ARCHIVED - Appendices to the Expenditure Review of Federal Public Sector Compensation Policy and Comparability

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Appendix H

Summary of Resolved Pay Equity Complaints Relating to the Core Public Service up to 2003

Since the enactment of the Canadian Human Rights Act (CHRA) in 1978, the Treasury Board has resolved many complaints in the federal Public Service.

Complaints have most often been resolved through negotiated settlements with individuals or bargaining agents.  The early complaints were between single groups and were really more about equal pay for equal or similar work.  For example, the Library Services group compared with the Historical Research Group.  This type of complaint lent itself to a "group to group" comparison that was relatively straightforward.  Later complaints have involved comparisons between several female and male predominant groups that covered a broader range of work and required more complex methodologies.

Resolved Complaints

Group Complaints

1. In February 1979, the female predominant Library Sciences (LS) group compared its work to that of the male predominant Historical Research (HR) group.  The complaint was resolved in December 1980, and employees were paid an annual pay equity adjustment until April 1997 when the amount was integrated into their salary.
2. In November 1979, three female predominant sub-groups (Food Services, Laundry Services, and Miscellaneous Personnel Services) of the General Services (GS) group compared their work to that of the four male predominant sub-groups (Building Services, Messengers, Protective and Custodial Services, and Stores Services) also of the GS group.  The sub-groups shared a common evaluation plan but were subject to different hourly wage rates.  Correction was based on a comparison of the complainants' average wage to the average wage paid to the comparison sub-groups for the period from November 1978 to 1980.  Negotiation of a collective agreement effective December 22, 1980, introduced a common pay plan and eliminated separate wage rates by sub-groups.
3. Within the Hospital Services (HS) group, the Registered Nursing Assistants (RNA) compared their work to that of the male predominant Nursing Orderlies.  It was alleged that the HS classification standard under-evaluated RNA positions.  The standard was revised in January 1983 and RNA positions were upgraded retroactive to December 12, 1979.
4. In June and July 1979, the Nutrition and Dietetics (ND) group (previously known as Home Economists) and the Occupational and Physical Therapy (OP) group compared their work to that of five male-predominant groups.  The complaints were modified in April 1982 to compare the work to that of the Forestry (FO) Group.  Treasury Board argued that a multiple comparator approach was justified and five groups were used as comparators.  In September 1985, the first bilateral agreement between union and management was reached and recommended to and accepted by the CHRC.  The interim settlement reached with the Professional Institute of the Public Service of Canada (PIPSC) was subject to revision based on the outcome of the JUMI study.
5. In September 1981, the Hospital Services (HS) group compared its work to that of the male predominant General Services (GS) group performing similar functions.  A settlement was negotiated between TB and PSAC and a HRT Consent Order was issued in July 1987.  In 1989, the HRT reconvened to exercise the jurisdiction retained concerning certain aspects of the dispute in the event that the implementation of the terms of reference did not resolve them.  As a result, in April 1991, the HRT ordered pay equity adjustments and the adoption and implementation of a gender-neutral classification standard.  In order to comply with the HRT Order, TB has being applying the GS standard since 1991.
6. When the PSAC filed a complaint in 1984 under sections 7, 10 and 11 of the CHRA on behalf of the Clerical and Regulatory (CR) group alleging discriminatory differences in the CR and Program Administration (PM) classification standards, the TB invited unions to participate in a Joint Union Management Initiative (JUMI) to make recommendations on a service-wide implementation of equal pay for work of equal value.  Based on the existing occupational groups, it was determined that there were nine female predominant groups (Clerical and Regulatory (CR), Data Processing (DA), Educational Support (EU), Hospital Services (HS), Library Science (LS), Secretarial, Stenographic and Typing (ST), Nursing (NU), Occupational and Physical Therapy (OP) and Home Economics (HE) now known as Nutrition and Dietetics (ND)) and 53 male predominant groups (neutral groups were excluded from the JUMI).

