Pay Equity - Separate employers, Bulletin no 4

February 2001

Pay equity remains a major issue for the PSAC. While Treasury Board is making the necessary payments to those members working directly for Treasury Board, pay equity remains an outstanding issue for the separate employer membership. So what is the PSAC doing about the issue? Are actions being taken to help these members? Read on for the latest information.

What is the difference between Public Service Staff Relations Act (PSSRA) members and Canada Labour Code (CLC) members?

Part I PSSRA members are employed by Treasury Board and are governed by the rules and regulations of the PSSRA.

Some Part II members were once employed by Treasury Board under Part I, but when their department devolved and became agencies, these agencies became separate employers. Other Part II members have always been separate. These members are still governed by the rules and regulations of the PSSRA.

Most Canada Labour Code members were once employed by Treasury Board, and when their department devolved and became an agency/corporation, they became separate employer. These members were governed by the PSSRA, but with their change in status came the change to the Canada Labour Code.

Treasury Board has taken the position that the Canadian Human Rights Tribunal pay equity decision order only affects those members for whom Treasury Board is the direct employer. Therefore, Treasury Board is in the process of paying those members in the CR, DA-CON, EU, HS, LS, and ST groups the pay equity settlements owed to them, as directed by the order. They have not extended this money to most separate employer members in these categories.

Separate employer members in the affected groups may have received some money, depending on when their agency/corporation became a separate employer. For example, if you were employed by Treasury Board starting in 1989 and your department became a separate employer in 1995, Treasury Board is responsible for paying you pay equity adjustments for the period 1989 to 1995.

Yes, it is true. Members at the Canadian Food Inspection Agency (CFIA), Parks Canada, and the Canada Customs and Revenue Agency (CCRA) received or will receive pay equity payments, as did members in the Administrative and Support group at the Library of Parliament. Why? For CFIA, Parks, and CCRA, Treasury Board agreed to make the payments without a court order or pay equity complaint. For the Library of Parliament members, a Memorandum of Understanding in their collective agreement (dating from 1990) required the Library to apply the pay equity formula adopted by Treasury Board for the CR and ST groups.

Wherever there is language in your collective agreement on pay equity, it is essential that members pressure their employers to adhere to this language. This is what happened at the Library of Parliament, and the PSAC is committed to enforcing the language in our collective agreements.

The PSAC has a strategy to address the issue of pay equity for separate employers. This strategy involves staff from many sections within the PSAC, working together, and includes:

• a PSAC pay equity working group;

• legal action against separate employers as described in Part II of the Public Service Staff Relations Act;
  

• continuing to pursue complaints under the Canadian Human Rights Act,

• local classification committees;

• enhanced communication and mobilization on pay equity issues.

The PSAC Pay Equity Working Group is comprised of PSAC staff members from Classification and Equal Pay, Legal Services, Negotiations, Membership Services, Representation, Communication & Political Action, Programs, and the Executive Office, as well as outside legal counsel who are working together to ensure that all angles of the pay equity issue are analyzed and that appropriate action is being taken on each part of the issue. Working in this cross-departmental forum ensures that ideas are shared and that strategies are developed which are inclusive and proactive.

The legal action against separate employers as described in Part II of the Public Service Staff Relations Act was launched in November, 2000, naming the following groups in the statement of claim:

• Communications Security Establishment (CSE)

• Canadian Security Intelligence Service (CSIS)

• Canadian Institutes of Health Research (CIHR – formerly known as the Medical Research Council)

• Office of the Auditor General (OAG)

• Office of the Superintendent of Financial Institutions (OSFI)

• Social Sciences and Humanities Research Council (SSHRC)

• Statistical Survey Operations (SSO)

The PSAC launched this legal challenge against these seven employers because the case is strong that these employers still, or for a portion of the retroactive period use(d) wage and benefit structures that are/were broadly consistent with those employed by Treasury Board. It is the union’s position that failure to change these structures will perpetuate pay discrimination and is therefore contrary to the Canadian Human Rights Act.

