CONTENTS
Tuesday 2 February 1993
Pay Equity Amendment Act, 1993, Bill 102
Public Service Statute Law Amendment Act, 1993, Bill 169
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)
Vice-Chair / Vice-Président: Morrow, Mark (Wentworth East/-Est ND)
*Akande, Zanana L. (St Andrew-St Patrick ND)
Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
Harnick, Charles (Willowdale PC)
Mahoney, Steven W. (Mississauga West/-Ouest L)
*Malkowski, Gary (York East/-Est ND)
Runciman, Robert W. (Leeds-Grenville PC)
Wessenger, Paul (Simcoe Centre ND)
Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Arnott, Ted (Wellington PC) for Mr Runciman
Caplan, Elinor (Oriole L) for Mr Chiarelli
Coppen, Shirley, (Niagara South/-Sud ND) for Ms Akande
Jackson, Cameron (Burlington South/-Sud PC) for Mr Harnick
Klopp, Paul (Huron ND) for Mr Morrow
Mathyssen, Irene (Middlesex ND) for Ms Carter
Murdock, Sharon (Sudbury ND) for Mr Wessenger
Poole, Dianne (Eglinton L) for Mr Mahoney
Wiseman, Jim (Durham West/-Ouest ND) for Mr Winninger
Also taking part / Autres participants et participantes:
Catherine Evans, policy advisor, rights and legislation, Ministry of Labour
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Hopkins, Laura, legislative counsel
The committee met at 1023 in room 228.
PAY EQUITY AMENDMENT ACT, 1993 / LOI
DE 1993 MODIFIANT LA LOI SUR L'ÉQUITÉ SALARIALE PUBLIC
SERVICE
STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT DES LOIS EN CE QUI
CONCERNE LA FONCTION PUBLIQUE
Consideration of Bill 102, An Act to amend the Pay Equity Act / Loi modifiant la Loi sur l'équité salariale, and Bill 169, An Act to amend the Public Service Act and the Crown Employees Collective Bargaining Act / Loi modifiant la Loi sur la fonction publique et la Loi sur la négociation collective des employés de la Couronne.
The Chair (Mr Mike Cooper): I call this meeting of the standing committee on administration of justice to order. We're continuing with our discussion on Bill 102, An Act to amend the Pay Equity Act, and Bill 169, An Act to amend the Public Service Act and the Crown Employees Collective Bargaining Act.
Good morning, everybody. First, are there any questions, comments or amendments? Ms Poole.
Ms Dianne Poole (Eglinton): The Liberal caucus has tabled a number of amendments with the clerk of the committee. Legislative counsel has kindly prepared three replacement amendments for subsections 21.10(1), (2) and (4) of the bill. These three replacement motions actually just separate the one replacement motion from yesterday. We have one further new amendment; the clerk is making copies and will be distributing it. It's an amendment to subsection 16(8) of the bill. I think the clerk has a copy of all the relevant material.
The Chair: Thank you, Ms Poole. Mr Arnott.
Mr Ted Arnott (Wellington): Our caucus has one amendment we would be moving today.
The Chair: Thank you. Ms Murdock.
Ms Sharon Murdock (Sudbury): I believe the clerk has all of our amendments and replacement amendments.
The Chair: Opening statements: Ms Murdock, do you have an opening statement?
Ms Murdock: No. The minister spoke eloquently on opening day.
The Chair: Thank you very much. Ms Poole.
Ms Poole: Mr Chair, as we go into the pay equity clause by clause, there are certainly a number of concerns our caucus has.
When this legislation was introduced, it purported to be a major advancement for women. It purported to introduce two new methods of pay equity comparison which would advantage women and be a major step forward. However, on close examination of the legislation, it becomes very clear that there are a number of areas in which this legislation is in fact a step backwards for women. It is legislation which denies and takes away rights which women have under the existing legislation passed by the Liberal government in 1987. There are several areas in which this is true.
The first is the delay in achievement in the public sector. From January 1, 1995, as established in the Pay Equity Act, it has been delayed to January 1, 1998, so women in the public sector will have their achievement of pay equity delayed by three years.
The second major area is the area of maintenance. Very clearly in the Pay Equity Act, 1987, it's set out that once pay equity is achieved, it must be maintained. I think this makes all sorts of good sense; otherwise, pay equity would just be a joke. The employer could achieve it and then very shortly thereafter start to dismantle it. So this protection of maintaining the pay equity plan and the integrity of the pay equity plan was extremely important. What the government has done is to introduce a provision in this legislation that would allow it to put forward regulations to limit the maintenance provision.
This is clearly unacceptable. In both the instances I've just outlined, presenter after presenter came to this committee; these were presenters who were very favourably disposed towards the current NDP government, yet they reacted with shock and amazement that the NDP would bring in these provisions. One must ask the reason why.
The government has claimed that it is a matter of fiscal responsibility, that because of the extraordinary deficit this government has incurred, it is necessary to take cost-saving steps. But I submit to this committee that what the government has done is to rob Peter to pay Paul; or in this case, maybe they've robbed Petra to pay Paula. In order to pay for pay equity in the broader public sector by the proxy method, this government has decided that it is going to take away from the public sector women who have already achieved rights under pay equity. I, quite frankly, do not think that's a tradeoff that women are prepared to accept.
The third major area in which the Liberal caucus has concern with this legislation is the area of the proxy method. This was introduced to bring relief to some 80,000 women in female-dominated sectors where they currently have no recourse under the legislation to achieve pay equity. In fact, these are women who could not take advantage of the proportional method because it does not apply to their sector as well. So we are in sympathy for the need to do something for the women in female-dominated sectors, but we disagree with the way in which the government has gone about it.
When the Pay Equity Act, 1987, was introduced and passed, the Liberal government made a commitment to look at other alternatives and other ways in which women not covered by the act could be covered by the act. One of the ways suggested was proportional; the other was proxy.
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In March 1990, the Liberal government announced that it intended to proceed with proxy, which allowed indirect comparisons between female and male jobs. This left the women who were in solely female-dominated sectors without a recourse. So the suggestion was that it be done through a series of wage enhancements so that these female ghettos would have relief.
But it would be done in a way that, first of all, was not complex. Certainly, presenter after presenter came before this committee and said the proxy method as proposed by the government is extremely complex, hard to understand and confusing.
Second, it would save the cost of implementing this plan. The government has made it clear that it has not targeted special funds that would pay the cost of implementing the proxy method.
Third, you get to the cost of the proxy method itself. It's completely uncontrollable and is not a fiscally proper way for a government to act.
What the women of this province who are in female-dominated sectors need is some assurance from the government that it would bring in measures for these wage enhancements. It may take a number of years, be implemented year after year, but the timetables would be set out, the sectors would be identified, and these women would have the relief they require, without this incredible bureaucracy which the proxy method's going to engender.
So it is in these three areas in particular that we have concerns. We also have concerns with the fact that we are getting mixed messages about the costing of this scheme, because any government that does not consider the bottom-line cost in this day and age would be totally irresponsible. We have to look at that. The Ministry of Labour, to be fair, yesterday did answer a number of questions concerning cost, but the bottom line is that I don't think the government really did a thorough analysis of what the bottom line was going to be. I think there are going to be a number of unexplained and unexpected surprises down the road which may end up by this government or a subsequent government having to say, "This is totally out of control."
I was somewhat hopeful that the government would have addressed some of these concerns. I can't see how they can hold their head up high and say they are acting on behalf of women when they bring in this type of legislation. There was a very mixed reaction from many of the presenters.
I was appalled that the only amendments put forward by the government were in the nature of housekeeping, that it really did not take a second look at what it was doing and the ramifications, notwithstanding the fact that every single presenter who came to this committee -- as I said before, many of whom were very supportive of this particular government -- was harshly critical of a number of the aspects of the legislation which I've outlined today.
So I'm hoping that when the amendments are moved by the Liberal caucus in committee today in clause-by-clause, the government may reconsider its position. If it doesn't, then it has really betrayed the women in this province and taken us a step backward, by denying women rights they already had under existing legislation.
The Chair: Mr Arnott, opening statements?
Mr Arnott: The only opening statement I have is with respect to an explanation of our amendments, so I'll do it at that time.
The Chair: Thank you very much. We'll proceed now to clause-by-clause on Bill 102.
Shall sections 1 to 5 carry? Any questions?
Ms Poole: I have a question relating to subsection 1(3), which describes the proportional value method and the proxy method of comparison. One of the areas in which I was very surprised that the government did not introduce amendments related to the language in the proxy comparison method, which I think universally was criticized during the presentations last week as being very confusing and complex and not describing what they appropriately felt the method should describe. I was wondering if we could have some explanation from the parliamentary assistant as to why they rejected the arguments put forward by the presenters.
Ms Murdock: In terms of the language that was used in subsection 1(3), we felt basically that it wasn't unanimous and there was some discussion of the fact that over the past two years -- this has been discussed in all the consultations -- the people who implement it significantly are used to those words and that it was going to cause an awful lot more confusion to change it to the language that some of the groups had suggested.
Ms Poole: I would just correct one thing. I don't think it was some of the groups; I think it was universal. I don't know of one group that said it agreed with the government's language.
Ms Murdock: Correct me if I'm wrong, but you're talking about using, instead of the word "proxy," "cross-establishment" and so on. CUPE didn't, as I recall, and some groups didn't mention it at all; they didn't refer to it. I admit there were a number of groups that had a particular interest in it that did say they thought it should be changed, but it would have involved re-explaining to an awful lot of groups that are already implementing some of these plans, some of which have already gotten into proportional value, and changing that whole language and getting that whole thing changed. We felt it was confusing enough as it is without making it even more confusing. That was our rationale.
Ms Poole: Mr Chair, just as a correction: The parliamentary assistant mentioned the fact that CUPE --
Ms Murdock: I think it was CUPE.
Ms Poole: -- did not propose changing the language. I have the CUPE brief in front of me. On page 2 it says very clearly, "We propose replacing the term `proxy method' with `cross-establishment method'" etc.
Ms Murdock: You're right. I was wrong. It wasn't CUPE; it was ONA. I've just been advised by staff that it was ONA.
Ms Poole: ONA was the presenter that didn't like any part of this legislation and wanted us to vote against it. In fact, I asked the question, should we support this legislation with the shortfalls you have described? ONA said very clearly that this was regressive legislation and should be withdrawn.
Ms Murdock: I thought we were speaking in relation to language.
Ms Poole: We were, but ONA in no way said it supported the language.
Mr Cameron Jackson (Burlington South): Part of that language you didn't understand.
Mrs Elinor Caplan (Oriole): I find the answers from the parliamentary assistant absolutely shocking. I've been sitting in this committee over a number of weeks. It's clear that the government, and the parliamentary assistant in particular, did not listen to any of the presentations. Over and over again, we were asked for simplification of language. It was an ongoing and common request that everyone came in with. The response that the reason the government didn't do it is because a union -- some, it's not quite sure which one -- didn't ask for it or didn't like it, and trying to justify its position by suggesting that some of the presenters who said, "Scrap the whole bill," didn't ask for it, is absolutely a shocking omission of (1) not listening and (2) suggesting that these hearings entirely were a sham.
