory at the Supreme Court reinforces the fact that the current complaints-based system does not work well for women.
Unfortunately, the Canada Post case is not an exception. Despite the fact that it has been 35 years since the Canadian Human Rights Act was adopted in 1977, women working full time still earn on average of 70.5 per cent of the male wage. The situation is even worse for women of colour, Aboriginal women and women with a disability.
The situation is so bad that the United Nations Committee against Discrimination Against Women has criticized Canada for it s track record on pay equity. It recommended that the federal government take concrete measures to improve the situation.
Wanted: a proactive pay equity law
In May 2004, after years of research and consultation, the Pay Equity Task Force concluded that the pay equity provisions in the Canadian Human Rights Act are simply not working. In a groundbreaking report entitled Pay Equity: A Fundamental Human Right, the Task Force recommended the adoption of a new, stand-alone pay equity law, that would require that employers proactively examine their compensation practices and develop pay equity plans in collaboration with unions.
These recommendations received full support from the labour movement, women's groups and human rights organizations. Unfortunately, in September 2006, the Conservative government announced that it would not implement the Task Force recommendations.
2009: Harper government attacks pay equity
Since it was elected, the Harper government has attacked federal public service worker'\s' right to pay equity.
In 2009, it adopted the Public Sector Equitable Compensation Act, completely stripping away federal public service workers' right to file a pay equity complaint before the Canadian Human Rights Tribunal. In addition, this new law prohibits PSAC from helping or encouraging our members to file an “equitable compensation” complaint before the Public Sector Labour Relations Board, subject to a $50,000 fine.
PSAC is challenging this discriminatory law before the courts, arguing that it infringes on women's constitutional equality rights and violates our members' rights to freedom of association.
For other federally regulated workers, the old S ection 11 provisions of the Canadian Human Rights Act continue to apply – and remain of very limited use to most working women.
Pay equity legislation works!
Ontario and Quebec each have extensive pay equity laws that apply to both the public and the private sectors. A review of the Quebec law shows that proactive pay equity legislation works:
In total, 28% of the women working in female dominated professions ( mostly administrative assistants, secretaries, service clerks and accounting assistants) received wage adjustments between 1997 and 2007.
These wage adjustments varied between 2% and 14,4%, with t he average adjustment in the private sector being 6.5%.
While significant for women, these wage adjustment cost less than 1.5% of the payroll in 70% of the cases.
In addition, pay equity has turned out to be good for the economy. Statistics Canada showed that in 2007, the pay equity settlement for the Quebec public sector had resulted in a five per cent increase in sales for business owners.
PSAC: still fighting for pay equity!
PSAC is proud of the determination and courage shown by our Canada Post members. Throughout the years, they never gave up the fight and in the end, we won a historical victory.
But the struggle is not over. The law needs to be changed, so that other women do not have to spend 28 years in court to get what they rightfully deserve!
PSAC is committed to keeping up the fight for a federal pay equity law. This is the only way to ensure that all workers in federally regulated workplaces can be assured that their right to equal pay for work of equal value is effectively respected.
Because pay equity is a fundamental human right!
Date Modified : 2012/02/07