PSAC Pay Equity Bulletin

Federal Court issues decision on Section 99 reference

In June 2001, hearings were held on the PSAC’s section 99 reference to the Public Service Staff Relations Board (PSSRB). The PSAC asked the Board to declare that the federal pay equity adjustments were pay for all purposes, except for two specific areas covered in the pay equity agreement. The union was asking for this declaration so that all salary-related benefits found in the collective agreement (such as salary protection, cash-out of annual leave, education leave, etc.) would be adjusted as a result of the pay equity adjustments. (More information about the case can be found in PSAC Pay Equity Bulletin 46.) 

The PSSRB Chairperson dismissed the PSAC’s section 99 reference and ruled that unless PSAC and Treasury Board could come to an agreement on this issue, the matter should go back to the Federal Court or to the Human Rights Tribunal. Mediation did not produce a resolution and the union decided to pursue the matter in the Federal Court.   

On November 13, a panel of three Justices in the Federal Court of Appeal heard the PSAC’s application for judicial review against the PSSRB decision. The Court issued its ruling the same day and ruled against the union. The Court agreed with the Public Service Staff Relations Board that the Tribunal Consent Order permitted Treasury Board’s interpretation of the Consent Order as not requiring that all salary related benefits be recalculated. 

The only avenue for recourse against the decision of the Federal Court of Appeal is the Supreme Court of Canada. However, the Supreme Court must initially grant ‘leave’ to the PSAC to bring an appeal. The Supreme Court only grants leave to appeal in a small fraction of civil cases and generally only those appeals that raise legal issues with a national impact.

The union has carefully reviewed the Court of Appeal’s decision and determined that it is highly unlikely that the Supreme Court will grant leave to appeal in this case. As a result, the case will not be pursued any further.

The Federal Court of Appeal’s decision, while disappointing, has resulted in some positive statements in favour of pay equity and the issue of pay for all purposes. The Court of Appeal confirmed that a Tribunal appointed under the Canadian Human Rights Act has the authority to order that pay equity adjustments be pay for all purposes. While the Tribunal Consent Order did not do so in this case, the Court’s decision has positive implications for our complaint against Canada Post (which is still before a Tribunal) as well as for other unions pursuing pay equity at the Tribunal level.

The PSAC is not moving away from its support of the principle of pay for all purposes. The union will also be raising this issue in its final brief to the Pay Equity Task Force. This year, the Task Force has been receiving submissions from unions, employers, women’s groups and individuals with proposals for new pay equity legislation.  PSAC is advocating proactive legislation with a pay for all purposes approach.  The union’s brief will be posted on the web site later in December.

Pay equity for part-time employees

The union is still actively pursuing enforcement of the Tribunal Consent Order. While the ‘pay for all purposes’ / recalculation of all salary-related benefits issue has concluded, the issue of pay equity adjustments for part-time employees based on actual hours worked versus their scheduled hours of work is still active.

In early 2002, PSAC representatives met with Treasury Board officials after the union advised them that they were proceeding to Court with this issue.  Although Treasury Board promised to look into the matter, there has been no resolution.  We have continued to meet, but will be proceeding to litigation if the matter is not resolved in the near future.