FEDERATION OF WOMEN TEACHERS' ASSOCIATIONS OF ONTARIO
ONTARIO PUBLIC SCHOOL BOARDS' ASSOCIATION
UNITED STEELWORKERS OF AMERICA
CONTENTS
Tuesday 19 January 1993
Pay Equity Amendment Act, 1993, Bill 102
Public Service Statute Law Amendment Act, 1993, Bill 169
Ontario Nurses' Association
Ina Caissey, president
Lawrence Walter, research officer
Lesley Bell, associate director, government relations
Mary Hodder, associate director, labour relations
Federation of Women Teachers' Associations of Ontario
Lorraine Stewart, executive assistant, pay equity and collective bargaining
Ontario Public School Boards' Association
Gail Nyberg, treasurer
Carolyn Kay-Aggio, legal counsel
A. Janet Beer, director, labour relations and research
Ontario Federation of Labour
Julie Davis, secretary-treasurer
Carrol Anne Sceviour, human rights director, women's issues
United Steelworkers of America
Henry Hynd, director, District 6
Intercede
Fely Villasin, coordinator
Brant Street Daycare
Beverley Sobers, program coordinator
Trudy Binder, staff member
Nalini Patel, staff member
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
Lessard, Wayne (Windsor-Walkerville 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
Tilson, David (Dufferin-Peel PC) for Mr Harnick
Also taking part / Autres participants et participantes: Allan, Jane, policy adviser, Ministry of Labour
Mahoney, Steven W. (Mississauga West/-Ouest L)
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Campbell, Elaine, research officer, Legislative Research Service
The committee met at 0957 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): Let's call this meeting of the standing committee on administration of justice to order. We'll be continuing with our review of 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.
ONTARIO NURSES' ASSOCIATION
The Chair: Our first presenters are from the Ontario Nurses' Association. Good morning. Just as a reminder, you'll be allowed up to an hour for your presentation. The committee would appreciate it if you'd keep your remarks shorter than that to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, could each of you identify yourself for the record and then proceed.
Ms Ina Caissey: Good morning. My name is Ina Caissey. I'm the president of the Ontario Nurses' Association. With me are Lesley Bell, associate director of government relations, Mary Hodder, associate director of labour relations, and Lawrence Walter, research officer. As well, our legislative committee is present today. This committee does represent our membership across the province.
I will be keeping my comments brief today as we do want to leave more time for responding to questions.
As president of the Ontario Nurses' Association, I am here today to represent the views of over 50,000 staff registered nurses in this province. The Ontario Nurses' Association, as the voice of these registered nurses who work in hospitals, community health, industry, nursing homes and homes for the aged, brings a unique perspective to these committee hearings.
With a union membership composed primarily of women, we are appalled that this government would agree to perpetuate one of the serious wrongs of our society, forcing working women to carry the burden of wage discrimination. The government's proposed amendments under this legislation will effectively erode any possibility of ever achieving pay equity for our members. The proposal to postpone for another three years, until 1998, the deadline to achieve pay equity in the public sector is not only shocking but unacceptable. This government would never have supported such actions while in opposition.
Employers in the public sector were given a full five years to manage the elimination of historical pay inequities. Now the government is giving them eight years and expecting that working women will sit back and accept this major change in the original legislation. We will not. We expect this government to meet its original commitment to build on the progress made by the previous government towards full pay equity.
Last January, Premier Bob Rae reassured working women that the government was committed to pay equity. "I think it's important to send a clear signal that even in the toughest of circumstances we're not going to forget the social justice agenda." Then, last December, the Minister of Labour, Bob Mackenzie, confirmed the Premier's statements. The Labour minister said, "This government is fulfilling its strong commitment to correct the historic and systemic undervaluation of women's work."
But what we see before us in Bill 102 shows that the government has blatantly reneged on its promise to right the historical wrongs in women's wages. The amendments in the proposed bill do not merely delay pay equity; they begin to dismantle hard-fought gains. In our view, any amendments contemplated before the legislated comprehensive review in 1995 must be based on the fundamental guiding principles currently contained in law.
ONA has already put forward this position to the Minister of Labour in at least three separate submissions during the last three years. Unfortunately, it appears that the government has chosen not to hear us. In our view, Bill 102 is not only flawed but fundamentally misdirected. For example, the proposal to extend the deadline for achieving pay equity in the public sector from 1995 until 1998 is to break its pledge to working women. This deadline extension would also clearly go against the fundamental principles contained in the current law, in which affirmative action is to be taken.
We are extremely concerned that employers who should have and could have completed pay equity using job-to-job comparisons will now have a further monetary incentive to postpone and avoid job-to-job comparisons. Public sector employers we bargain with will be able to save three years of retroactive adjustments by finding a way around job-to-job comparisons and by using proportional value effective January 1, 1993, instead of January 1, 1990.
We also reject the government's amendments regarding proxy comparison methods. The proposed initiatives contravene the fundamental principle of comparing the compensation of female job classes to male job classes for pay equity purposes. Comparing female job classes to female job classes is unacceptable.
Postponing pay equity comparisons for the proxy method to 1994 effectively means that the wage gap has probably narrowed substantially between our members and their comparators. Why? Since 1990, many employers have simply frozen male wages or made other reductions.
It is also insulting and detestable that there is a proposal before us to prescribe limitations for the current obligation to maintain pay equity. As this government knows full well, the Ontario Nurses' Association has entertained extensive litigation on the issue of pay equity maintenance before the pay equity tribunal in cases involving Glengarry and Lady Dunn hospitals, and now these hospitals are having the tribunal's decisions judicially reviewed. The requirement to maintain pay equity must be dealt with by the tribunal, which has been given the power to interpret the legislation. In addition, we strenuously object to the amendment providing for retroactivity when limitations are prescribed on the requirement to maintain pay equity.
Taking rights away is an objectionable matter that this government should not take lightly. In closing, I want to state as strongly as possible that this organization expects the government to maintain and build on the progress towards the implementation of full pay equity. Anything less is unacceptable.
We would be happy now to answer any of your questions.
The Chair: Thank you. Questions from the government side? Ms Murdock.
Ms Sharon Murdock (Sudbury): Thank you very much for coming in. I was trying to read as I was listening to you. I know that you have summarized your presentation, but on page 5 the paragraph states: "It is for this reason as well that we submit the proposed definition for when pay equity is achieved using proportional value." You propose "to delete the phrase `representative group of male job classes' and replace it with `male job class or male job classes.' It may be feasible to undertake proportional value comparisons using a male job class in some circumstances." I'm wondering if you could expand on that in terms of whether it's the language or the particular group.
Mr Lawrence Walter: It primarily is the particular group. We're thinking primarily of a nursing home where the salary structures have been more or less maintained the way they have been for some time and where we think it would probably be feasible to make a comparison to the administrator of the home, which has traditionally been a male job. You could do that without getting into wage lines and that sort of analysis for proportional value.
Ms Murdock: So this is specific to nurses or the nursing association rather than a piece of legislation that governs all kinds of workplaces?
Mr Walter: Certainly our comments are specific to the members we represent, who are nurses.
Ms Murdock: I'm presuming that you worked this out. Have you looked at how that change in language would affect other workplaces or have you looked at it only in relation to the nursing association?
Mr Walter: Our proposal is to leave it broader than just a single male job; our proposal is to leave it as a single male job or more than one male job. What we don't really like is the "representative group" of male jobs, because we have found already in our past experience that we're running into all sorts of litigation over terms like "representative group."
We're saying we think that in some circumstances you can do proportional pay equity using one male job and in other circumstances you may need more than one male job, but to get into definitions about a group of male jobs, we think, is leading into litigation rather than furthering things.