   Because of a disagreement over the existence of gender bias in job evaluations, the JUMI study was interrupted in the fall of 1989 before the parties could discuss or agree on a method to analyse the evaluation results.  When it became obvious that the Initiative would not reconvene, the TBS began analysing the evaluation data to determine to what extent the predominantly female groups were underpaid.  These analyses lead to an announcement on January 26, 1990, of a lump sum payment to employees of the CR, EU, ST and NU groups and ongoing annual salary adjustments to employees of the CR, EU and ST groups.

   Because PSAC and PIPSC were not satisfied with these payments, they submitted new or revised complaints and requested that they be referred to a Tribunal.  The fundamental issue before the Tribunal was related to section 11 of the CHRA.  In an initial decision in 1996, the Tribunal held that the data gathered during the JUMI provided a reasonable basis for assessing whether further payments were required.  Meanwhile the PIPSC complaints were resolved through negotiations in early 1995 and lead to a lump-sum payment and an ongoing equalization adjustment to employees of the HE/ND, OP and NU groups, which was integrated into base rates of pay effective April 1, 1994.

   The second Tribunal decision, which relates to the method to be used to estimate the existence and extent of the wage gap, was rendered in July 1998.  For the first time in pay equity history, the Tribunal ordered simple interest payments on the net amount of wages owing for each year of the retroactive period.

   In the last week of December 1998, the TBS and the PSAC signed new collective agreements that included special pay adjustments (SPA) for employees in the groups affected by the Tribunal's decision with the understanding that these SPA would be taken into account in any calculation of the pay equity wage gap that may be required by the final resolution of the complaints.

   An implementation agreement of the Tribunal's decision was negotiated by the parties in October 1999. The agreement provided, for employees of the CR, DA CON, EU, HS, LS and ST groups, retroactive adjustments to March 8, 1985, plus interest, and incorporation of adjustments into salary effective July 28, 1998.  On that date, the equal pay adjustments announced on January 26, 1990 for employees of the CR, ST and EU groups were also incorporated into salary.

   With respect to the sections 7 and 10 aspects of the 1984 PSAC complaint concerning the allegation of discriminatory differences in the CR and PM classification standards, in December 2003 the CHRC's investigator recommended that the Commission not intervene further in this case as the Employer has undertaken a reform of the two standards.