On behalf of the people who came forward and presented excellent briefs, I really want to say how disappointed I am that the government obviously didn't listen to them at all. I'm shocked.
Ms Murdock: The opposition may not like my answers, but to accuse me of not having listened is, I think, reprehensible because the fact is that I have listened. We don't agree with that change. In fact, on the ONA submission, if you will recall, and you can check Hansard, I specifically asked them whether they did or did not feel that the language should be changed. They specifically said --
Mrs Caplan: They said the bill should be scrapped.
Ms Murdock: Just a moment, please, Mrs Caplan. They specifically said that the language in the bill was common usage and that they didn't feel it should be changed, that changing it would cause confusion. After working on this for two years, our belief is that this is exactly the case, and we're not about to change it to cause even more confusion.
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Mrs Caplan: I would point out to the parliamentary assistant that if you're going to listen to ONA, you should listen to everything it said. They said: "Don't do what you're doing. Withdraw this bill." They didn't alone say, "Don't change the language." They said: "Don't change anything. What's in place is working just fine. This legislation is going to be a big step backwards for women." They said, "This legislation is regressive." They said, "This legislation should not go forward." It was within that context that they said, "Don't change the language." To put those kinds of words in ONA's mouth totally misrepresents what you were told by the Ontario Nurses' Association.
Ms Murdock: We're speaking to subsection 1(3), I believe, and so I'm directing my comments directly to that. I am not getting into the entire concept of the ONA presentation, which would mean, if we listen to ONA, that all of those women out there who would be affected under proportional value and under proxy would not get any pay equity payment at all. If that's what ONA thinks is fair, then so be it.
The Chair: Further comments?
Mr Alvin Curling (Scarborough North): Am I getting from the parliamentary assistant that now, because ONA has criticized the bill in a very constructive way, she's saying, "Tough on you, ONA, because there are other women to be looked after"? I just want a clarification on that, because I'm hearing that ONA had made a criticism.
My colleague also pointed out to the parliamentary assistant that this is something that should be listened to rather carefully. It's a democratic process. This party has prided itself on democratic process. Listen to people as they make their presentations. I just want to understand from the parliamentary assistant, will you be taking any advice from the presentation ONA has made here? Will you be responding to any sector of their presentation?
Ms Murdock: I obviously was listening to them under subsection 1(3). In regard to throwing out all the pay equity? No, I'm not willing to do that.
Mrs Caplan: That's not what they said. That is gross misrepresentation.
The Chair: Further comments? Seeing no further comments or questions, all those in favour of section --
Ms Poole: Mr Chair, was there any agreement that we would deal with five sections at a time?
The Chair: Generally, when there are no amendments to a section, we go right through the whole list until we come to an amendment on a section. Would you like to do a section at a time? I'm in the hands of the committee.
Ms Murdock: It doesn't matter.
Ms Poole: I just find that when we're going through it so quickly, it's difficult to follow when you're trying to look at five sections and ask questions on five sections at one time.
The Chair: All right, then we'll do them one at a time.
Shall section 1 carry? All those in favour? Opposed? Carried.
Shall section 2 carry? Carried.
Shall section 3 carry? All those in favour? Opposed? Carried.
Shall section 4 carry? Carried.
Shall section 5 carry? Carried.
On section 6, there is a Liberal motion.
Ms Poole: We have an amendment to this section which refers to the fact that the government no longer wishes to have its plans maintained.
I move that section 6 of the bill be struck out.
The Chair: Ruling from the Chair: This motion is out of order. What you would have to do is vote against the section. You can't move to strike out a section. You'd have to vote against the whole section. Comments?
Ms Poole: I would like an explanation from the parliamentary assistant as to why the government chose to weaken the rights of women under the Pay Equity Act, 1987, by limiting the maintenance provision, because it is very clear that section 6 will allow the government to prescribe regulations which would limit the maintenance of pay equity. Could I please have an explanation of why the government would take away the rights of women and do this?
Ms Murdock: I'll respond to why we've included section 6, and that is basically that many of the establishments have now gone beyond the stage of achieving pay equity and are dealing with maintenance now. The act provides no guidance to the workplace parties for addressing maintenance situations that are out of the ordinary. We're not taking away, I don't think, from the section 7 requirement to maintain pay equity. But it means that a wage gap will not be allowed to re-emerge between female and male job classes.
I think that in the vast majority of cases the maintenance is not complicated or controversial and no legislative assistance is required to guide the workplace parties for the appropriate action they would have to take. I think there are unusual situations, or there potentially could be unusual situations that would require some kind of guidance situation, and the regulation-making authority is intended to do that. It could be used, for example, at some point to define payment periods if an employer were to find that he or she couldn't make a final payment in a final year.
Ms Poole: Let's be very clear what this section says. Section 6 of the bill says that the government may prescribe limitations, so I don't know how the parliamentary assistant can say this isn't taking away rights that women had under the existing act.
Ms Murdock: I guess I'd have to ask you in what circumstances you would see it being used.
Mrs Caplan: You're the government.
Ms Poole: Excuse me.
Interjections.
The Chair: Order.
Ms Poole: Mr Chair, through you, I would say to the parliamentary assistant that for her to be asking members of the opposition, who have absolutely no control over this legislation, that question is quite outrageous. The problem is --
Ms Murdock: There is no intention to take --
Ms Poole: The problem is that we do not know under what circumstances you would use it. The women's groups that came before us the week before last do not know in what circumstances the government would use it. That is the whole point. With regulations it can be an order in council like that. It can damage the integrity of a plan. It can damage the rights of women, and they have no recourse.
Ms Murdock: You're operating on the supposition that any government, regardless of which government it is, would be just indiscriminately making regulations whenever it felt like it. We've explained this, and I think the Minister explained it, as did the deputy, and I'll explain it again. The intent, of course, is only to use it in unusual circumstances. There is no intent to limit pay equity for women who deserve it. There will be unusual circumstances, but we don't know what they will be, necessarily, and this covers that eventuality.
Mr Jackson: On that point, then, perhaps it's helpful if we ask someone from legal counsel to give an example which may have given rise to them recommending to the government -- I respect the parliamentary assistant's response but it's limited and it's unsatisfactory. I know certain examples. I know that women who work in the day care field have had a government announce they were eligible and then withdraw their eligibility from pay equity. So there are examples which give cause to the concern raised by Ms Poole. This would not be in the legislation if there weren't some circumstance which legal counsel has advised may give rise to its need. Could legal counsel respond? Although a political answer was invited, a legal response is helpful.
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Ms Murdock: Catherine Evans, legal counsel with the Ministry of Labour.
Ms Catherine Evans: I'm a policy adviser, in fact, but also --
Ms Murdock: But also a lawyer.
Ms Evans: I'm a lawyer, yes.
There have been maintenance awards in a variety of plans. Maintenance in the act is something which is accrued immediately. The act generally provides for the achievement of pay equity on a phased-in basis, 1% of payroll a year, or until the deadline arises. Maintenance has no such phase-in. In a situation where there's potentially a large maintenance award, this would all become due in one year. In such a situation -- which is an unusual situation, to be sure -- it may be more appropriate for a limit to be placed on that maintenance right, such that it also becomes phased in as a matter of 1% a year, for example, if it is that large. It's a situation designed to prevent economic hardship.
Mr Jackson: And supplementary to that, this would be done in regulation at some future point, but this is the enabling clause?
Ms Evans: Yes.
Mr Jackson: Great. I'm satisfied with that answer.
Mrs Caplan: Now that I understand it, what this section is about is building into the act an incentive not to maintain pay equity. As I understand it, there's a requirement that pay equity be achieved and maintained; the maintenance awards would not come unless you in fact had not maintained pay equity. Then, rather than having someone who had allowed the plan to deteriorate -- to right that, what you're going to do is build in an incentive that would extend the time for pay equity to be achieved again.
Ms Evans: This provision would not affect the normal course of maintenance which arises through annual wage increases; if everyone in the establishment were given a wage increase of $500 or 4% or whatever it is, this provision is not designed to affect that at all. That would continue, and an employer is obligated to maintain pay equity in the normal course of events.
This deals with unusual situations. Where an unusual increase is given to a particular male comparator, for example, that would have an effect out of the ordinary course of wage increases on female comparator jobs, it could result in very large increases.
Mrs Caplan: I don't see that that's what this says, because it refers to maintenance increases. As I understand it, a plan is developed and the payouts are required over a phase-in of 1% per year. After that's been done, there's an obligation to maintain. I don't understand, from your explanation -- give me an example of what sort of unusual maintenance award would come at that point in time. Certainly, a maintenance award comes after there has been a deterioration or a backsliding from the achievement of pay equity.
Ms Evans: If you have a situation in an establishment where there's more than one pay equity plan, which occurs where there is more than one bargaining unit, for example, if you have comparisons across the bargaining unit, which is not unusual, you can have a situation where one female job class in a bargaining unit of, say, 15 female job classes, has a comparison to a male job class in a different bargaining unit.
If the collective agreement expiry dates are different, such that the male job class comparator has an earlier expiry date and so gains a wage increase perhaps in advance of when the normal wage increases would arise for the female bargaining unit, the Pay Equity Act would operate to move that increase from the male job class immediately on to the female job class. The female job class then would leap ahead, so to speak, of her colleagues'. It may be more appropriate for that increase to be deferred until the general collective agreement is negotiated for the female job classes, at which time that maintenance adjustment would therefore accrue to the female job class. That's one situation.
Mrs Caplan: As women understand this, I think they will be surprised that this was included, because I think that those who understand it will see it as we do, which is the beginning of the erosion of the commitment to pay equity. That this was begun by an NDP government is appalling.
Ms Poole: I'm not sure the parliamentary assistant understands the weight of this particular section. This section doesn't say "in certain circumstances" and outline certain circumstances. It is very broad, and government could use it for its own purposes.
What the parliamentary assistant is asking us to do is "Trust us." Well, I'm sorry. You ask the children's aid society workers, after section 2 is in this act, if they trust government. I'm sorry. You ask all those women in the public sector who were promised that they would have pay equity achieved by January 1, 1995, if, when they look at this legislation, they trust government. The fact is, people do not trust government, and every day I see more and more reasons why people feel that way.
You're asking the women of this province to say, "Oh, yes, you've assured us that it will only be in unusual circumstances." Are you telling me you're going to bring a regulation for every unusual circumstance? How can you possibly give the assurance that if there is a plan achieved in, for instance, the public sector, which the government has to pay for, and the government doesn't like the maintenance award because it's too high and it can't fit it in its fiscal plans, there will be a regulation regarding that?
You can't assure it, because you have given immense power through section 6 to the regulations; regulations which will never be debated before committee, regulations which will never go into the Legislature, regulations which can in the dead of night -- except I'm sure the government doesn't work in the dead of night -- be changed at the stroke of a pen, without any recourse.