It is important to note that pay equity law is a new field, and that the PSAC is making legal precedents with each case that it undertakes. We won the PSSRA, Part I pay equity case, now we are challenging Part II separate employers. Each case builds on the previous one, and we are making new law with each legal challenge. Each victory helps to build our case for the next legal challenge so it is essential that the PSAC proceed in clear, cogent manner. We want to maximize our chances of victory for all separate employer members, so we have to keep the legal arguments clear and concise. Sometimes this means that we have to wait to win one action before we can launch the next.

The legal firm working on this challenge is the same one that won the Part I pay equity decision, Raven, Allen, Cameron and Ballantyne, of Ottawa.

If the PSAC is successful in achieving pay equity for Part II members at the above-mentioned federal agencies, then we would proceed with a court challenge for separate employer members under the Canada Labour Code. The PSAC has started with the Part II members because the case can more easily and clearly be made. Victory for this group would make the case for Canada Labour Code members that much stronger.

Pursuing pay equity complaints under the Canadian Human Rights Act (CHRA) remains a possibility. Correspondence has been sent to the Canadian Human Rights Commission to protect the interests of both PSSRA, Part II, and Canada Labour Code members in the event the court challenge is not successful. Any complaint(s) would be held in abeyance until the legal challenge has been heard.

The decision to try the court challenge route first was made because it should be quicker than formal pay equity complaints, although even a court challenge can be expected to take at least 2 years.

Older pay equity Human Rights complaints are being revisited with an eye to the new jurisprudence. Some members may remember a 1994 Library Science pay equity complaint, against the Museum of Nature and the National Gallery. While current pay equity complaints in the airline sector impact on this case, the outcome of our Part II legal challenge could also help to revive this case. Other PSAC separate employers have had pay equity complaints lodged against them under the CHRA ; again the precedents that we set with these cases will help all future pay equity cases.

Local classification committees have been formed at the National Gallery, the Museum of Civilization and the Museum of Nature. Comprised of local members, PSAC Classification and Equal Pay staff and employer representatives, these committees are working locally to establish classification systems that meet all human rights and pay equity guidelines. This is a huge job, for these committees have to develop gender neutral job evaluation systems, review the results of the evaluations, and design a classification system that meets the needs of these separate employer groups.

Enhancing the communication and mobilization of the membership around pay equity is essential to help all current and future pay equity complaints. The PSAC pay equity web site is being expanded to include information about actions taken on behalf of separate employers. Canada Labour Code separate employers in the NCR have formed a committee to deal with pay equity. Regional Councils are hosting conferences and seminars for their separate employer members on pay equity. Members have holding demonstrations and information pickets to publicize the issue of pay equity for separate employers. Political lobbying is ongoing.

More needs to be done and the PSAC is committed to making this happen ! There will be more separate employer pay equity news on the web site and Union Update. Check with your regional office to find out how CLC separate employers can mobilize around pay equity and stay in the information loop.

There is no easy answer to that question. The Part II legal challenge needs to be heard, and possibly the Human Rights complaint as well. While the PSAC wants separate employer members to have their pay equity money as soon as possible, much depends on the jurisprudence we set with the Part II case. If we rush other legal challenges into the courts without proper preparation and legal precedents then we run the risk of jeopardizing the outcome. The PSAC feels that by taking a cautious, methodical approach, the chances of a successful outcome are greater than if we flood the courts with pay equity challenges. While other separate employers may have used (or still be using) the same classification system that was found to be discriminatory, we need to proceed with care. Each success is essential to help pave the way for the next case, increasing our chances of achieving pay equity for all members in the affected groups.

• Get involved and get active on this issue.

• Form a committee with other separate employer members in your region to brainstorm ideas and actions.
  

• Work with your regional offices and regional councils to create regional actions. Act locally, regionally, and nationally.

Please be sure to involve the PSAC, so that all activities and actions can be communicated to members across the country. By working together, we can make pay equity for separate employer members happen!