7. The NU group's original complaint, dated November 1987, was filed after employees of the NU group observed a narrowing of the difference between their salaries and those of Registered Nursing Assistant in the HS group as a result of the Consent Order issued by the Canadian Human Rights Tribunal on July 15, 1987.  In this complaint, the NU group compared its work to that of the Computer Services (CS) group.  Shortly after the complaint had been submitted, a Memorandum of Understanding was negotiated within the collective agreement and as a result employees of the NU group were paid an annual salary adjustment of $5,500.  Furthermore, in January 1990 (following the JUMI study), additional payments were also made retroactive to 1985.  As previously mentioned, the NU complaint was revised in 1990 and resolved through a negotiated settlement in the course of the Human Rights Tribunal hearing.
8. In 1990, Interviewers and Senior Interviewers in Statistics Canada claimed they were employees of Treasury Board and entitled to the equal pay adjustments given to CRs as per the January 26, 1990 announcement.  Interviewers had been treated as contractual employees who received an hourly salary established on the basis of CR wages.  The complaint was resolved in 1991 with Treasury Board accepting responsibility as the employer of Interviewers until November 1987, when the Minister responsible for Statistics Canada was designated a "separate employer."  Interviewers received equal pay adjustments as CRs for the period from 1985 to 1987.
9. Following the January 26, 1990 announcement of equal pay adjustments, 64 women who had been on maternity leave during the period of April 1, 1985 to March 31, 1990, submitted complaints because their maternity allowances had not been increased.  This situation resulted from the lump-sum portion of the equal pay adjustments being considered "salary" for superannuation purposes only.  The 1995 settlement approved by the CHRC recognized a lump sum payment per period of maternity leave taken between April 1, 1985 and March 31, 1990.  Since then, pay equity settlements have considered employees on maternity leave as having been at work for the purposes of the pay equity adjustment.
10. In June 1990, the Translator (TR) group compared its work to that of the Economics, Sociology and Statistics (ES) group, and then modified its complaint to compare itself to all male predominant groups.  For a time the TR and Personnel Administration (PE) complaints were addressed simultaneously and a joint committee composed of representatives from the TR union, the PE group, the CHRC and the Treasury Board Secretariat was established.  The joint committee agreed to examine both complainant groups as well as the following seven male predominant groups: Commerce (CO), Computer Systems (CS), Engineering and Scientific Support (EG), Economics, Sociology and Statistics (ES), Financial Administration (FI), Purchasing and Supply (PG) and Welfare Programmes (WP).  A settlement was negotiated in December 2003 and the CHRC approved the terms of the settlement in February 2004.  Employees received retroactive lump sum payments to April 1990 and an amount was integrated into their salary effective April 19, 2003.
11. In 1991, several employees of the Personnel Administration (PE) group compared their work to that of various male predominant groups.  Being unrepresented, the PEs formed the PE National Assembly to represent them for purposes of the complaint. The complaint was settled in November 1999 after a study comparing seven male predominant groups (those agreed to by the above-mentioned joint committee).  Employees received lump sum payments retroactive to 1991 and an amount was integrated into their salary effective October 1, 1999.
12. In December 1992, the National Indian and Inuit Community Health Representatives Organisation (NIICHRO) representing Community Health Representatives (CHRs) working in First Nations communities alleged that CHRs were employed by the federal government and claimed that they were entitled to the pay equity adjustments that federal CHRs had received.  The parties agreed to mediation of the complaint and arrived at a settlement in April 2000. Under the terms of the settlement, NIICHRO acknowledged for purposes of the complaint that Her Majesty was not, between September 1980 and April 2000, the employer of any band-employed CHR. The Crown agreed to transfer a Settlement Amount to a Trust Fund to be held and administered by a board of trustees for equitable distribution to band-employed CHRs. The CHRC approved the terms of the settlement in May and the Federal Court ordered that the settlement be made an order of the Court in June 2000.  The Trustees expect final payments to be made to CHRs in 2005.
13. On August 31, 1995, Clinical Social Workers at levels 1 to 3 of the Social Welfare sub-group of the Social Work (SW-SCW) group compared their work to that of predominantly male program/policy workers employed at levels 3 to 5 of the same group and sub-group.  A settlement was reached in June 1996 and the CHRC approved the terms of the settlement in August 1996. The Clinical Social Workers (a group of 21 employees) received lump-sum payments effective December 12, 1994 and an ongoing equalization adjustment, which was integrated into base rates of pay on October 1, 2000.

Individual Complaints

Individual complaints have tended to be resolved mostly through reclassifications and, at times, other forms of compensation.  The number of individual complaints lodged under s. 11 of the Act has significantly decreased since the 1990s.

Outstanding Complaints

As of March 31, 2003, 12 complaints were outstanding, 9 of which related to allegations that derive from the definition of "employer / establishment".  The majority of these complaints alleged that TB and/or separate employers discriminated against employees of separate employers by refusing to grant them the pay equity adjustments negotiated for employees of the TB (1-1- universe).^[1]

Since March 31, 2003, four more complaints have been lodged.^[2]

Footnotes

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^[1] Since November 2003, the CHRC has dismissed or decided not to deal with 11 complaints, 8 of which related to allegations that derive from the definition of "employer / establishment."  To date, one decision has been referred to Federal Court for judicial review.

^[2] Of the 5 complaints currently outstanding, 2 deal with the definition of "employer / establishment."

 

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