I'm sorry. I don't care if there are unusual circumstances. If there are, then you draft legislation to cover the unusual circumstances. You do not put in a general provision which could be very damaging to women in this province who are trying to achieve and maintain pay equity.
We will, as a Liberal caucus, vote against it. Mr Chair, I'm asking for a recorded vote on this, because I want to see each of those government members vote against the maintenance of pay equity. That's what they're doing with this section.
Mrs Caplan: That's right. This is the beginning of the end.
The Chair: Thank you. When we get to the vote, it will be recorded.
Mr Jackson: Perhaps it's the unfortunate circumstance of Ms Poole never having made cabinet, but her two colleagues who accompany her today have. Clearly, by the debate I've just heard -- which it was: a debate -- there's some frustration shared by Ms Poole but not by her colleagues, since they fully understand the ramifications of the relationship between regulations and enabling legislation.
Mr Curling: Don't speak for me.
Ms Poole: Are you speaking out of frustration because you didn't make cabinet, Mr Jackson?
Mr Jackson: I'm a lot more patient than you are obviously showing at the moment. But I would like to call the question, because this is degenerating into a debate, and it's an unnecessary debate.
Ms Poole: Mr Jackson, what an appalling thing to happen in clause-by-clause.
Mr Jackson: Fair ball. You've made your point, Ms Poole. How long did you want to flog it?
The Chair: Are you moving closure, Mr Jackson?
Mr Jackson: Yes. I tried yesterday; I'm going to try today. Call the question.
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The Chair: All in favour of the closure motion? Carried.
On the question, on section 6, shall section 6 carry? Recorded vote. All in favour?
Ayes
Akande, Klopp, Malkowski, Mathyssen, Murdock (Sudbury), Wiseman.
The Chair: Opposed?
Nays
Caplan, Curling, Jackson, Poole.
The Chair: Motion carried. On section 7, do we have a PC motion?
Mr Jackson: I move that section 7 of the bill be amended by adding the following subsection before subsection (1):
"(0.1) Subclauses 13(2)(e)(iv) and (v) of the act are repealed and the following substituted:
"(iv) the 1st day of January, 1998, in respect of employers in the private sector who have at least 10 but fewer than 100 employees on the effective date and who have posted a notice under section 20."
The Chair: Mr Jackson, this motion is out of order because subsection 13(2) is not open. Do you have arguments why it should be in order?
Mr Arnott: I would move unanimous consent that we at least be allowed to make our presentation on this amendment.
The Chair: Do we have unanimous consent? No, we don't.
A Liberal motion? As in the previous Liberal motion, this one is out of order, to strike out a whole section. What you'd have to do is vote against the section. On section 7, Ms Poole?
Ms Poole: I have a question, Mr Chair. Do I not have to introduce the amendment before you rule it out of order?
The Chair: You should move it first. You're correct.
Ms Poole: I'm sorry, but we have to take our small victories where we get them. Section 7 of the bill is the one relating to the delay of pay equity by three years in the public sector.
I move that section 7 of the bill be struck out.
The Chair: As I said previously, this would be out of order. What you have to do is vote against the whole section. You can't strike out a section. Comments on section 7? Ms Poole.
Ms Poole: This is the section which changes the legislation passed in 1987, the Pay Equity Act, which set out a timetable by which pay equity was to be achieved in the public sector and in the private sector. It also set out provisions for the posting of pay equity plans.
Subsection 13(7) of the Pay Equity Act specifically stated that the timetable which was to be adhered to was in the regulations and in the act as the first day of January 1995. The NDP government has said that because of the fiscal situation it thinks that women should have to bear this on their backs, so it will therefore delay pay equity by three years in the public sector.
If this were consistent with what this government did in other areas, perhaps one could somewhat buy an argument that this is a fiscally responsible thing to do. That's not what they did and that's not why they did it. They delayed the achievement of pay equity in the public sector for one reason only: so they could help pay for their promise of proxy to the broader public sector. They've stolen from one group of women in order to make the political bang of giving to another group of women.
I'm sorry. It is totally unacceptable that women be used as tradeoffs and as pawns, and there are many women in this province -- and we heard presentation after presentation -- who used the words "betrayal" and "shocking" when it came to this provision.
This is the reason that people do not trust government. Government made a commitment, and its commitment was such that it's saying, "The private sector has to go along and it has to adhere to the plan set out in pay equity, but the public sector, we have to pay the shot for that, so we're going to arbitrarily change the rules." That's what section 7 does, and I just think it is thoroughly reprehensible that this government can try to hold up its head and vote in favour of this particular section.
Mr Chair, when it comes time for a vote on it, I would again ask for a recorded vote.
Mr Curling: The motion put forward by the Liberal Party here, as you said, was struck out because we cannot introduce a motion to ask a section to be struck out. I think we're also trying to give you an opportunity to put a date in. As a matter of fact, here's an opportunity for you, where you have postponed this thing to 1998, and moving it from 1995, that it would be quite okay if you as a government then decided that maybe in 1996 or so and then give a proper reason why you have to postpone it to 1998. Here is a government, a party more so, that took all the praise for introducing pay equity. Everywhere I read, that's what I see, and here is an opportunity now --
Interjection.
Mr Curling: Mr Jackson, you will get your chance to put your little two-cent bid in.
Mr Jackson: It's only a short sentence.
Mr Curling: Here is an opportunity, now that you have postponed it to 1998, to make your adjustment accordingly, to make it at a shorter time. Again, I just want to emphasize what Ms Poole had said: that people will not trust you. As a matter of fact, they have doubts now in trusting you. Here is an opportunity for you not to postpone it to 1998 but to make a better and appropriate date. Then maybe you can take some of the praise for advancing pay equity.
Mrs Caplan: I would ask the government to reconsider and to withdraw this particular section because of what we heard very clearly from the deputants. That was that this particular amendment rewards bad behaviour. It encourages delay, it is an incentive for delay and it is an incentive that rewards the recalcitrants. Those who have not sat down to negotiate a pay equity plan will be rewarded by this amendment. Those who have not lived up to their obligations under the present law will be rewarded by being allowed three more years.
Further, those who have not proceeded as it was hoped they would -- and we heard from so many groups talking about the difficulties that they had had in negotiating plans. Anyone who has waited and who will use proportional -- and you know that many have already used proportional before there was the obligation because the existing law was permissive, and many have made payouts already under a proportional plan -- this will not reward those employers who negotiated those plans in good faith, who used proportional value from the time it was announced that it would be public policy. What this particular insidious section does is penalize those who went the extra step, sat down in good faith and negotiated plans and have had their payouts. It rewards those who didn't do that and it penalizes those women who work in those establishments of employers who did not proceed when they could have proceeded under the old legislation.
The one thing I believe government must never do is bring in an incentive that has a reaction that results in behaviour which goes against the public interest. I think this particular amendment is a very poor amendment, because that's exactly what it does.
I would ask the parliamentary assistant to reconsider and to not reward those employers who have not negotiated a plan by allowing them three additional years on the basis of the fact that they will now use proportional value, which was permitted under the existing plan, albeit in a silent manner.
Ms Murdock: There is no question, and I do agree that it is something that I wish we didn't have to do, but the realities of this fiscal life we lead here have required that there be a delay. I also agree that those employers who have paid more than the 1% -- and there have been some of them out there who have done so -- or who have gone and done, as you say, the PV plans and have done so because they're good employers and believe that women should have equal pay for work of equal value, that this section may affect them. But in all likelihood, because they've already done it and did it well before they were required to by law, their intent was to do it anyway. They weren't going to be waiting for a piece of legislation to come through to require them to do so.
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But the other thing is that I think what is being forgotten in the comments that have been made is that in the job-to-job, under the 1987 act those employers still have the requirement to maintain that 1% for the public sector going back to 1990, for the private sector for employers with 500 or more going back to 1991 and for 100 to 500 going back to 1992. So they still have to keep that 1% payment there; they're still required to do that. This section does not preclude them from maintaining that 1%.
None of that has been stated in any of the comments made by either the presenters or the opposition throughout this, and I think that is really important, that it opens up the schedule, not the plan, because the other comment that was made by the presenters was that this section was going to open up the plan and allow employers or unions or whatever to change their plan, and that is not the case. So I wanted to make sure that was clear. In truth, many of the plans that are in place now, when we checked with the pay equity office, don't have a schedule attached, and since this section only applies to the schedule, it will only apply once their schedule is attached, and now under this law they have to do it by 1998.
Mrs Caplan: Once again the parliamentary assistant misses the point, and in missing the point proves what my colleague Ms Poole, the member for Eglinton, stated a few moments ago, and that is that this particular section takes from, I think Ms Poole said, Petra and gives to Paula, the old Peter-to-pay-Paul. That's exactly what you've done here, and you've done that for anyone who is in a situation where the employer will have to use proportional value.
The other statements that you make: You allow and delay for three years when proportional value is used, and there are many examples of good employers who negotiated the plans and have made the payouts already. You don't reward them; you penalize them. And you penalize the women in establishments of employers who haven't done it. That's the point that Ms Poole made, and that's the point that you're missing.
What you're missing is that you are building in, in this section, an incentive for employers never having to go that step beyond; never rewarding those who have met and achieved the obligation. The opposite of an incentive is a disincentive, and when you remove the disincentive and allow them three additional years and penalize the women who work for them while their competitors have already implemented their plans, that's patently unfair. It's unfair to the women, it's unfair in the workplace and the marketplace. So I would like you to reconsider that before we vote. There are a number of very significant public policy results from this particular section that I'm not sure you have fully comprehended.
Ms Murdock: I don't want to belabour the point, but I think that we have been looking at this from every perspective, and yes, I know exactly what you're saying, but the thing here is that it at least is achievable, and it will get done, albeit a little late. But it's interesting too that I'm hearing those points being made by the Liberal Party when, as we'll see later on when we get into another one of their motions, they would have PV start in 1994, which would put an extreme penalty on them. So in my view, on the basis of the arguments you're making on this section and what you're proposing to do on PV later on, you're talking out of both sides of your mouths, and I don't know how you're doing that.
Ms Poole: Mr Chair, just on one point of clarification: The parliamentary assistant just talked about talking out of both sides of the mouth. It is not inconsistent at all. What this government has done through its delay with this legislation -- and it's been some 14 months since they first introduced Bill 168 -- they did nothing --
Mrs Caplan: It's been two and a half years since they took office.
Ms Poole: They did nothing for, as my colleague says, two and a half years, but they certainly did nothing since they introduced Bill 168. If Bill 168 had come in, you could have had a date of January 1, 1993; it wouldn't have needed to be retroactive. Again, this government has shown its love of retroactive legislation. They seem to think that because the government proclaims an intent of passing legislation everybody has to act as though it's the law.