Ms Murdock: Yesterday we had the Equal Pay Coalition come before us. Much of its presentation was on language, the use of certain words such as "proxy" and so on. I haven't read your whole presentation yet and I will do that, but are you also concerned about that and, if so, what specifically?
Mr Walter: I certainly understand the Equal Pay Coalition's view on language, but our position is that I think that language has been in the public arena for at least three to four years, and to really try to change it at this point may lead to more confusion than leaving it the way it is. So we really haven't made in our submission any points on language other than the representative group of male jobs.
Ms Murdock: That's one of the reasons why I honed in on that.
Mr Walter: And again in that case it's because of our experience in litigating other language like that.
Ms Zanana L. Akande (St Andrew-St Patrick): Sharing my concerns around your statement about perhaps using one male job, the idea of using one doesn't really allow for a kind of base. I mean, don't you see a danger inherent in that?
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Mr Walter: Well, there are really two points. The first point is that we did leave it broader so that in some workplaces you may need more than one male job. In nursing homes, our view has always been that nurses look to the administrator and compare their jobs to the administrator. I would also like to say that in hospitals, nurses look to doctors as their comparators, but unfortunately doctors aren't employees of hospitals. So we would extend this analysis to hospitals if we could, but it's not possible. But certainly in nursing homes, that is the top job in the nursing home. The administrator is the job nurses look to as being a job they think they would be able to proportionately compare to.
That's why that analysis is set out for a single male job in nursing homes. In other workplaces, it may be that the female-dominated jobs look to other male-dominated jobs as a possible comparator or a range of male jobs, but in nursing homes it is certainly the top job, the administrator job, that they look to.
The Chair: Further questions? Mrs Caplan.
Mrs Elinor Caplan (Oriole): Yesterday we had some questions that were raised about the comparators of doctors and nurses. I know it's been said that in the area of primary care nurses are competent and able to provide up to about 60% of the services that primary-care doctors provide and do so on a fairly regular basis in the provision of care. There were questions around the difference of income. We know that 90% of doctors are on a fee for service and that their average income in Ontario is about $100,000 or $125,000 annually.
What is the average income for nurses or nurse practitioners who would fall into that comparative category in Ontario? Do you have those figures among your membership?
Ms Lesley Bell: The top wage rate for nurses with 10 years' experience for our association is $52,000.
Mrs Caplan: Ten years' experience?
Ms Bell: Yes, and about 48% of our membership is at that level.
Mrs Caplan: Forty-eight per cent, and that's with 10 years?
Ms Bell: Or more.
Mrs Caplan: I asked the question more for the record because there were some questions around those comparators and I know that the committee would be interested in having the numbers. We didn't have those yesterday.
I don't have a lot of questions, and I know that Ms Poole wanted to ask some questions as well. You haven't made any comment on Bill 169, which is the companion piece. While it says for the purposes of pay equity and for other reasons the government will determine who a crown employee is, there's some question as to whether or not this will have any effect on nurses.
I'm just wondering whether you've looked at that and if you have any comments on that legislation as well. It goes far beyond pay equity. While it is packaged in the guise of pay equity, it has, in my view, more to do with ambulance drivers and agencies of government as opposed to nurses in particular. But I wondered if you'd looked at that.
Mr Walter: Yes, certainly we did, but our position has been that when we're trying to expand the definition of an employer under the Pay Equity Act, we've done that to get access to male comparators, but outside of the public service, the government. For instance, I'm sure the committee is aware of the Haldimand-Norfolk case, where we did argue for the police to be considered as employees of the region. Our intent was never to argue that the government was the employer of the nurses that we represented and so that's why we haven't made any comments on that bill.
Mrs Caplan: Okay. So you really don't see that legislation as having any impact on nurses?
Ms Bell: Certainly not the ones whom we represent. We stuck strictly to the membership that we're accountable to.
Mrs Caplan: I'm glad you clarified that. There was some question as to what that case actually intended to do and what the role of the province was when it came to that one, so I thank you for that clarification.
Your brief is excellent. I was accused yesterday, as a member of the opposition, of asking embarrassing questions or questions designed to embarrass the government.
Mr David Winninger (London South): We didn't say that.
Mrs Caplan: I don't intend to be any nicer today.
Mr Winninger: Point of order, Mr Chair.
Ms Dianne Poole (Eglinton): She didn't say you were.
Mr Winninger: She said the opposition accused her; it was a presenter.
Mrs Caplan: You can see how sensitive they are.
The Chair: Order, please. Order.
Interjections.
Mrs Caplan: And justifiably so.
Your brief is excellent. It speaks volumes. My question would be: Do you think it would be a fair comment to say that from your perspective this legislation is not progressive, but in fact it is regressive?
Ms Bell: Absolutely.
Mrs Caplan: You do not believe it is in the interests of women or nurses in particular?
Ms Bell: Absolutely not.
Ms Poole: Thank you again for coming today. Certainly your comment at the beginning that you offer a unique perspective is very true. I've looked at a number of your comments, and I think they very successfully point out areas in which this legislation is in fact a step backwards.
I'd like to ask you about a few of your comments. First of all, on maintaining pay equity, you made the statement, "We find it insulting and detestable that the government is proposing that limitations might be prescribed for the current obligation to maintain pay equity."
When I was first reading that statement, I thought it perhaps referred to Bill 169, where the government is setting parameters for when it may be named as an employer, for instance, for purposes of pay equity. But then I realized that I think what you're referring to there is the fact that under the legislation passed in 1987 there were certain obligations that were to be met. For instance, by delaying implementation for three years in the broader public sector, this government is actually reneging on some of those obligations. Would you like to further elaborate on what you mean by "failing to maintain pay equity" and whether what I've gathered it to be is actually correct?
Ms Mary Hodder: I think the comment that you're referring to is specifically referring to the changes in the bill as we read it, specifically subsection 6(5), which I will read for you: "The requirement that an employer maintain pay equity for a female job class is subject to such limitations as may be prescribed in the regulations." What are they? That's a big area of concern. We perhaps read certain words with a reasonable degree of suspicion, and when those are passed under our eyes, they certainly hop out of the page, and it's on that basis that we are making the comment contained in that paragraph you referred to.
Ms Bell: If I can just add to that. Certainly our feeling is that it's the pay equity tribunal that has the authority to make the decisions on that, not by regulation. They're the ones who are supposed to be making those decisions.
Ms Poole: I think the point you make is quite valid. I am concerned any time that things are contained in regulation which might tamper with the spirit and the intent of legislation. Regulations were originally formulated in order to give the how-to manual: how to implement what the legislation said and provide backup information. But my concern when so many sections of this act are left open-ended because they're to be prescribed in regulation is that the government could actually impose limitations. They could change the spirit; they could change time lines; they could do many things if they're not spelled out. One of the concerns we had with the original Bill 168, which is now carried forward with Bill 102, is that there are a number of areas where it is prescribed by regulation. So I'm glad you brought that particular one up.
I'd like to also ask you about your comments on proxy. You've been extremely critical of the government's approach to proxy comparison. In fact, I think one statement you make is particularly well taken. It says: "The proposed initiatives contravene the fundamental principle of comparing the compensation of female job classes to male job classes for pay equity purposes. Comparing female job classes to female job classes is unacceptable."
I think basically what you are saying in that sentence is that the original intent of pay equity legislation and the definition of "pay equity" was to redress systemic gender discrimination relating to female job classes and male job classes within the same establishment. What the government has done with the way it's come out with proxy is compare female jobs to female jobs, which really gets away from the original intent of pay equity. I just wondered if you'd like to comment on that or in fact any of the suggestions you've made for changing the proxy comparison method, as the government has proposed it.
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Mr Walter: I think you're quite right. Our concern is that the original intent of the act was to compare female jobs to male jobs, and we think proxy pay equity comparisons should be done in the same manner. Really, I think if you took the kernel and nugget of what they have in proxy and, instead of female to female, changed it to female to male, it may be workable.
