PSAC Pay Equity Bulletin

June 21, 2005

Pay equity can hinge on the definition of one word

The PSAC is going to have an opportunity to present arguments to the Supreme Court of Canada on a critical issue involving the interpretation of the pay equity provisions of the Canadian Human Rights Act. The Air Canada case, which will be heard by the Court on October 19th, deals with the interpretation of the word “establishment” in section 11 of the Act and section 10 of the Equal Wages Guidelines, 1986. 

In order to compare work for pay equity purposes, the groups of employees being compared must be within the same establishment.  In 1998, a Tribunal hearing a complaint by the Canadian Union of Public Employees (Airline Division) on behalf of flight attendants working for Air Canada found that three bargaining units at Air Canada were separate establishments.  Therefore, the female-dominated flight attendant group could not compare the value of their work to that of the work performed by employees in the other male-dominated bargaining units. Left without a comparator group, the Tribunal decision effectively put an end to the complaint. 

The Federal Court of Appeal overturned the Tribunal’s decision in March 2004.  The employer, Air Canada, then sought leave to appeal against that decision to the Supreme Court of Canada.  The Supreme Court agreed to hear the appeal and PSAC is one of a number of groups who have now been given intervener status.

The Supreme Court’s decision will not have an impact on PSAC pay equity complaints that have already been resolved, such as the complaint involving the six female-dominated groups at Treasury Board.  However, one of the reasons advanced by the PSAC in support of its request for intervener status was that the Court’s ruling could have a direct impact on our outstanding cases, including our 22 year old complaint at Canada Post. In that case, Canada Post raised the issue of the meaning of establishment. The union is still waiting for the release of the Tribunal decision in that case.

Employers with deep pockets have continued to use the courts to delay or deny their pay equity obligations. All the more reason for a new, proactive pay equity law that would require that employers pay equal pay for work of equal value without the need for employees to file complaints.