I'm sorry, Ms Murdock, but that's not the way we've acted in Ontario over the last number of decades and centuries, regardless of the party that's been in power, until this one. So if you're making comments about what the Liberal intent was, it was to say we do not believe in retroactive legislation, and if it hadn't been for the delay of this government, there would be no need of retroactive legislation. Women would have had their plan, they would have had notice to employers as to how long it was going to be to put in a proportional value plan, and January 1, 1993, never would have been retroactive.
Mrs Caplan: That's exactly right.
The Chair: Further comments or questions? Responses? Seeing none, on the question of section 7, shall section 7 carry? No? Recorded vote. All those in favour?
Ayes
Akande, Malkowski, Mathyssen, Murdock (Sudbury).
The Chair: Opposed?
Nays
Arnott, Caplan, Jackson, Poole.
The Chair: The motion is carried.
Mrs Caplan: Mr Chair, I feel like reminding Ms Akande of an all candidates' meeting that she and I attended when the issue of pay equity was raised. She made the point of the NDP's uniqueness and how they stand alone, and I would say to her after she just voted in support of section 7 that anyone who attended that meeting that night will just wonder exactly what she meant by "stand alone."
Ms Zanana L. Akande (St Andrew-St Patrick): One of the things that I might wonder also was that at that time we believed we were coming into a situation where there were funds. Things do change.
Interjections.
The Chair: Order, please. Any questions or comments on section 8? I'll try to pace myself. I always get carried away when we get into votes. Questions or comments? Shall section 8 carry? Carried.
On section 9, Ms Murdock, do you have a motion?
Ms Murdock: Yes. I move that section 14.2 of the act as set out in section 9 of the bill be amended by adding the following subsection:
"Adjustments
"(3) If a plan is amended under this section, the compensation adjustment for each position to which the amended plan applies shall not be less than the adjustment that would have been made under the plan before it was amended."
This, if I may, was an oversight, in that under Bill 102 it wasn't clear that a plan could be less than what they would have gotten under a previous plan, and this is a clarification.
The Chair: Further comments? Seeing none, on the government motion, all those in favour? Opposed? Carried.
Shall section 9, as amended, carry? All those in favour? Opposed? Carried.
On section 10: Questions or comments? Seeing none, shall section 10 carry? Carried.
On section 11: questions or comments? Shall section 11 carry? Carried.
Section 12: Ms Murdock?
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Ms Murdock: I move that subsection 21.2(6) of the act, as set out in section 12 of the bill, be struck out and the following substituted:
"Investigation and complaints
"(6) If notice is given under subsection (5),
"(a) section 16 applies, with necessary modifications, as if the review officer had received advice under clause 16(1)(a) or a notice under clause 16(1)(b);
"(b) section 22 applies, with necessary modifications, as if a person had filed a complaint with the commission concerning whether the job-to-job method or the proportional value method of comparison can be used in the circumstances;
"(c) section 23 applies, with necessary modifications, as if the commission had received a complaint concerning whether the job-to-job method or the proportional value method can be used in the circumstances;
"(d) subsection 24(1) applies."
It's a technical clarification recommended by the pay equity office.
The Chair: Further comments?
Mr Arnott: Just a question: I'm wondering if you can give us a little more of the rationale behind it. I don't recall any of the presenters coming before the committee -- did the pay equity office indicate that as a part of its presentation?
Ms Murdock: We should have put it in and we didn't. For some unknown reason, we didn't put it in, with the complications and the technicalities. But actually, I should probably let Catherine explain, because she was actively involved in this.
Ms Evans: The bill currently has provision for sections 16 and 22 to apply. This amendment also references section 23. Legislative counsel would have to explain why there are more words used in this amendment than in the current bill, which simply says that sections 16 and 22 apply.
Section 23 deals with investigation of complaints by the review officer. It simply follows through the steps that the review office, after receiving a complaint, has to do and ensures that these settlement provisions for review services and the ability of a party to seek review of a review officer decision at the tribunal applies too. So the whole procedure is engaged.
Mr Arnott: So it's just a clarification of those two provisions.
Ms Evans: It is a technical and procedural amendment.
Mr Arnott: Thank you very much.
Ms Murdock: It's not substantive.
Ms Poole: I just had one question, which followed along the lines of Mr Arnott's. You've said this is a technical amendment, so in effect this is not changing anything set out in Bill 102; it is adding some clarification of what the procedures are.
Ms Murdock: For review officers.
Ms Poole: But it is not actually changing the practice that is there right now.
Ms Murdock: No.
Ms Evans: It shouldn't.
Ms Poole: Why would this have to be introduced if it isn't changing procedures that are there right now?
Ms Evans: It clarifies the application of section 23 and clarifies that the application of section 23 is intended. One could argue that it would naturally follow from sections 16 and 22, but rather than have that argument, one would say section 23 applies to ensure that the procedure can begin and follow right through to the end.
Ms Poole: Thank you.
The Chair: Further on the government motion? Shall the government motion carry? Carried.
Ms Murdock: Continuing on section 12, I move that subsection 21.3(1) of the act, as set out in section 12 of the bill, be struck out and the following substituted:
"Proportional value comparison method
"(1) Pay equity is achieved for a female job class under the proportional value method of comparison,
"(a) when the class is compared with a representative male job class or representative group of male job classes in accordance with this section; and
"(b) when the job rate for the class bears the same relationship to the value of the work performed in the class as the job rate for the male job class bears to the value of the work performed in that class or as the job rates for the male job classes bear to the value of the work performed in those classes, as the case may be."
This permits comparisons under proportional value to be made to a representative male job class or job classes, as was requested by a number of the presenters during the week. It also clarifies the interpretation of the proportional value method; same thing for a single representative male job class or classes. There was some discussion during the presentations as to whether or not the singular was already included in the plural. This basically clarifies it so that there isn't any interpretation required. It will state it clearly.
The Chair: Further questions or comments?
Ms Poole: I note, consistent with what presenters told you, that you have changed it from "male job classes" to both singular or plural.
Ms Murdock: Right.
Ms Poole: But one of the other comments that was made by a couple of groups was that they didn't like the word "representative," that they found that difficult. I wonder if you could comment on that particular aspect.
Ms Murdock: Actually, I'm going to get Catherine to do this, again, because it has been discussed with me. It is a complicated matter and I don't want to put something on the record that is wrong -- at least, I'll try to do it as infrequently as possible -- so I'll let Catherine explain "representative," what is meant by that whole definition.
Ms Evans: "Representative" is meant as a guide to employers and bargaining agents or the workplace parties to give them some assistance in identifying which kinds of male job class or classes they're looking for. Proportional value can't be used with just any male job class or classes, and it is critical that the employer or the bargaining agent arrive at classes that are representative of the way in which male job classes are paid in that establishment so that they're not all representative of low wages, for example, or they're not representative of high wages, but they are representative of the generic sense of the way male job classes are paid.
They're also representative in relationship to the value of the female job classes which are being compared against them. Proportional value does not let you, for example, compare a very high-valued female job against a very low-valued male job. You need something more representative.
It is a guide. The act is framed to give the parties as much flexibility as is possible to arrive at the system which works best for their workplaces. This is one area in which the government feels that guidance is appropriate.
Ms Murdock: I think it probably sounds complicated. The way I understood it was when they literally drew me a picture of the chart. I think one of them was presented where you end up with a whole number of job classes in a cluster kind of thing. You might have one male job class way over that is being paid astronomically differently. It's so significantly different that you can't take the job class by itself, so you take the representative group. The line runs through there, and that's the group you take.
That's probably the easiest way to compare it, because if you took the average, say, and included all those, you would end up with a skewed result. So that's why the word "representative" is used.
Ms Poole: If I could sum it up in one sentence, what you're trying to do is remove the aberrations.
Ms Murdock: Yes. Thank you.
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Ms Poole: That makes sense. One of the other questions I have relating to this is what a representative male job class would comprise. For instance, could it be one job, one person?
Ms Evans: A single-incumbent job, yes.
Ms Poole: Is there anything built in to deal again with aberrations? I know, from your explanation, that's what "representative" is meant to deal with, but could it not be possible that there would still be an aberration? It may be a representative male job class and yet it is much more -- it may be relatively close to the female wage and yet that particular person is paid more than he would be, say, in another establishment by an aberration, for whatever reason, he's the boss's nephew, or you can take whatever reason you want, because one thing that does concern me is aberrations and that it not distort what is really meant to be pay equity.
I'm just wondering, does representative really deal with that problem? Will there be guidelines set out as to what "representative" means. You explained, Catherine, very well what it means, but will there be difficulty for employers who are trying to establish what "representative" means?
Ms Evans: The pay equity office has done a great deal of work on this particular provision and will be providing clear, plain language explanations when the amendments are passed concerning how they identify the representative male job class or classes in the establishment.
The Chair: Further on the government motion? Shall the government motion carry? Carried.
Ms Murdock: I move that subsection 21.3(3) of the act, as set out in section 12 of the bill, be struck out and the following substituted:
"Same
"If, after applying subsection (2), no representative male job class or classes is found to compare to the female job class, the female job class shall be compared to a representative male job class elsewhere in the establishment or to a representative group of male job classes throughout the establishment."
It is consequent to subsection 21.3(2) that we just passed.
The Chair: Seeing no comments, shall the motion carry? Carried.
Ms Murdock: I move that clause 21.10(1)(a) of the act, as set out in section 12 of the bill, be amended by striking out "or earlier" in the fourth line.
It is a the technical amendment to clarify that employers are required to make the first adjustment under proportional value effective January 1, 1993, not January 1, 1993, or earlier, as it was originally drafted. It sort of makes sense that they don't have to do it earlier.
The Chair: Further comments? Shall the government motion carry? Carried.
Mrs Caplan: If the government had had its act together and brought this legislation through in a timely manner, this amendment would not be necessary. I think this just goes to the ineptitude of the government.
The Chair: Motion carried.
Ms Poole: In your packages on the white paper you will note there is a Liberal motion which refers to three subsections of 21.10. Legislative counsel has suggested that in the alternative, we would be better to place three separate motions. Because two of the subsections actually are changed because the first one is changed, if it helps expedite matters I'm pleased to introduce the three at the same time and debate three at the same time rather than do it separately.
The Chair: No objections? Okay.
Ms Poole: I'm reading from the yellow sheets that were distributed by the clerk.
I move that subsection 21.10(1) of the act, as set out in section 12 of the bill, be struck out and the following substituted:
"Date of first compensation adjustments
"(1) If a pay equity plan is prepared or amended under this part, the employer shall make the first adjustments in compensation in respect of the new or amended portions of the plan on or before the 1st day of January, 1994."
I move that subsection 21.10(2) of the act, as set out in section 12 of the bill, be struck out.
I move that subsection 21.10(4) of the act, as set out in section 12 of the bill, be amended by striking out "the 1st day of January, 1993" at the end and substituting "the 1st day of January, 1994."
The reason for these amendments is plain and simple: to reduce the retroactive aspect of this particular provision. Just as with Bill 4, the rent control freeze legislation, I opposed it because retroactively it brought in provisions and hardship.