The other part of the equation that we see has to be in there is you have to have, in a collective bargaining situation, the parties in that collective bargaining situation deciding what information is necessary for them to conduct pay equity comparisons. The way it is set up now, it looks like the potential proxy employer would be in a position to identify those female jobs that would be comparators to other female jobs. We just don't think it's an acceptable approach. A proxy employer may have no interest in assisting the parties. We think it should be the parties that are involved in that bargaining situation identifying the information and actually conducting the comparisons.
Ms Poole: You've made the statement on page 1, "We will not support government initiatives that roll back progress made towards the elimination of gender-based wage discrimination." I think you've already replied, in response to Ms Caplan's statement and question, that you feel there are many aspects of Bill 102 which are a step backwards.
If, for instance, amendments were proposed which would bring back the original time line for the public sector, and some of the other suggestions that you've made -- if those amendments are rejected by the government, would it be your recommendation that we question whether to support Bill 102?
We're opposition members, so in the final analysis we have to decide whether we want to support it. On second reading, which is basically debate on the principle of the bill, the Liberal caucus did support pay equity extension in principle. We have a lot of problems with what the government has done and in fact the manner in which it's gone about it, and we feel it really has betrayed both the principles and women in how it's done it. But on third reading, we actually have to decide whether we can support this bill in its current form, even though, in our opinion, there are many aspects of it which are a step backwards.
Ms Bell: Certainly, as far as our membership is concerned, we do not support the bill and we would urge you not to support it. It does not maintain the principles we feel the original bill did. It's retrogressive. It doesn't address the male-female gender bias and systemic discrimination that's gone on. We do not support this bill and we would urge you not to as well.
Mr Ted Arnott (Wellington): Thank you for coming in this morning to present your concerns to us. I want to compliment the Ontario Nurses' Association. I think you do an outstanding job on an ongoing basis of keeping members of the Legislature informed of your concerns in a very positive and constructive way.
Today you've been very harsh with the government. You've used very harsh language. You haven't used the word "betrayal;" that has been unsaid. When I read in preparation for this committee, the Premier a year ago in the Globe and Mail, January 17, 1992, used the quote that you said he had indicated, promising pay equity. A year later, here we are and things have changed. Would you characterize what's happened as a betrayal to nurses?
Ms Bell: We're certainly not happy with it and I actually think it is fairly retrogressive. If you want to portray that as betrayal, then I'll leave you to say that. We're certainly not happy with what's happened. We're very concerned with the changes and do not support the government's change.
Mr Arnott: It appears to me to be a betrayal. I'll say it.
Ms Bell: That's fine.
Mr Arnott: "Systemic discrimination" is a term that is used in the context of pay equity and it's the reason for the need for pay equity. I've seen a number of definitions, but I'd like to ask you: What is your definition of "systemic discrimination"?
Ms Hodder: Gee, I guess we're going to go over our hour. There are various definitions for "systemic discrimination." Certainly, I believe that the broadest one is most appropriate. It applies in various areas for various things. In this context, I guess one would refine it to the discrimination that the system historically, currently, presently has, and, God knows, in the future will continue to have on the woman's earning power vis-à-vis the male earning power. That's a very refined definition for purposes of this.
Mr Arnott: On page 2 of your brief, the second paragraph said, "By moving in the direction of Bill 102, this government has blatantly reneged on its promise to right historic wrongs in women's wages." It seems to me that the pay equity concept and the pay equity initiatives by various governments in the past have been efforts, I guess, to right historical wrongs. Would you agree with that?
Ms Hodder: Where is it?
Ms Bell: Sorry; we have ours single-paged, and we copied yours double, so our pages are different and I apologize.
Mr Arnott: Page 2: "By moving in the direction of Bill 102" -- it is the second paragraph on page 2.
Mrs Caplan: The pages are actually numbered.
Ms Bell: Okay. We've got a different copy.
Mr Arnott: "This government has blatantly reneged on its promise to right historic wrongs in women's wages."
Mrs Caplan: It's just above "Guiding Principles."
Ms Bell: Yes, we found it.
Mr Arnott: My question was, it seems to me that pay equity is a direct initiative by the government to right historical wrongs. You would agree with that?
Ms Bell: Absolutely. Our concern is that any progress made under the old legislation is being backpedalled by the new legislation, and in fact it's not addressing the concerns that the initial legislation was supposed to.
Mr Arnott: Okay. What do you think is the most important issue facing nurses today in Ontario? Would it be the preservation of existing jobs or would it be issues surrounding patient care or would it be pay equity? The most important issue. It's a tough question, I know.
Ms Bell: Certainly, as far as a day-to-day issue is concerned, preservation of jobs is a major concern for our membership, with the changes in health care. Having said that, one of the major problems our nurses face is how this relates to patient care, and our concerns about downsizing, certainly in the institutional sector, are the effect and the outcome on patient care. Balancing the budget is certainly important, but not at the jeopardy of patient care. So while our nurses are kind of caught in a dilemma of wanting to keep their jobs, they're also very concerned as professionals as to how those changes affect the patient.
Mr Arnott: The 1992 budget -- we're still in that year; the fiscal year, I guess, ends in March -- projected spending something at in excess of $50 billion and projected a deficit of $9.9 billion. 1his past week the government borrowed over $3 billion, using a Wall Street broker, in excess. If you add up the borrowing they've engaged in in the past year, it's over $9.9 billion. It's something like $12 billion. Nurses, I assume, are very concerned about that as well, the long-term effects of that.
Ms Caissey: Most definitely. I think, not only as nurses but as taxpayers, we are all concerned about that. But we are also concerned about what it will do to us in the future as a group.
Mr Walter: If I might make a comment on that as well, I think you should keep in mind, though, that certainly our employers knew about pay equity at least -- what? -- in 1988. They were supposed to put aside a certain percentage of their payroll for nurses, and many employers in the hospital sector simply haven't done that.
Mr Arnott: Hospitals were also under the impression they were going to receive more in the way of transfer payments than they're getting this coming year.
Mr Walter: Certainly, in the years that I'm talking about, they were receiving those transfer payments and still were not keeping the money aside for pay equity.
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Ms Bell: One of the things we point out in our brief is that had this job-to-job comparison happened in 1990 when the hospitals were receiving the moneys, this would have been dealt with. We're concerned that by the lack of willing negotiating, and that not happening, we're now seeing a change in legislation which is going to dismiss any chance at gaining that, and the excuse of no transfer payments now doesn't address what happened in 1990.
The Chair: Thank you, Mr Arnott. It seems that another question has come up. Mrs Mathyssen?
Mrs Irene Mathyssen (Middlesex): Yes. Thank you for coming. I just have some sort of technical questions to get things clear in my mind. I come from the teaching profession, where there isn't this problem in equity; it's based on qualifications. I was wondering if you could help me. For the nurse practitioner, I understand the level of competence and the quality of training. I just wondered, what is the training period for someone who you mentioned would be currently in the wage range of $52,000? I know where you are now, and I know we have a long way to go, but if you could explain what recent increases -- it seems to me that you had an increase back in late 1990 or early 1991 or in that vicinity. Where were you previously in terms of pay scale?
Ms Caissey: The people who are currently earning $52,000 would have a certificate of competence with the College of Nurses of Ontario and they would either be graduate of a three-year community college program or have a BScN.
Mrs Mathyssen: A BSc would be four years, right?
Ms Caissey: Yes, correct.
Mrs Mathyssen: Okay.
Ms Caissey: And prior to our last negotiated --
Mrs Caplan: And 10 years' experience.
Ms Caissey: And 10 years' experience. Thank you. Yes.
Mrs Mathyssen: It's the same with teaching. You have your certificate and then your increments come with years of experience, 10 years being the framework.