In this particular instance I say again that the government should not believe that, because it has introduced legislation or because it has talked about introducing legislation, that legislation is law in the province. The argument has been advanced, not only by the Ministry of Labour and the government members but also by the pay equity office, that employers in this province knew this was coming and therefore they should have prepared. How could employers be assured of that?
In the throne speech in November 1990, the government said that it was committed to bringing in pay equity extension. It was over a year before Bill 168 was introduced. Then for over a year Bill 168 was never called forward for second reading. Then when, finally, the government introduced it was going to move on pay equity, instead of proceeding with Bill 168, it yanked it and brought in Bill 102.
The rules of some of these games have changed along that part, and certainly employers, for instance in the public sector, had a different understanding of what was going to happen. They thought they were going to have to achieve pay equity by January 1, 1995. That changed. A number of things changed.
How can the government honestly claim that employers knew this was coming and that therefore it's justified in retroactively saying they should have been setting aside moneys and they should have it all ready so that when the act is proclaimed and they put in their plan, the money should all be there?
Life doesn't work that way. People obey the law once the law has been passed, and retroactive legislation is the most abhorrent thing because it says retroactively that people must do things. Notwithstanding that they're a majority government and can do whatever they damn well please, it is not appropriate for government to be saying retroactively, "This is what you had to do."
So I have made a motion that we amend the dates for proportional value to the 1st day of January, 1994. That is consistent with my abhorrence of retroactive legislation, and I say to this government: If you had your act together, there would be no need for retroactive legislation. It would have been in place and employers would have had time to put in their plans and they would have been actually paying into those plans as of January 1, 1993, and no need for retroactive legislation. This is on the head of the government, that your delay has caused this mess, and why should you expect the employers of this province to believe anything you have to say?
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Mr Curling: I fully support Ms Poole's position on this.
Ms Poole: Thank you, Alvin.
Mr Curling: I feel, in the same light, that the argument you gave forward about postponing implementing the pay equity in some sections to 1998 and spoke about the fact of the economic situation and also that your government really didn't get its act together in time -- in the same way with employment equity, when the people out there are expecting a certain action in Parliament, you delayed it and delayed it and delayed it, and now they don't even know when it will come forward. As soon as you think that you have your act together, you say, "Well, we really had our act together a year ago, but we didn't really put it on paper, so let's go back to January 1, 1993." You have caught all the employers off guard because they don't know the progress and how fast you're going.
I think, in all fairness, that you should look at the proposal put forward by the Liberal motion to put it to January 1, 1994, because I have gone through retroactivity with Bill 51 and we had to make some sort of adjustment, because it just doesn't work. It's hard to manage, and also it creates an amount of problems within an environment that doesn't need that kind of hassle.
I appeal to you as a government, with all the powers you have with a majority, to adjust it to January 1, 1994.
Mrs Caplan: One of my colleagues opposite -- I believe it was Mr Klopp -- talked about parliamentary process and procedure. I'd like to point out that this is now the beginning of February 1993. This piece of legislation will have to be reported back to the Legislature. We don't expect that will happen until some time in April or May. We know there's going to be a new throne speech and a budget, and all of those debates tend to take precedence. We know it will require committee of the whole, third reading, royal assent and proclamation. The chances of that happening before late spring or summer or later than that -- given the agenda of this government, you never know. So there will be a very significant time lag before the obligations of this legislation are understood by those it will affect.
Retroactive legislation is inherently unfair. It carries with it the concerns that many people have about the unfairness of looking backward. It's unfortunate that this amendment is needed. I would restate what my colleague said: The reason this amendment is needed is because of the delay that was caused by this government that has been in power since September 1990 and hasn't taken action on pay equity in that amount of time. It is unfortunate, but I would say again that given the legislative process, it seems to me unreasonable, absolutely unreasonable, to attempt to turn back the clock in a way which is so unfair. Retroactive legislation should have been unnecessary, and in this case I think is just unreasonable.
The Chair: Mr Jackson?
Mr Jackson: I'll pass in the hope that we can have a vote before 12.
The Chair: Ms Murdock, a response?
Ms Murdock: I'd just like to make some comments on the three motions put forward by the Liberals. I'm going to state again what I said earlier in response to another motion or amendment, that in terms of the retroactivity, the employers under the public sector were required to maintain the 1% back to 1990. They know that. The employers in the private sector knew that they had to keep the 1% for companies over 500 employees back to 1991, and the employers with 100 to 500 employees knew that they had to keep the 1% back to 1992. So this is not a surprise to the employer groups, as seems to be the feeling of the proponents of these amendments.
I would also point out that, true, we came in in 1990. We said, and we still say, that we are proponents of pay equity. When we put it forth, at least we put some money where our mouth was. We didn't just get up and say that we're supporting proportional value and then, big deal. In March 1990, you say: "I support proportional value. We're going to bring legislation forward." Not a penny of money went forward by the Liberal government. We at least put the money in and the down payment, and this year it's $240 million more. Knowing we couldn't bring in the legislation because of the way the Legislative Assembly works, that we couldn't bring it in right away, we would end up by at least putting some money to pay for it.
Part of the reason -- when it was initially introduced -- that we continued and moved Bill 168, and it had to wait till 102, is because many of the proponents who came before this committee two weeks ago wanted proxy. They wanted some kind of guarantee that if you couldn't have proxy by a set date you'd at least have proxy and it would be there in some form or another.
After 168, which would've brought in proportional value for sure and the proxy discussions continued, and as a consequence of those discussions continuing, we ended up having to change 168 into 102. I also want to remind the Liberals that the down payments that have been paid by this government for the proxy sections become part of the base, so the $2,000 that was given last year, for instance, is included for ever now in those proxy employees who were given the down payment pending the pay equity decision, the plan.
I don't think we have been sitting idly by, as is being implied or directly stated by the Liberals. I would also like to finally point out that Bill 168, if you remember, if we had proceeded on that, had a January 1, 1992, deadline. This proposal by the Liberals, as I pointed out earlier, means that proportional value would have one year to be put in operation. Frankly, the confusion and difficulties that would arise from that would be unbelievable.
I don't think the retroactivity is the problem that is seen by the Liberals and, as a consequence, we are going to be voting against these motions.
The Chair: Further?
Ms Poole: I would like to address a number of comments made by the parliamentary assistant.
Mr Jackson: Point of order, Mr Chairman: Is it your position now not to recognize a member when he calls the question?
The Chair: Not until it's your turn to speak. He doesn't have the floor. Ms Poole has the floor right at the moment.
Mr Jackson: Do you have a speaker's list?
The Chair: Yes, I do.
Mr Jackson: Is the gentleman on it?
The Chair: He hasn't indicated that he wanted to speak.
Mr Paul Klopp (Huron): I didn't know that procedure. I'm sorry, sir.
Mrs Caplan: He's only been here two and a half years.
Ms Poole: The parliamentary assistant made the comment that when employers were required to put aside the 1% for 1990, they did so. They did the same for 1992 and they did the same -- there's a very major difference. The legislation was passed in 1987 which set out the timetable for when employers had to do this. They knew in advance what was coming and it was legislated in advance what was coming. Well before the 1990 date, this information was available to employers and it had the sanctity of law. This does not meet that requirement.
Secondly, she said the Liberal government announced in March 1990 it was proceeding with proportional but it didn't put a penny into it. Of course they didn't. It was never put into legislation because there was an election five months later. In fact, the election was called four months later. This government has not even been able to put a policy in place in four months, let alone pass legislation and flow of funds. Let's get realistic.
The parliamentary assistant also made reference to changes from 168 to 102. She said, "One of the reasons this was necessary was because they were still discussing proxy and making changes."
It appears from the presentations we had the week before last that the presenters didn't like the changes to proxy that you brought in. They didn't like what you did to Bill 168. They supported Bill 168. They do not support what you've done in Bill 102. So you've made, not changes that your consultation showed were necessary; you've made changes that the very people you consulted with have come and said they don't like the way in which you've done it.
The other point the parliamentary assistant made was that she said the down payment on pay equity made to the proxy groups will become part of the base. What they really are is part of the bribe.
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Ms Murdock: Part of the what?
Ms Poole: They have been part of the bribe. They were so disappointed, that after press conferences saying how they felt betrayed and used by this government, suddenly a new plan comes up. But this new plan, as shown by a survey that was only sent out in November 1992, was never part of the government's original intention. It was something they brought in, this down payment, in order to try to placate women who felt very badly used by this government.
They act as though wage enhancements are a new thing, and that's what we're talking about. It's not a down payment on pay equity; it is a wage enhancement scheme, the same as the Liberals brought in in 1987 with New Directions for Child Care under the direct operating grants, the same as the NDP government did with the child care wage enhancement. That's what this is. So this is not something new.
But this is not something that solves the basic problem. This government did not know what it was doing. They delayed bringing in pay equity because they didn't know what they were doing, and now they intend to expect us to make their problems come into law retroactively. Well, I'm sorry, we don't agree with your rationale and we don't agree with retroactive legislation.
I don't think we have any further questions or comments. If Mr Klopp wants to call for the vote, and there are no other speakers, that's fine with us.
The Chair: Mr Jackson.
Mr Jackson: I want to reiterate again that I respect Ms Poole's effort in this bill, but I'm seriously working at keeping my breakfast down when I have to listen to her go on at length, if she's going to wander so extensively on this issue during clause-by-clause.
The truth of the matter is that the Liberals had a bankrupt pay equity plan. It was a mess that dramatically discriminated against a whole group of women in this province, and the voters in this province -- in particular women voters in the last provincial election -- told this government what it thought of it.
I will agree with the point she's making, but if she's going to persist in overstating the territory on pay equity in such political terms, then it would be very important for me to begin participating in this debate.
On the issue of retroactivity, having served here as long as Ms Poole -- no, actually she's served here fewer years than I have, but Ms Caplan certainly --
Ms Poole: With much greater effect.
Mr Jackson: I'm not about to debate our egos; that's one thing for sure. But I do know that even on the rent control legislation, while she was playing around in municipal politics, there were retroactive elements in the initial rent control legislation.
If we're being forced to sit and listen through all this, I feel it's essential, since the governing members are all relatively new to Parliament, that at least I'm prepared to participate in this wandering debate on just how overstated the Liberal commitment to pay equity has been in this province. Basically, it's all contained in paper and Ms Poole's efforts so far have been about 90% trying to create additional paper with Hansard.
I'd like to call the question.
Ms Poole: Mr Chair, on a point of privilege.
Mr Jackson: I call the question. The question takes precedence.
The Chair: Point of privilege, Ms Poole.
Ms Poole: Mr Chair, aside from many gross inaccuracies in Mr Jackson's statement, he said I tampered in or dabbled in municipal politics.
Mr Jackson: Played in municipal politics.
Ms Poole: I have never sought election nor been elected to municipal politics, so I wish he'd at least get that very small statement correct.
The Chair: All those in favour of calling the question? Opposed? We'll go to the question. The vote will now proceed on section 12 as amended.
Ms Murdock: Are we not voting on the Liberal motions?
The Chair: By calling the question, you go back to the main motion, and the main motion is on section 12, so the Liberal amendments are superseded.
On the main question, on section 12 as amended, shall section 12 as amended carry? All those in favour? Opposed? Carried.
Interjection.
Mr Klopp: It's 12 o'clock.
The Chair: The vote has already been taken. The motion is carried.
Being as it's 12 o'clock, this committee will stand recessed until 1:30 this afternoon.
The committee recessed at 1156.
AFTERNOON SITTING
The committee resumed at 1347.
The Chair: I call this committee back to order. We'll now be dealing with section 13. Ms Poole.
Ms Poole: I move that part III.2 of the act, as set out in section 13 of the bill, be struck out and the following substituted:
"Part iii.2
"Additional pay equity provisions
"Application
"21.11 This part applies to those public sector employers with a female job class that cannot be compared to another job class under either the job-to-job method or the proportional value method of comparison.
"Compensation adjustments
"21.12(1) A public sector employer shall make such adjustments in compensation as prescribed by the regulations for those employees who are in prescribed occupations or performing prescribed duties.
"Time for complying
"(2) Adjustments in compensation shall be made in accordance with the timetable prescribed by the regulations.
"Act to prevail
"(3) Adjustments in compensation required by this section shall be deemed to be incorporated into and form part of any relevant collective agreement or part of any employment contract between the employer and the employee.
"Regulations
"21.13 The Lieutenant Governor in Council shall make regulations,
"(a) governing the classification of employees according to their occupation or duties for the purposes of subsection 21.12(1);
"(b) governing adjustments in compensation to be made for employees,
"(c) prescribing one or more timetables for making adjustments in compensation."
This Liberal motion deals with removing proxy as the third method of comparison to be used in pay equity. I think it is the supposition of a number of witnesses that they had problems with the proxy method chosen by the government not only in the language but in the fact that it was comparing female jobs to female jobs. This was a violation of the spirit of pay equity and the principles of pay equity as originally set out, which was comparing female jobs to male jobs in order to rectify gender discrimination in compensation within an establishment.
It is our submission, as the Liberal caucus, that proxy is going to create more problems than it solves. We feel a much easier way of dealing with it would be through wage enhancements. It became obvious through several presenters in the hearings that there was concern over whether the government would actually fulfil a commitment to pay the full amount of the pay equity settlements necessary in the proxy area.
If you look at the submission of the Ontario Association of Interval and Transition Houses, it discusses its problems with the proxy method in a very articulate way. They were concerned, first of all, about whether they would get any help in the implementation process for the plan. They were also concerned about whether full resources would be available from the government in order to pay the plan. In fact, they were fairly critical of the government for not giving enough resources to the women's shelters to begin with, and they feared that this would add one more layer to their sector that would in the end not bring them equity but would bring them additional heartache.
I think it became clear that one of the difficulties with women accepting a wage enhancement instead of a pay equity solution was twofold. The first concern was an equity issue. They felt it was a pay equity issue and it was a matter of approach; they didn't like the idea that it was dealt with as a subsidy as opposed to a pay equity approach. I do have some sympathy for that point of view, but in the final analysis, if you look at the bottom line, which is that you want women to be paid, particularly women who are in these all-female wage ghettos where they are being significantly underpaid, the bottom line is that you want those salaries adjusted. I have pointed out before in committee several ways in which it has already been implemented quite successfully in Ontario, one through the direct operating grants with the child care workers and also the wage enhancements that were followed up under the NDP government.
I guess maybe I'm a pragmatist, but I think the bottom line is very important: Are you going to put in a very complicated, confusing system which certainly does not have any universal acceptance of how it should be put in, a system moreover where there's some reluctance to believe that the government is going to (a) foot the bill, and (b) be able to foot the bill? I think the second one is also a very important criterion.
We have already seen an instance in this particular legislation where, because of the deficit situation, the government has had to backtrack on a commitment to women on pay equity by delaying it three years in the public sector. I think there is a real concern out there that if the government makes a commitment that it cannot keep, this will happen in the broader public sector as well. If the funds aren't flowing, there are only two things that happen: Those public sector workplaces will have to cut staff or cut services -- ie, programs -- or secondly, that the government is going to have to pay that extra burden, particularly since there are no definitive statistics showing what this is going to cost.
One thing that I think did come through is that there is distrust of government. They felt a legislated solution -- ie, through putting a method in the legislation -- was preferable because they didn't trust government, this government or any subsequent government, to come through and do what it said it would do if it was in the area of wage enhancements, for instance.
So what the Liberal amendment does is provide an alternative method to have these female job ghettoes identified and for wage enhancements to be paid to women in those sectors so that over a number of years the discrimination on the basis of wages could be remedied. So I think, first of all, it is a fiscally responsible approach. I think, secondly, it is a much easier approach and will lead to far less heartache down the road than a method which has engendered so much controversy.
The Chair: Response? Ms Murdock.
Ms Murdock: I guess basically it would come down to whether you believe in a rights base or an enhancement base. Enhancement, in our view, is not pay equity. In fact, some of the groups -- I can't remember who they were, but it was stated during the presentations that they were uncertain under an enhancement program whether they would even reach pay equity.
I think there's another concern that you haven't mentioned, and that is that enhancements can be taken away. At least this is legislated; it would be in there that they would have to start looking at that program. Enhancement, again in our view, is a subsidy rather than a right, and in our view pay equity is a right. I just have real problems with this motion, and it would completely negate all of the proxy discussions that have gone on thus far. I couldn't agree to it.
Ms Poole: Just one comment to the parliamentary assistant: What is not legislated in Bill 102 is the fact that the government will pick up the full costs of the proxy as far as paying out the plans is concerned. Quite frankly, I think that then puts Bill 102 in the same position as wage enhancements through regulation, because at any given time this government can renege on its commitment to pay the full cost of the pay equity plans. At any time you can do that. There has already been a place in Bill 102 where this government has reneged on commitments to the pay equity plans in the public sector.
As far as Bill 102 giving legislative assurance is concerned, no, it doesn't. It gives legislative assurance that there is a proxy method. Nowhere in Bill 102 does it say that the government will pick up the full cost of it. Nowhere in Bill 102 does it say what this cost is going to be. Nowhere in this legislation does it say what the government will do if the fiscal situation worsens and it cannot keep their promise. So I don't see where this legislation provides any more assurance in those three areas than does what we are proposing, which is regulations which set out a timetable, which set out the prescribed groups that would be entitled to this, and which set out what the payments are going to be in a very fiscally responsible but secure manner -- and this is what the government's intentions are, because what we are talking about is payment, who is going to foot the bill. So I'm sorry; your promise, the promise of the government, is not engendered in this. I don't see in Bill 102 where this government has said that it is going to pay the full cost of pay equity.
Mr Arnott: Just to follow up with one of the points that Ms Poole has made -- and if I quote her incorrectly, I'm sure she'll correct me -- it comes back to the initial definition of pay equity, does it not, equal pay for work of equal value, which means comparing two different jobs and trying to apportion a value to each and adjust one upwards, which is what pay equity has been since the Liberal government introduced it some years ago.
There are other ways of going about trying to achieve what you want to call pay equity, and you can do it by simply specifying which positions the government feels are presently being underpaid. It doesn't have the pay equity office coming in to administer the entire program, but certainly if the government feels there are certain specific jobs that are underpaid, what's to stop it from designating which ones those are and increasing transfers to those particular jobs?
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Ms Murdock: Basically, and I'm going to respond to Miss Poole's first and then try and respond to yours, under job-to-job and under proportional value, it doesn't state there in any specific language that the government is the payor or will be paying the pay equity costs. The fact that it isn't stated under Bill 102: I don't think the argument Mrs Poole is using has any weight in that respect.
Secondly, I couldn't begin to count the number of consultations that have occurred with every interest group that would be related to pay equity, and almost all of them have preferred, even though it is complicated, the proxy as compared to enhancement. To now take that out under this motion, I think we would be doing a disservice to all those people we've been dealing with on this for hours and hours, and years with some of the groups.
I guess too it should be remembered, and I think people tend to forget, that proxy does not apply to the private sector. It only applies to the public sector. I don't imagine any subsequent government would change this concept. The government of the day would continue its payment exercise by whatever method is invoked by the parties, be it job-to-job, proportional value or proxy.
I think too that the schedule we submitted on the first day of the consultations assists; it certainly isn't exclusive, but it assists in those designations that you were talking about. But I don't think under legislation you could specify particular jobs that would be considered proxy. I can't think of any piece of legislation that would go to that degree and that kind of thing. I think legislatively it would be a real nightmare, but legislative counsel would probably be able to answer that even more directly. So those are my responses.
The Chair: Further comments?
Ms Poole: Just to respond to a couple of comments by the parliamentary assistant, when she was talking about the list of women who would be included in this female job ghetto, as I call it, and how difficult it would be to legislate that, that would be in the regulation. In fact, the Ministry of Labour in the document to which I referred yesterday, the document that it sent to the Ontario Federation of Labour, did have a list of those jobs where it would be using the proxy method.
What it would do -- the only difference we're talking about -- is to put that list of jobs, the list of those who would be eligible for proxy, in a regulation and set out a timetable by which their salaries would be upgraded until certain goals were reached. So I don't see that it's that much of a legislative difficulty.
Ms Murdock: I was responding to Mr Arnott, who was asking that it be put in the legislation.
Mr Arnott: No, I wasn't asking.
Ms Murdock: Oh, that's what I understood.
Mr Arnott: I was merely making the point that it was perhaps an option the government could consider if indeed it was your absolute objective to go ahead in this direction.
Ms Murdock: In proxy?
Mr Arnott: No. In terms of advancing pay equity.
Ms Murdock: In relation to the list from the Ministry of Labour to the OFL, that wasn't an all-inclusive list; it was probable or possible. I guess you're using the term "female ghetto" areas or jobs and the ministry provided those -- even when you look at that schedule of jobs, you try to be as inclusive as you can, but there are no doubt going to be other areas that either develop through new technology advances or something. Who knows what could happen? Through regulation, you're right that those kinds of things can be done, but they can be done now.
This Liberal motion would completely remove "proxy system" and put it on basically a low-wage redress system, and we're not in agreement with that.
The Chair: Seeing no further comments on Ms Poole's motion, all those in favour? Opposed? Defeated.
Ms Murdock: Section 13 of the bill:
I move that clause 21.13(a) of the Act, as set out in section 13 of the Bill, be struck out and the following substituted:
"(a) between each key female job class in the seeking employer's establishment and female job classes in a proxy establishment; and"
The second "female" that is in there on line 2 was inadvertently left out. This section provides explicitly that each key female job class must be compared -- and I put emphasis on "compared" -- to "female job classes in a proxy establishment." It was the intention of Bill 102 and it's clear from the other sections, but this is a correction.
The Chair: Further comments?