Ms Bell: Absolutely, but can I point out that the teachers did that through collective bargaining, and they addressed that. That still doesn't address the inequity of the male-female bias in job payment. For our members, although they increased in our last collective agreement to the $52,000, that was through collective bargaining. If you recall, there was a nursing shortage at the time. After wage freezes and other government initiatives, we're finally getting paid for the work we do. This didn't address the inequities in payment that pay equity addresses, so I don't think you can compare the two without realizing that one was gained through collective bargaining, not pay equity.
Mrs Mathyssen: But you said pay freezes prior to, what was it, 1991?
Ms Bell: There were two years of anti-inflationary legislation we were under back in 1982 and 1985, I think, somewhere around there. I don't have the date, but there were two rounds of freezes where there were no increases.
You've got to realize that at a negotiating table you've got two parties. For the most part, the majority of our members fall under the hospital sector. Dealing with the OHA and convincing it and getting collective bargaining is a different forum, and while we did get a wage increase, a substantial one, for our long-term employees, we were abundantly clear at that point in time that it did not address pay equity, and that's still our stance.
Mrs Mathyssen: In terms of the job, though, you were significantly behind at that point.
Ms Bell: Absolutely.
Mrs Mathyssen: And there's still a long way to go. That's what I'm trying to understand, where you were and where we have to go from here.
Ms Bell: You're absolutely right, Ms Mathyssen. If I can point out, at that point in time we only had from our beginning wage to our end wage a $4,000 difference. So you started at $32,000 -- sorry -- you started at $32,000 and ended at $40,000, so it was $8,000. The $32,000 was frozen. The start wage for nurses was frozen, and we now go to $52,000. What we tried to convince and were successful in convincing the OHA of was that this was a recognition of a career as opposed to just a job and that these people were there and providing a necessary service.
Mrs Mathyssen: I must say the battles you fought in that regard aren't unlike the battles some of us fought. Anyway, I appreciate that; it helps.
Ms Hodder: Can I just make a bit of clarity for the members of the committee? There are two things I would like to bring out. Number one is this $52,000 that's been floating about, this number, $52,000: I don't want you to think nurses have been well paid for very long, because in actual fact that salary's only April 1992.
The second thing is that I listened to some of the questions and comments. I want you to know that the extension of the time from 1995 to 1998 is not an idea that has been contrived in our minds. In actual fact, we are in the process of trying to get a plan with an employer who is now already, even in the absence of the legislation being law, saying that he has until 1998 to do it. So these are very real matters.
Mr Winninger: I can certainly understand and appreciate the arguments you've made today. I am a little perplexed, though, that you do not show any support for the bill. To come back to Ms Poole's comment earlier, the minister candidly admitted yesterday that the effect of the legislation would be to partially delay payment equity laws, but at the end of the day, three years later in 1998, the tab would be the same. I'm just wondering whether by rejecting this bill you're not essentially freezing the status quo and thereby diminishing whatever access is available to pay equity for your organization and other women.
Ms Caissey: I think, with this bill, our lack of support isn't with the principle of pay equity; I think it's with the amendments that have changed what was set out in Bill 168. Certainly, in delaying the implementation you are asking women in this province to continue subsidizing the hospital system with poor wages well for us, as through our taxes, and that isn't acceptable. We really feel the bill has to go ahead with the time lines that were previously set out.
Mr Winninger: I think I understand your point. I just wanted to ensure, in case Hansard didn't pick up my interjection earlier, that you don't go away misled, in that Mrs Caplan had said that the government objected to embarrassing questions asked by the opposition yesterday. It was a presenter who, when asked a question by Mrs Caplan, said her question was designed to embarrass the government. We're quite tolerant of questions.
Mrs Caplan: I'd ask you to check Hansard. That's not at all what occurred. In the comments I made I said I was accused yesterday of framing questions that were embarrassing to the government. That is accurate and it stands as stated. The fact that you're overly sensitive, Mr Winninger, is a reflection of what a terrible bill this is.
The Chair: Thank you, Mrs Caplan.
Mr Winninger: Mr Chair, I just wanted to ensure that the record was accurate, for the benefit of people who weren't here yesterday.
Ms Poole: What you stated is not accurate.
The Chair: Do you have a comment, Mr Walter?
Mr Walter: Yes. I might make a comment just to clarify the situation a little bit. In our submission to you, the argument we're making is that we only support pay equity as it exists in the current law, but if that pay equity can be extended to groups that can't fit the pay equity rules in the current law, like proportional value -- we support proportional value and we support proxy. What we don't support is extending the deadline for the implementation.
We think that proxy and proportional should be retroactive to January 1, 1990, the same rules as in the current law, and that pay equity should be achieved by 1995. We certainly don't want you to go away thinking that we don't support those two principles, because we do. We support proxy and we support proportional, but we only support them when they're done under the rules in the current law, and that also means comparing female jobs to male jobs.
Mr Winninger: Thanks for the clarification.
Mr Gary Malkowski (York East): Thank you for your presentation. I appreciate your comments about the time line for pay equity. I understand your concerns there. I'm wondering if you agree that the proposed legislation is in fact an improvement on the pay equity legislation as compared to the legislation that was presented by the previous government in 1987.
Ms Bell: I think we've already stated that no, we think this is retrogressive. The extension of the payout times and some of the other things that we mention in our brief are not supportive of the previous intent of the legislation and we don't agree with that comment.
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Mr Malkowski: Can I just clarify then? You're saying that you do not agree that the proposed legislation is any improvement compared to the current pay equity legislation passed in 1987?
Ms Bell: I think Lawrence just said that we support the principles of proxy and proportional, but we do not support the changes that you've made that allow the current system to be extended to 1998 and the change to a female-female comparison as opposed to a male-female comparison.
Mrs Caplan: To help clarify the situation and why you see this as a step backward, ever since Gerry Phillips in March 1990 announced that proportional was going to be an amendment to the legislation, many employers have already begun using proportional and it has been negotiated in a number of plans. We heard that in the presentation from the ministry. So effectively today, in the existing law, proportional value is permissive. It's not mandated, but because of the signal in 1990 that it was going to be part of the law, it's already in practice.
By extending the time lines, while today you have a permissive approach to proportional being negotiated at the bargaining table within the existing time line, it is a step backward when you extend the time line, which then allows those plans to be delayed by three years. That is one example of a backward step. Would you say that's a fair categorization of why you see this as a backward step as well? I know the frustrations that nurses have had in trying to negotiate plans. We discussed that yesterday as well. But I'm asking if aside from that you are aware of plans that had been negotiated using proportional value.
Ms Hodder: I was going to say to you that in the several years that I've been out there slogging, even though there has been a suggestion to employers that they address their minds to proportional -- in fact I thought it was one hell of an idea -- I have not had any success with any employer in doing proportional, absent it "being the law."
In addition to that, overall there are individual improvements with this bill in individual areas, but the overall impact of it as we see it, particularly with the dates and the other things we've mentioned, is retrogressive. I'd just like to clarify that.
Mrs Caplan: I'm interested in your experience. I know that you've generally had difficulty, as I said, in the negotiation of plans. I am aware there have been some plans that have been successfully negotiated, primarily where there have been large employers with complex job classification systems. The pay equity plans have incorporated proportional value successfully in other areas, as I say.
Ms Hodder: We have in excess of 180 no-malecomparator, all-female-establishment plans that have been just put on hold pending the amendments on proportional and proxy.
Mrs Caplan: And on those you feel that the net effect will be a delay by three years in the negotiations as a result.
Ms Hodder: Those plans have been signed since 1990 and 1991. If you're going to make it a subsequent date, then I think the evidence speaks for itself.