Ms Poole: Just to say briefly that this area was one in which there was a great deal of consensus that they wished to have female jobs compared to male jobs, as opposed to the government's choice, which was to compare female jobs to female jobs. Although I think this is a minor technical amendment just to reinstate a word which was inadvertently left out, by going this route I think they are going to engender a lot of dissatisfaction with the proxy method itself and how it's implemented.
I go back to the principle of pay equity, which was to redress gender discrimination within the same establishment between female jobs and comparable male jobs. To me, this again does not fit pay equity. It does fit a real problem in our society, which is that you have a number of female groups which have very low wages which should be redressed.
Ms Murdock: Just to respond to that, it's being compared to the female job class, which actually came as a suggestion from the pay equity coalition initially. Obviously, from its presentation, it has since redressed that viewpoint or moved away from there, but it made sense when it suggested it in the first place, and it still makes sense in the sense that the proxy establishment will already have done the job comparisons, will already have the pay equity plan in place. That's why you're applying to the proxy establishment.
The gender discrimination that has been suggested: The job had already been compared and so therefore, when you're going from female to female job class, you're comparing the female job to the female job class that has already gone through the whole process of being compared to the male comparators.
Of course, everything is open to discussion, but in our view there isn't the gender discrimination that is suggested from this, just to go on to the other. I'll say it now; I won't say it again when we come up, I promise.
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Ms Poole: Just one point of clarification for the parliamentary assistant: I didn't say that this method was going to result in gender discrimination. I was talking about the original concept of pay equity and the original principle of pay equity, which was that it was to redress gender discrimination. I'm not saying this will lead to gender discrimination. I did want to clarify that.
Ms Murdock: Some of the groups did make that point. They were saying that their fear was that by comparing female to female, you might be doing that.
Ms Poole: We discussed this during the hearings. I think the one thing that hasn't been mentioned is when you are comparing a female job to a female job that has already been through a pay equity plan, the success of that comparison relies on the integrity of the original plan, and I think that was one very valid point that was made by several presenters. They were concerned with this indirect comparison, where eventually you would be comparing with the male comparable. But a lot depends on the integrity of that original plan and I think that is one major reason why so many of the groups were opposed to doing this particular method.
The Chair: Comment? Seeing nothing further on Ms Murdock's motion, shall it carry? Carried.
Ms Murdock: I move that subsection 21.15(5) of the act, as set out in section 13 of the bill, be amended by striking out "subsections 21.17(5) to (7)" in the ninth and tenth lines and substituting "subsections 21.17(4) to (6)."
This section just corrects a typographical error in identifying the subsections dealing with the choice of job classes. That's all it does.
The Chair: Further comments? Shall Ms Murdock's motion carry? Carried.
Ms Murdock: I move that paragraph 4 of subsection 21.18(2) of the act, as set out in section 13 of the bill, be amended by striking out "job rates" in the last line and substituting "pay equity job rates."
Again, I think it's pretty evident that it requires a proxy pay equity plan to identify the proxy establishment's female job classes to which the seeking establishment's key female job classes were compared in their pay equity job rates; that is, the rate that they'll receive once pay equity is achieved.
The Chair: Further comments? Shall Ms Murdock's motion carry? Carried.
Shall section 13, as amended, carry? Carried.
On section 14, Ms Murdock.
Ms Murdock: I move that section 14 of the bill be struck out.
The Chair: As in my previous rulings, Ms Murdock, this motion is out of order and you'd have to vote against the section. You can't move to strike out. Discussion?
Ms Murdock: One of the reasons we wanted to remove it, and we will be voting against our own motion, is that a number of the presentations made to us two weeks ago advised us of the potential here for having changed circumstances in another workplace affecting pay equity plans and so on. We agreed with them and decided to remove that section.
The Chair: Further discussion on section 14? Shall section 14 carry? Defeated.
On section 15, Ms Murdock.
Ms Murdock: I move that section 15 of the bill be amended by adding the following subsection:
"(5) Section 24 of the act is further amended by adding the following subsections:
"Same
"(5.1) The pay equity office shall be deemed to be the applicant for a reference under subsection (5).
"Same
"(5.2) On a reference under subsection (5), the hearings tribunal shall not consider the merits of the order that is the subject of the reference.
"Burden of proving compliance
"(5.3) On a reference under subsection (5), the person against whom the order was made has the burden of proving that he, she or it has complied with the order."
All of the points here are procedural. It follows along with what's under the present act under 24(3) where pay equity officers have the power to make an order if contravention of the act occurs. It deals with situations where non-compliance continues to occur despite the fact that a pay equity officer has made an order. It follows through then that, for instance -- and probably the easiest is to give some examples of where no one in the workforce makes a complaint or doesn't apply when non-compliance is occurring. They've either moved on or they've changed jobs. As a consequence there may not be a gender-neutral plan sitting there, but no one comes forth and the order sits. Therefore, the pay equity office would be able to apply to that.
There have been instances where complainants or workers know that the order is still not being applied but are afraid to come forth and go through the whole process themselves, and this would allow the pay equity office to do it for them. There are other instances, which thankfully don't happen very often, where there are what you call sweetheart deals where it occurs that there is no applicant and, as a consequence, the order is never complied with and therefore the act is not being complied with.
The other thing is that subsection 24(5), as it exists under the act, already refers to a reference. This continues the procedural application of the reference for pay equity officers.
The Chair: Further comment?
Mr Arnott: Is this amendment in order?
The Chair: There was some concern raised about this and I'd be willing to listen to any points you might have to enlighten the Chair on this.
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Mr Arnott: It's my understanding that this may not be in order, given that part of the amendment deals with the existing act as it is. It comes outside of the bounds of the bill.
The Chair: Ms Murdock, do you have any arguments?
Ms Murdock: I just refer back -- I know there's been a lot of discussion on this back and forth -- to the explanatory notes of the act itself. When you get to the last two paragraphs of the explanatory notes but specifically the last one, where "The bill enables review officers to issue compliance orders for failure to comply with the act," all of the sections here apply to that. It does apply to references under subsection 24(5) under the existing act, but it specifically goes to subsection 24(3) and carries on the procedural consequences of subsection 24(3).
The Chair: Further arguments?
Mr Arnott: I'm not sure if it's in order or not. I suppose I would ask you to rule based on the information that's been presented. But this replacement government motion was just brought to my attention yesterday and I really feel that there's perhaps more consideration that should be given to it before we go ahead with it.
I understand that the pay equity office has given the concern to the government that this should be undertaken, but I just have a number of questions about it. I find it curious to imagine a situation where the administrative body that is to govern the act -- in other words, the pay equity office -- would indeed step in if no one's complaining, if everyone's happy. To me, that notion is rather curious, and I'd leave it at that perhaps for now.
Ms Murdock: This is where an order has already been written. This is a sequel to an order being written and ignored, and there are instances. We've seen it even when Pay Equity Advocacy and Legal Services was in here making a presentation, where many of the people who wanted to complain about the fact that their needs weren't being met by either their employer or the order just didn't have the nerve to go through the whole process and they needed the assistance of PEALS to act on their behalf.
It is conceivable, in fact it has happened, where the order says you have to comply with the act, the parties do not comply with the act, in fact in instances have removed themselves from some of the requirements of the act, and there is the pay equity officer's order sitting there not being dealt with at all. At present under the act what they can do is refer it to the tribunal, but then there's no enforcement of that, and the procedures here say that they can be deemed as an applicant.
If the pay equity officer has written up an order and it is not complied with, then all this is saying is that the pay equity officer then can be an applicant for the purposes of that non-complied-with order and only that one. You can't just take any plan and go in willy-nilly and refer these things. It can only be on orders that have already been written, which follows from the functions that are listed under subsection 24(3). That's why I say that it's still in order.
Ms Poole: Mr Chair, I've done a fair amount of thinking on this particular one since the government members brought it to our attention yesterday, and it would seem to me that in the original act there was a mechanism for compliance with orders but it doesn't have any teeth and it isn't working. So this is simply a mechanism to ensure that when there is an order, there is a mechanism for compliance that works.
As Mr Arnott said, we have had short notice, since we only had the amendments yesterday, but it would seem to me there's a lot of merit in saying this amendment is in order because it does appear, from the explanation at the front, to meet the criteria and, secondly, it's just really beefing up a provision of the original act.
The Chair: Thank you, Ms Poole. I'll make a ruling that this motion is in order. Basically, when you rule things out of order, it's because a section isn't open. This isn't specifically dealing with subsection 24(5); it's in addition to. So, being under the explanatory notes, it is within the scope of the bill. It means it is administrative and procedural. I'll rule that it is in order.
Mr Arnott: Just to respond to the parliamentary assistant's discussion earlier, I listened to her very closely and I think I understand her point, but again I state that it's highly curious. There were many people who stressed that the NDP would be an interventionist government. Here we have an example of an intervention into the relationships between people, between employers and employees. Here we have a situation where government says to one of the people who are involved in this relationship: "We're going to improve your lot, and even if you're happy, we're going to tell you, `No, you're not happy. We're still going to take another step and improve your lot.'" I find it very unusual that the government is looking forward to becoming even more of a Big Brother in society in this respect.
Ms Murdock: A Big Sister, I think.
Mr Arnott: Secondly, we find the other point that people brought up when the signal first went out, I guess in 1985-86, that pay equity was going to be a policy of our provincial government. People talked about the concept of pay police coming into a workplace and telling employers how much they are going to pay their employees. When this amendment comes forward, and the government is indicating that this enhances the enforcement mechanism that the pay equity office or tribunal has at its disposal, I think you're raising the spectre of the pay police.
Ms Murdock: I do want to respond to that. This is not interventionist in the sense that whatever government of the day or the pay equity office is sitting back and just randomly choosing employers and employees it's going to hit on for an order. They have been requested to come in and try to work something out because they can't get agreement. At the end of the day, when the pay equity officer writes up an order, it's for non-compliance to the act, which is law as it stands right now. They're basically saying that these two parties are not complying with the law of the day as it stands. Now, even though no one applied --
Mr Arnott: If both parties are happy?
Ms Murdock: Even if the two parties are completely happy with the fact that they aren't obeying the law, the fact is that they nevertheless are not obeying the law, that their plan or whatever -- it doesn't necessarily have to be specific to that, but whatever it is that they are not complying with -- is basically against the Pay Equity Act. I don't see where that's pay police or George Orwellian or anything. It's just saying: "This is the law. You have to abide by it." If you don't do this, what you're allowing is parties to make an agreement not to obey the law, and I don't think that's right. I don't think any government of whatever stripe would think that was right.
Mr Arnott: But if you assume that trade unions who represent workers at the bargaining table always act in their best interests, why would the unions in any case -- and you mentioned a sweetheart deal. When has that happened?
Ms Murdock: The allegation is certainly evident in a couple of cases, and I'm thinking of one case in particular, where there has been opting out of the act and they have basically said, "Well, we're not abiding by a couple of sections of the Pay Equity Act," and both parties have agreed to it, both employer and union. I don't care whether it's a union or not; they should not have the right to opt out of the law at will. They're just basically saying, "I don't feel like following this law, so therefore we won't and we'll get an agreement to do it."