Mrs Caplan: I guess one of the concerns I have is that this bill as it has been presented could be perceived as being quite deceptive because of those kinds of parts of it, where if you look at one particular section it may look like it's an improvement, but when you look at the whole package, what I hear you saying is that it is a significant backward step and that it will delay the ability of nurses and other women to achieve pay equity in Ontario.
Mr Walter: Yes. Certainly in our experience, what has been happening is that not only have employers been freezing male wages, but they've also been eliminating many of the male jobs that would have been comparators in 1990. By the time 1993 and 1994 roll around, there just won't be those male jobs any longer. Even if they are there, they're being paid about -- I could give you dollars, but they're being paid substantially less than they should have been, except that employers have been rolling back their wages and freezing them, because they know at some point they'll probably end up being a comparator.
Ms Bell: If we can point out, the majority of the male comparators are non-union and are in a position where their jobs are pretty tenuous. They are unlikely to object to being either red-circled or rolled back. In fact they're defeating the purpose of pay equity in that regard. People are concerned about their jobs and are not likely to object, while everyone else in the institution gets a pay raise.
Mrs Caplan: We're going to be hearing later in the hearings from the Ontario Hospital Association and I'm just wondering what your statistics are. I've heard from them in other meetings as well. What is the number of nurses who have lost their jobs because of the policies of the NDP government?
Interjection.
Mrs Caplan: In transfer payment numbers.
Ms Bell: I think I'll phrase this more in the number of nurses who have lost their jobs for a variety of reasons. One may be the transfer payments, but certainly our other concern is how the funds the Ontario Hospital Association gets are managed. We've always said there's enough money in the system. It's how it's distributed, and we still firmly believe that. We may want to rethink it next year, but at this point in time, that's how we still stand.
Our last figures according to HTAP, the Hospital Training and Adjustment Panel, which deals only with hospital nurses, indicate that somewhere around 2,700 people have lost their jobs. Our membership in ONA has decreased in the last year by 2,800. So we have some concern about the figure, because it doesn't capture our part-time workforce, which is almost 50% of our membership. Although there's the comment that a lot of the jobs are going to the community, we have public health nurses and community health nurses who are being laid off as well in this downsizing and change to substitute care providers. We're very concerned about that.
Mrs Caplan: That question, by the way, in case Mr Winninger missed it, was designed to embarrass the government.
Interjections.
Mrs Caplan: You should be embarrassed that 2,800 nurses have lost their jobs.
The Chair: Order, please.
Ms Poole: Just to change tack a little bit and get out of that particular one, I think the reason there may be some confusion on the part of government members as to whether this is a progressive step forward or a retrogressive step backward comes from the fact that nurses are in a different situation than, say, child care workers. Child care workers were excluded from pay equity legislation in 1987 because they were all-female occupations, while nurses, through many battles I might say, have been able to secure some pay equity advancements.
For your particular profession, which has had access to pay equity even though you've had to fight pretty hard for it, when you look at this legislation and see that it's going to be delayed for three additional years, that to you is a fairly major step backward, while child care workers who might not be included at all in any pay equity legislation feel this is still a step forward even though they might want to make changes to it.
I don't know whether that is an accurate summation of why there's some confusion as to whether it is progressive or retrogressive or anything else. It would seem to me that has some bearing on it, that you feel you have some protection under the current legislation which would be negated by the delay of an additional three years.
Ms Bell: Certainly as it relates to job-to-job comparison in the hospital sector, although we've only got two signed-off plans where anybody has actually got any money, and that's been frozen because of the maintenance issue. That's another issue of concern we have.
I understand your comment as it goes to child care workers and how they will be affected by proportional and proxy. I can point out though, as Mary said, we have over 180 files that are on hold awaiting those two principles as well because they're all-female establishments.
I'm not sure that we have at the tips of our fingers how many members that actually translates into. I think we've already said we certainly support the principles, but we don't like the fact that they're being delayed. By the time it comes into effect, we don't know how many changes will have occurred in the workplace. In fact, will we ever see pay equity is our question. We see the possibility of that not happening as it's now currently going.
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Ms Poole: Certainly when proportional value was announced as an intention of the Liberal government in March 1990, for one thing we couldn't foresee what was going to happen in September 1990, but I can assure you it would not have taken three years to reach this stage and then to find, on top of that, that the government has delayed the time frames in the original legislation.
So I think what the government is purporting to be gains has actually been a betrayal in many ways. I won't ask you to comment on that, because it's a very partisan and political comment. That's our prerogative and I don't feel we should put you in the position of having to comment, but I do think that part of the reason for the confusion is that you have made gains which you now see being clawed back because of that three-year delay.
Is there time for one last, brief question? When you referred to several litigated decisions regarding the nursing profession -- and you've obviously had to fight hard for a number of the gains that you've made -- do you see an erosion of some of the powers of the Pay Equity Commission or the possibility, say through regulations, that might take away from the gains that you've made?
Mr Walter: Really, that's one of our arguments on the maintenance issue, that the tribunal was set up, as far as we understand, to ensure that the parties had a fair hearing on issues that they were unable to agree on and areas in the law that were open to interpretation, and we've pursued that route for a number of issues, maintenance being one and definition of the employer being another.
The government's planning on changing the definition of who can be a government employee for pay equity purposes -- I won't comment on that since it doesn't really affect our members -- but certainly on the maintenance issue we think the litigation is still ongoing. The two hospitals were unsuccessful at the tribunal on the issue and now they are judicially reviewing both of those decisions, and we don't have a decision yet on that. So we think that at least that process should reach its final conclusion before the government decides to regulate limitations on that principle. Certainly regulating limitations on a principle that is established, a right that's established in the law, is unacceptable to us as well.
Ms Bell: If I can just add to that too, I think one of our major frustrations is the fact that the amount of money spent on litigation could have addressed the pay equity issue, and that's very frustrating, not only for us but for everybody who believes in pay equity and the solution.
Ms Poole: Somebody had told me that it costs around $100,000 to take a case to the tribunal.
Ms Bell: Our association has spent in excess of $2.5 million arguing over the current legislation and its implementation.
Ms Poole: So it's been a very extensive and expensive process.
Ms Bell: I was interested in Ms Caplan's comments about people already negotiating proportional. I mean, we can't get job-to-job when, with the tribunal decision implemented, it would be very nice to have an employer who felt willing to go beyond the current legislation, and we don't see that.
Ms Poole: I think in your particular case there's been a real reticence to go any further than they have to, but we've heard from some private sector employers who in fact have already implemented proportional plans in anticipation. It was announced by the government three years ago that it was going to do it, so they thought, "Well, let's get it out of the way."
I think that's what the reference is to, but there's no doubt that any time you have new legislation it can be very expensive setting the precedents and defining the parameters. I think the Ontario Nurses' Association is to be commended. Not only did you put in the money, but you also put in a lot of perseverance and effort in trying to be the pacesetter for pay equity and ensure that the women in your profession got it. You are really to be quite commended for all you've done.
Ms Bell: Certainly our members are fully committed to the philosophy of pay equity and have supported that principle in putting moneys towards that. I think our membership should be commended for feeling that way about it, and I thank you for that comment.
The Chair: Ms Caissey, Ms Bell, Ms Hodder and Mr Walter, on behalf of the committee I'd like to thank you for taking the time out this morning and coming and giving us your presentation.
Ms Bell: Thank you.
The Chair: Thank you very much.
FEDERATION OF WOMEN TEACHERS' ASSOCIATIONS OF ONTARIO
The Chair: I'd like to call forward our next presenters from the Federation of Women Teachers' Associations of Ontario. Good morning. Just a reminder, you'll be allowed up to an hour for your presentation. The committee would appreciate it if you'd keep your remarks slightly briefer than that to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, please identify yourselves for the record and then proceed.