The Chair: Ms Evans, for clarification?
Ms Evans: For clarification, just to point out that this provision does not prevent a party to an order from asking the tribunal to review the order on its merits. If a party believes that an order is wrong, for example, the party can then apply to the tribunal to have the order rescinded, buried, confirmed, whatever, and this provision simply ensures the order is not ignored. That is the only thing.
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Mr Arnott: It's an enforcement mechanism. It's not there presently.
Ms Evans: It's an enforcement mechanism. However, if a party believes the order is wrong, it is not subject to enforcement in connection with an order it believes is wrong. They can apply to have the order changed, and it doesn't prevent them from doing so.
Ms Murdock: I apologize. I was going on the opting-out aspect of it, but yes, that's right. If either one of the parties were to think the pay equity officer was completely erroneous in whatever decision he came to, then the party can go through that process to have the merits of that decided. If it's still found that they are in error, then the equity officer's order would be enforced under these sections.
The Chair: Any further questions or comments? Seeing none, shall Ms Murdock's motion carry? All those in favour? Opposed? Carried.
On section 15, as amended, shall section 15, as amended, carry? All those in favour? Opposed? Carried.
On section 16: Ms Murdock.
Ms Murdock: Could I stand that one down, please? I believe legislative counsel and I have to confer for a moment.
The Chair: Is there agreement to stand this one down? Agreed.
Ms Poole: Just for members' information, I'm reading from the fourth Liberal motion in the yellow sheets now, which was an amendment tabled this morning, subsection 16(8) of the bill, subsection 25(7) of the act.
I move that section 16 of the bill be amended by adding the following subsection:
"(8) Section 25 of the act is further amended by adding the following subsection:
"Burden of proof
"(7) In a hearing before the hearings tribunal, a person who is alleged to have contravened subsection 9(2) has the burden of proving that he, she or it did not contravene the subsection."
This relates back to a section in the Pay Equity Act which gives some enforcement mechanisms when there has been retaliation or where there has been harassment in the case of an individual who wishes to pursue his pay equity rights and is having difficulty doing that because of the employer's actions.
When we had a presentation from PEALS, Pay Equity Advocacy and Legal Services, the week before last, it brought before us the situations where women would not or could not proceed with their pay equity application because of fear of retaliation from the employer. In some cases, there had actually been retaliation and harassment action. One of the difficulties in a number of the cases that PEALS represented the women on is that these women did not have the resources to deal with this, and in fact there was an intimidation factor.
I don't believe this was the original intent of the act. I believe the original intent of the act was that good pay equity employers would do what they were required to do under the act and that employees would not be intimidated out of their rights of pay equity.
What this provision does is provide that under subsection 9(2), which deals with retaliation in the act, the person who is alleged to have contravened the section has the burden of proving that he, she or it does not contravene the subsection. It just puts the onus on a different party as opposed to the person who does not have the resources to proceed.
The Chair: Thank you. Further comments?
Ms Murdock: Just that I concur with Miss Poole's remarks and fully support this amendment.
Ms Poole: This sounds very promising.
The Chair: Seeing no further discussion on Miss Poole's motion, shall Miss Poole's motion carry? Carried.
On section 17, any questions or comments?
Ms Poole: I just wonder if the parliamentary assistant could explain where this varies from the current procedures under the hearings tribunal and what the change is from the act.
Ms Murdock: Which section are we discussing specifically?
Ms Poole: Section 17.
Ms Murdock: Section 17, the new part?
Ms Poole: Yes, subsections 25.1(1), (2), (3), (4), (5) and (6).
Ms Murdock: It's regarding settlements before the Pay Equity Hearings Tribunal. How it differs: It binds the parties to the settlement, as well as the employees represented under subsection 25.1(2), where the bargaining agent was a party to the settlement. Just a second; I want to get the act.
Ms Poole: Maybe if I ask a question, it might help to put it in --
Ms Murdock: It's just that I haven't got my existing act in front of me to see the differences between the two.
Thank you for your patience. Under section 25.1 in the existing act, there is no provision that settlements are final and binding. This provision does make that change under the amendment that we're proposing here today in that there is an avenue to complain if it's not being complied with.
The main reason for this is that it then creates certainty. The way it is under the existing act, the settlements have not been binding to both parties and this provision means they are. That will create certainty, then a settlement is made between the pay equity office and the parties.
Ms Poole: Under the hearings tribunal as it exists right now, can there be a settlement in writing?
Ms Murdock: Before it goes -- when they go through the --
Ms Poole: Right now, under the existing act with relation to subsection 25.1(1), in the midst of a tribunal hearing, can the parties settle the matter in writing right now?
Ms Murdock: Yes. The way it happens now is that even before it gets to the tribunal, they have pre-hearings and they'll settle oftentimes before they go to the tribunal process, and yes, get it done.
Ms Poole: So subsection (1) in itself is not a change. It's the other things about whether, if an agent acted on the part of one of the parties, for instance, this clarifies that it's binding.
Ms Murdock: Yes. It's required to do it now. Basically, this is the way the pay equity office started applying it from 1987 and it's been doing that. What section 17 is doing is to put the practice in law.
Ms Poole: Okay; so it's codifying the practice into law.
Ms Murdock: Right.
The Chair: Further on section 17? Shall section 17 carry? Carried.
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On section 18:
Ms Murdock: It's codifying the practice again, just before Ms Poole asks me.
The Chair: Comments or questions?
Ms Poole: Just one question: With reference to clause (g), it says, "may in a hearing admit such oral or written evidence as it, in its discretion, considers proper, whether admissible in a court of law or not." The review officers are not under the Statutory Powers Procedure Act.
Ms Murdock: Right.
Ms Poole: The tribunal is under the SPPA. So does (g) refer to the pay equity office or does that refer to the tribunal?
Ms Murdock: To the tribunal.
Ms Poole: So that would not violate any part of the SPP act.
Ms Murdock: No.
The Chair: Further? Shall section 18 carry? Carried.
On section 19, questions or comments?
Ms Poole: Just one question: Did you have a definition for "incapacitated"? I'm wondering about all the things that could happen to these hearing tribunal members.
Ms Murdock: Some might even think you're -- I don't know. I had better not say it.
Ms Poole: Intoxicated.
Ms Murdock: Yes, you could be incapacitated. "Unable to continue," I think is the standard understanding of "incapacitated," but no, there isn't a definition per se.
Ms Poole: I just wondered how often there was incapacity.
Ms Murdock: Some people think if you're a New Democrat or a Liberal or a Conservative, depending on your perspective, you would be incapacitated.
The Chair: Further comments? Seeing no further comments on section 19, shall section 19 carry? Carried.
Section 20: Ms Murdock.
Ms Murdock: I move that subsection 32(1.1) of the act, as set out in subsection 20(2) of the bill, be struck out and the following substituted:
"Same
"(1.1) The hearings tribunal or a review officer may require an employer to post a notice relating to this act in a workplace."
This was simply in response to the fact that the labour groups that came before us specifically said that their collective agreements prevented them from posting any notices in the workplace and that the employer had sole responsibility to do that, so we have included this.
The Chair: Further comments? Seeing no further comments on Ms Murdock's motion, shall Ms Murdock's motion carry? Carried.
On section 20, further questions or comments? Seeing none, shall section 20 carry, as amended? Carried.
On section 21, questions or comments? Seeing no questions or comments, shall section 21 carry? Carried.
On section 22, questions or comments?
Ms Poole: Could the parliamentary assistant please give us the reference for subsection 22(1)? For instance, (f.1) refers to the maintenance and the limitations on maintenance imposed by this act. Could she please explain section 36 of the act and how it is amended by this particular section?
Ms Murdock: Let me get you right. For instance, (f.1) is in reference to section 36. Is that what you're asking me to do, and then go, "Clause (g.1) is in reference to..."? Is that what you're asking?
Ms Poole: What I'm referring to is that we have from (f.1) to (g.5) in this list, and I don't know what section 36 of the act says, so I don't know what this particular clause is doing.
Ms Murdock: The "Regulations and Miscellaneous" section under part VI of the act: Section 36 specifically says, "The Lieutenant Governor in Council may make regulations," and then it goes, "(a) prescribing forms and notices..." I'll just shorten them, if that's all right.
"(b) prescribing methods for determining the historical incumbency of a job class;
"(c) prescribing criteria that shall be taken into account in deciding whether a job class is a female job class or a male job class," and so on.
Ms Poole: That's fine. That answers my question. In other words, that was just providing a list of the areas in which there could be prescribed regulations.
Ms Murdock: Yes, and hence the reason the dots separate the (f) through to the (g) from 1 to 5.
The Chair: Further questions on section 22? Seeing no further questions or comments, shall section 22 carry? Carried.
On section 23, questions or comments? Seeing none, shall section 23 carry? All those in favour? Opposed? Carried.
Section 24, questions or comments? Seeing none, shall section 24 carry? Carried.
Before we revert back to section 16, this committee will take a 10-minute recess.
The committee recessed at 1448 and resumed at 1501.
The Chair: I'd like to call this meeting back to order. We'll revert now back to section 16, the motion by Ms Murdock which was stood down.
Ms Murdock: I'd ask that the motion be waived and a replacement motion on the same section be considered.
The Chair: Do you care to move it?
Ms Murdock: I move that section 16 of the bill be amended by adding the following subsection before subsection (1):
"(0.1) Section 25 of the act is amended by adding the following subsection:
"Reference stayed
"(1.1) A reference under subsection 24(5) respecting an order shall not proceed if the hearings tribunal has confirmed, varied or revoked the order following a hearing requested under subsections 23(4) or 24(6)."
Reference on a review officer order is stayed once the tribunal makes a decision on the merits. It ensures that parties cannot move the matter to the tribunal and adjourn sine die or withdraw the application, and in this way non-compliance with an order can be dealt with by a reference under this subsection 24(5), until the tribunal actually examines and rules on the substance of the issue. So the tribunal would have to rule first before you could proceed.
The Chair: Further comments?
Ms Poole: To me this just makes a lot of eminent sense, that if you are going to have an appeal to the tribunal, you want that settled before deciding whether the office's order has to be confirmed, varied or revoked, so we would support this amendment.
The Chair: Me too.
Seeing no further comments, shall Ms Murdock's motion carry? Carried.
Shall section 16, as amended, carry? Carried.
Shall the title carry? Carried.
Mrs Caplan: I don't like the title.
The Chair: Nobody ever does.
Ms Poole: The pay equity betrayal act.
Mrs Caplan: That's what it should be called.
Ms Poole: The new title.
The Chair: Shall the bill, as amended, carry? All those in favour? Opposed? Carried.
Shall I report the bill, as amended, to the House? All those in favour? Opposed? Carried.
To get a fresh start on Bill 169, this committee stands adjourned until 10 o'clock tomorrow morning.
The committee adjourned at 1504.