Ms Lorraine Stewart: Good morning. My name is Lorraine Stewart and I'm an executive assistant with the Federation of Women Teachers' Associations of Ontario. We represent the 42,000 women teachers who teach in the public school system in the elementary panel. With me today is Wendy Matthews and Jan Kainer. We have a fourth person, Mary Bruce, but she seems to have disappeared. I think she'll show up in a few minutes. I'll be doing most of the presentation, however.
I think you have our response before you. Before I start, I want to just make a few comments. In general, we're in support of this piece of legislation in that we, like many other groups, have been waiting quite a long time for the promised changes to the Pay Equity Act, because, as you are probably well aware, ever since the passing of the original act, something was promised to be done for the people who were still excluded.
What that thing would be was discussed at some length. Over time it seemed to jell around the the concepts of proportional, and then proxy, comparisons. The Liberals did some work on that. There were a lot of discussions. There's a lot of research done by the Pay Equity Commission itself in seeing how the act was starting to play out. We're now looking at the second piece of draft legislation from the NDP government.
We're in support in that we're in support of changes that will extend the coverage of the act. I say that because most of our brief will read kind of negatively. What we've tended to focus on are those things about this piece of legislation that we think need improving, those parts that we don't agree with. I've left unsaid the fact that, in general, we agree with the purpose of the legislation. I haven't listed every clause we agree with. I think you can read into it that if we don't say we disagree, we agree with it.
One of the concerns we've had since the very beginning is that no one has ever been able to come up with anything that would address the issue of those people in the private sector employed in establishments with fewer than 10 employees. It just never seemed practical that one of these methods would be applicable there, so what we are proposing -- and I believe you've probably seen this before from other members of the Equal Pay Coalition -- is a clause which would allow those people to lay complaints.
While the general legislation is a proactive piece of legislation, those people would be able to complain if they felt they were being discriminated against. It would allow them at least some access to the pay equity legislation on the basis of doing work of equal value to male employees. That's on page 3. We would have an addition to the act that said employers are prohibited from discriminating on the basis of gender in the compensation of employees.
As you know, the current legislation -- not the pay equity legislation, but other legislation -- only applies in the case of being paid equally for equal work -- the same job, in other words -- and we want to get into the whole concept of work of equal value.
One of our other problems with the proposed legislation is something that has been there ever since the tabling of Bill 168, which is the move to try to protect the crown from being defined as the employer of groups who are able to meet the Haldimand-Norfolk test or any other test the tribunal has been able to set up.
We come from the point of view that the Haldimand-Norfolk test is a fairly rigid test and it has required, for those groups that have been able to meet it, quite extensive litigation before the tribunal and quite extensive research. If people are able to go through all of that and prove that in fact behind their employer is the province as an employer and that that's in fact the employer that sets most of the criteria that set their wages, then they should in fact be able to access comparisons within that major group.
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What we would like to see is this whole section left unchanged and let those groups which are able to go through that route do so. It has actually proved not to be very widely used. Only a few groups have been able to meet those very rigid standards in the case of being compared to the province. Several groups like libraries have been able to prove it as far as municipalities being their ultimate employers.
Another concern we have is that there are several references, and I've listed them all together on page 4, to passing regulations or defining what maintenance means. We have a concern about this too, because once you get through all the months and sometimes years of work that it takes to get a pay equity plan in place, you very quickly learn that you can lose it all the very next year through various connivances to do with maintenance and you do hit this very quickly.
What we would like to see is this section of the original act left unchanged, so that people can prove that maintenance issues are at play there, that they will be able to use the act the way it is and be able to take their case to a review officer or the tribunal and make a case. We don't want to see rules and regulations about maintenance that can then be further manipulated.
Some of the examples that we've hit are of course that once you've found a comparator, that job will disappear or that job suddenly doesn't seem to get the same wage increases that other groups around it get or they change the job description for the comparator, so suddenly now it doesn't suit you as your comparator any more. There are all kinds of ways that maintenance can be manipulated to the detriment of pay equity plans.
Our major problems with Bill 102, though, deal around the deadlines issues. We've said it right here, that we're extremely concerned with the fact that somehow, in a bill that was supposed to be dealing with extending rights to people, all of a sudden rights that we already had are being removed. One of them was the bit about the crown being the employer, but a very serious one is this sudden extension of three years to the time it takes to implement pay equity plans.
We're in the position, and a lot of people are in the position, of having signed plans, plans that have been costed, plans that have been negotiated, and part of those negotiations dealt with the deadline of 1995. Now all of a sudden, that one component is being changed. From our point of view, it's being changed to the benefit of the employers, without regard to the fact that it was only one component.
When we were negotiating those plans, that component was probably, most likely, weighed off against other components in the negotiations. So there's a basic unfairness of allowing that component to be changed and leaving everything else the same. What about the tradeoffs that were made? What about everything else that was worked around that?
I'm saying that in context of the fact that I think our experience has been that most of our plans weren't actually going to 1995, so as a group we don't have any particular vested interest in the deadline being extended, but we can see it being basically unfair to those groups that did negotiate to that deadline, especially since they are now three years into the whole business and they should be well advanced in getting those wages adjusted. I really can't see any reason to change that. Employers have adjusted to the fact that they've got two more years to complete their plans. They've probably already made most of the big payouts.
The problem that we have with the particular method of proportional that's being proposed here -- actually the proportional bit has been worked on more than anything else; it is closer to being perfected in our eyes than most other sections -- deals with the deadlines. When Bill 168 was tabled, it had an implementation date of 1992 for public sector employers and employers with 100 or more employees. Now that deadline has been changed to 1993. We would like to see it changed back to the 1992 that was promised.
Those big employers and those big unions that have been following the Pay Equity Act were well aware that 1992 was the date that was being talked about, and discussions have been going on based on that date. People have made plans in terms of what they think they might have to pay out with that date in mind. I don't think that the original date of 1992 is dealing a hardship on anybody, but changing it to 1993 is creating a hardship; it's creating a hardship for the people who have been counting on those adjustments and now suddenly have had a whole year snatched away from them.
Another problem that we have with the whole proportional one, and I think this is just a technical problem, is that the changes which were made there deal with doing proportional or doing proportional on top of plans that have already had job-to-job in them or there's an allowance that you can agree to do proportional for the whole thing, to make some kind of internal logic in your plan. What it hasn't quite allowed for is an employer that could do job-to-job and simply hasn't done it yet, and there are those people out there. All of us who are dealing with pay equity know we're still negotiating. We've got a lot done, but there's a lot left to do.
What we're proposing here is a clause that would say very clearly that you must first try job-to-job and you must do job-to-job where it can be done and then you do proportional, even in the cases of those people who haven't completed their plans. We would not like to see ourselves having to give away two years, or in this case three years, of job-to-job adjustments in order to get the proportional.
In the sections dealing with proportional value comparisons, a new term appeared. It appeared when Bill 168 was tabled, and that was the "representative group of male jobs." It's been a definition that we've had trouble with from the beginning because we're not clear what it means and we suspect that we don't like it. In fact we know we don't like it because it's clearly plural, so it purports to say that you can't do comparisons with one male job.
We can also see litigation starting to develop around the term "representative." What on earth is that going to mean? We're going to have differences of opinions about it. We don't see any reason to presuppose that it's impossible to do proportional value comparison in an establishment that only has one male job class. It might not be suitable; it might be that this one job class just won't fit and that one side or another doesn't believe it will work. They'll go to the review services, they might go to the tribunal, and they might determine it would not, but I don't think the legislation should presuppose that this is unworkable.
I've talked to some groups, not among ourselves, that have negotiated pay equity plans, and they say -- the current legislation is permissive on this subject -- that they have done proportional value with one male job, so they know ways that it can work. It's been done already, so I don't think this legislation should assume that it can't be done.
That brings us to the proxy method. There's a lot of different terminologies here. Like many other groups, we're not fond of the word "proxy" because of the fact that it's not a generally used term and it's got some baggage attached to it. Whenever I go to explain it to people who are not up to date on the pay equity legislation, their eyes glaze over and the whole concept is very foreign to them. We would like to try to use terminology that more closely resembles the terminology already in the act, with which people are already familiar, like comparator. So what we're proposing rather than saying "proxy" is "comparator" organization; it's the organization with which you are comparing, just as you previously compared job classes.
Our major problem here is with the whole idea that you have an all-female workplace and you weren't able to do job-to-job and you weren't able to do proportional. Now you're out looking for a comparator organization. What the legislation is asking you to do is to take your key -- we would suggest that using the word "benchmark" would be a better term -- female job class and now you're going to try to compare it first with a female job class, but you're going to have to try to find a female job class in that other organization with which to compare, and then only when you've compared to it will you ever get to the male job class.
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My experience has been that the more links in a chain you have to go through, the more inaccuracies build into the system. We find this whenever we're trying to work out adjustment schedules. Every step creates its own inaccuracy. It has a cumulative effect of building, particularly when rounding gets in. If you can do something in one step, that's better than doing it in two, and if you can do it in two, that's better than doing it in three or four, because every additional step builds a new inaccuracy that you have to somehow adjust for. We frankly can't see any reason why you have to go through a female job class in order to get to a male job class.
The kinds of groups that are going to be listed in the schedule, the kinds of establishments with which you can do comparisons, are going to be obviously -- this is what all the talk's about -- in the same general sector. We're going to be comparing public sector to public sector. What we suggest is fairly simple -- and we haven't worked it all out in clauses; it's the same one you may have seen from the Equal Pay Coalition -- that once an organization has determined that it cannot use job-to-job or proportional for all its job classes, then it identifies a suitable comparator organization, then just asks for the list of job titles and identifies from the list of job titles some jobs -- it may be all, because it may be a small place where there aren't a lot of job titles -- and asks for the information on those jobs.
The other major problem we have with the whole proxy methodology is that almost all the work, all the key decisions, are being made by this proxy organization. They're being asked to pick the female job class. They're being asked to do the comparison and then feed the information back to the organization seeking to do the comparison. Every one of those decisions is a real decision. There's no one right answer. It's certainly never been our experience that there's one right answer. It usually involves, in pay equity, a lot of discussion and a lot of decisions being made.
All those decisions -- to go left, to go right, to pick A, to pick B, to round up, to round down -- are going to be done by this outside organization, the one that has no vested interest in the pay equity plan. There's a sort of fundamental problem with that, in that by the time the information gets to the seeking organization, the organization trying to make the comparison, it's already been filtered two and three times in this series of decisions that has been made, over which they've had no control.
Certainly this has been our experience in negotiating, and in our case we've only ever negotiated employee to employer, so there was already a lot of familiarity built into that situation. But our experience has been that you've got to get your data, your information, as raw as it can possibly be, as unstructured as it can possibly be. Then you can work with it. We've had the experience where employers have handed us lists -- "Here are the male job classes, here are the female job classes, here are the job rates" -- all listed out for us.
We said: "No, we want to know the number of males, the number of females. We want to decide whether that title is really two jobs or whether these three titles are really one job. We need more information. We want to see annual rates, we want to see vacation, we want to see benefits. We want to be part of the decision of what the job rate is. We don't want you to hand us a piece of paper that says, `This is the job rate,' because all those decisions are very important to the outcome of a pay equity plan."
You have to get your data as pure, as raw as it can be, as much information, and then you can work your way down to making a plan. That is our real problem. If you've got this information already filtered, a lot of key decisions already made, I think the organization seeking to make the comparison is already seriously handicapped in what it can do in terms of working out a pay equity plan based on information over which it has very little control.
The other thing is that I can see this creating an awful lot of work for organizations that have been chosen to be the comparator or proxy organizations, a lot of work for which they're not being particularly compensated. Again, I don't want to get on the compensation thing too much, because you can always decide to pay them to do it, but paying people to do things isn't the key at all; it's having a vested interest in the outcome that's the key, having a real interest in it. That's what they don't really have, because they're not a party. As much as possible, parties should be the ones making the key decisions.
After this section, which starts on page 9, if you can't bring yourself around to the concept of changing how proxy is proposed to be done in the legislation -- that is what we're asking for -- we've gone on to say, if you're not going to go that far, then at least alter what you've got there. We've got a series of smaller amendments, if you can work with this, working through the female job class, and at least improve on that. On the next few pages we've put this in, but that's not what we really want.
We'd like you to change it so it's female to male and the information is given in a raw form to the seeking organization so it can know how to make it fit into its gender-neutral comparison system, not already filtered through somebody else's. All the decisions about what GNCS to use and what factors to weight, those are all key decisions in what the outcome of the pay equity plan will be. I think as much as possible they should be in the control of the parties that have to live with the outcome, not in the control of some other party that doesn't have to live with the outcome.
The compensation adjustments: Again, I would like to see the compensation under proxy moved back to an earlier time than what is proposed in this legislation, which is 1994. It would be nice if it was 1990, but that may not be realistic. I would like it at least back to the date that was discussed earlier, which was 1993, so we would have job-to-job, then proportional and then proxy at the very least.
The time lines, the beginning and end times, have been stretched out too far. I would like to see a completion date in there as well. In the current legislation there is no completion date for the proxy comparisons. We would propose a beginning date of 1993 and a completion date of 1998, five years, the same length of time as we have for job-to-job under the current legislation.
Dealing with some of the more technical aspects of the act, there is a whole section dealing with settlements that are reached between the parties after a case has already started through the review services and tribunal route. In general, we agree with the idea that those settlements are usually the preferred way of doing it. We don't want anything that forces people to litigate. There's enough litigation going on anyway about this act.
Anything that can encourage parties to settle between themselves should be encouraged, but with one proviso -- we've got it on page 11: that is, that any settlement binds the parties to it. However, no employer, employee or group of employees or the bargaining agent can waive any rights or disregard any obligations under the act. That doesn't mean they can't have a settlement that's different than the review order. As I said to you before, there are many possible outcomes to pay equity negotiations, because they're very, very complex, particularly when there are a lot of job classes.
While there is no one right outcome, it is possible to determine what a wrong outcome is, and we want that concept to be built in. It is possible to make a case that a particular piece of an outcome doesn't meet the criteria of the act, but within that, you allow the employers and the employees to come up with the right outcome that suits them. The stipulation they must keep in mind is that they cannot waive rights or disregard obligations.
In the proposed legislation, there is a subsection to 32.1 that allows parties or groups to become parties to tribunal hearings. We're very concerned about that, because the history has been that there are groups out there -- they have mainly been groups that have a commercial interest in particular job comparison systems, but there have been other groups like that -- who have only a peripheral interest in the particular plan that's being debated but have perceived that they have some financial or other interest in some of the issues that are being discussed in this context. We're very concerned that those people should not now be encouraged once again to interfere in tribunal cases. They have pretty well been discouraged, because several of them have tried to make cases and in general they've been found not to have a vested interest in the outcome and have not been named to be parties. But certainly our history has been that we've had to deal with these groups, and we don't want anything in the act that encourages any of that. The only party we could see adding to the employer and the employees would be the pay equity office itself where it has requested a hearing before the tribunal, because there will be cases, particularly in the non-unionized sector, where the pay equity office might choose to take a review order it had already issued before the tribunal on behalf of non-unionized people who were perhaps unable to represent themselves in this context. But I don't want to encourage any of those other groups to once again start tangling us up in litigation over their commercial interest in particular systems.
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At the back of our proposal, I have made a nice little list here with columns beside it saying "add, delete, amend" and put it all into language. It's kind of a summary of all the things I've said to you so you can kind of read through it.
In conclusion, it's a positive piece of legislation. It's a piece of legislation we've been waiting for for quite a long time, since 1987, basically, though I'll admit in the first year or so we were all very busy trying to apply the first piece of legislation now. But for some we've been very concerned about those people who could not fit into the original piece of legislation and what we could do to extend its benefits to them. In that sense, anything that starts extending the benefits of the Pay Equity Act is positive.
At the same time, I'd like to see it done right. We'd like to see some of these changes that are proposed made to the legislation so that it can better do what it purports to do. There. I finished in time.
The Chair: Thank you. Each caucus has about 10 minutes for questions and comments.
Mrs Caplan: I want to compliment you on an excellent brief. The recommendations you've made for clarity of language we've heard before and we will be looking very seriously at proposing some amendments that would have that effect.
We've had a number of different views about the effect of the delay, both in plans as they are being negotiated, that the actual negotiations will be delayed, as well as the effect of the payout. There's also been the concern raised that employers were changing the jobs that would be likely comparators. We just heard that from the Ontario Nurses' Association. I don't know if you were here for their presentation or not, but I wondered if you had any comments or experience with that.
I know the teachers have been very successful in negotiating and implementing pay equity plans under the existing legislation, and your brief, I think, is from the experience of your sector. What we've heard from other sectors is that they've had a different experience in the ability to negotiate the plans, and they feel that the change in the time line actually affects the fundamental principles and will be a step backward in the achievement of pay equity.
Ms Stewart: Just to put it in the context of where we are, we have actually negotiated almost all our pay equity plans with job-to-job comparisons and an implementation date of January 1, 1990. We have now only two major boards with which we have not completed those negotiations, but even in those two boards we're talking job-to-job in 1990, so it's not going to affect us personally in that context.
There are some of our very remote boards where proportional might come into play. We're talking very small, like two or three teachers and an OPP station somewhere in the extreme northern part of Ontario. They have a past history of keying their regular negotiations to some nearby place, like Sudbury or Thunder Bay or whatever. Since that is their past history in regular negotiations, we've been trying to do it for the pay equity as well. The major problem in those places is that you have an unstable workforce and that it comes and goes. People go up there for a year or two years, so the next time you call, the same person doesn't answer the phone. It's the continuity of those little places. I'm trying to get that. It's not any lack of interest. There's no ill will up there.
Ms Murdock: Sudbury is a little place?
Ms Stewart: No, I'm not talking about Sudbury. I'm talking about the next one out from Sudbury. Sudbury has been done for a long time.
Ms Murdock: I know.
Mr Winninger: Espanola.
Ms Stewart: No, Espanola's been done. Espanola was one of our first ones. We're getting smaller and smaller than that. There are really small places where there are only two or three families that live there, and they're maybe 200 miles from Sudbury but they're a separate school board -- those sorts of places.
Ms Murdock: Chapleau.
Ms Stewart: Chapleau and Hearst are done. We're smaller and smaller than that. We're talking about very remote, fly-in kinds of places. We're working on those now. It's a possibility that we might have to use proportional, but we don't really think seriously we will. We've been in discussion for a long time with those groups, and as I say, if we could just get the same person twice in a row, we'd probably get it straightened out. We'll get to them eventually.
However, from our experience, we can certainly empathize with those people who see this as a serious issue. We can see that the issue of that completion date of 1995 being extended tugs at the whole fabric of a negotiated plan by taking one element and pulling it out, particularly since everybody in those negotiated plans, the employers and employees, have already adjusted to the concept that it began in 1990 and will be finished by 1995. Now, all of a sudden, the rules are changing and the extension -- are they going to even this all over the whole eight years and take money back from people, or is it only the last two years that you're not going to spread over three more years?
Usually what you did is you figured the whole cost and you distributed it evenly over the five years or you looked at the cost in relation to the 1% of payroll, and you might have given a higher percentage in the early years and then gradually -- I've done those, where you'd start to wind down smaller and smaller until you were able to complete it. But the sudden stretching came out of left field. It wasn't even being talked about before and suddenly people are looking at that completion date being three years tacked on.
Certainly, the changing of proportional: I think a lot of us in the sector had kind of gotten our minds around to proportional beginning in 1992. It wasn't as good as beginning in 1990, which we were talking about back in 1990 and 1989, but it was certainly better than what is now being proposed, which is 1993.
I think there's a whole negative message there in all of this to those people who are resisting pay equity. There are still large forces out there that drag their feet, give you very slow data, give you data that's different than what you asked for. You wait five weeks to get it and suddenly it doesn't have the right -- then you have to go back and so on. Anything that delays and delays and rewards them for delaying, encourages them to continue in that type of activity.
I don't want to blacken school boards, because the fact is that most school boards have been very cooperative and we've had good luck with them. But where we've had problems, those are the kinds of tactics you face. I don't think the legislation should encourage people to say: "Look, we delayed, delayed and delayed. Now it's going to be 1993." Those people who settled are suckers, right? The people who went out and settled with their employees for proportional starting in 1990 -- and there were people who did that -- those employers now feel or may feel, depending on their attitude, that gee, if they had only delayed they wouldn't have had to pay at all for three years; they'd have saved three years' adjustments.
This piece of legislation, because it's proactive and because it's built on causative self-management, should do everything it can to encourage -- I'm sorry; I'm talking like a teacher, of course -- the kinds of behaviour that will reach the outcomes you want to have. So you put in rewards for the positive behaviour; you don't reward the negative behaviour.
Mr Arnott: Thank you for your presentation. It's very clear and concise and we appreciate the information you've provided to us.
I have a couple of specific questions. The first one is with respect to your recommendation on page 3, that women in workplaces with fewer than 10 employees should be extended some protection under pay equity, that they should be given the right to complain, I guess, to the Pay Equity Commission. Is that correct?
Ms Stewart: Yes.
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Mr Arnott: Would you then support a provision which would require employers of under 10 people in the workplace to prepare pay equity plans as well, and then in turn be forced to devote a certain percentage of their payroll on an annual basis to pay equity implementation?
Ms Stewart: Well, we started out with that kind of view, but now that's not really terribly practical if you've only got under 10 employees. What we were trying to do here was to take our pure position, which would be to post plans and do everything and adjust it to the realities. The very negotiating and implementing and posting has a cost in terms of time and effort attached to it, quite aside from the cost of the adjustments, and I don't think it's really practical to put all that on people who have less than 10 employees.
That's why we're suggesting this as being what we see as the pragmatic, practical alternative, but it still fills the gap between the equal pay for equal work legislation and the equal pay for work of equal value legislation, because those under-10s fall in a gap in between and they're not covered by either one now.
Mr Arnott: So you're saying the employee would have the right to complain to the commission, but there would be no provision for remedial action to be taken.
Ms Stewart: Oh, there would be provision for remedial action, but what I'm saying is that they wouldn't have to have a posted plan. They would just prove -- they would go with their --
Mr Arnott: So the commission would then take the next step and order the company to alter its pay scale.
Ms Stewart: In order to accommodate, if that was true. I presume they would have to use review officers. They currently would.
Mr Arnott: Yes, that's quite a bit different from the existing pay equity legislation, because the theory behind that is that the government doesn't directly interfere, and we heard that yesterday from the deputy minister, or intervene in the relationship between employers and employees, but simply approves the plans of employers and employees that they have presented for pay equity, subject to certain criteria, naturally. But it simply approves the plans.
Ms Stewart: In practical terms, 99% of the time it's self-management and it's worked out between the parties. But in the cases where it doesn't, and that occurs under the current legislation, you go to the review services. The review officers have become very experienced in pay factors and so on, and in fact they come out and they attempt to mediate. Again, my assumption, from looking at what the data are, is that in most cases they mediate. They come out and they sort it out. I would assume that's what would happen in most of these cases. They would come and sort it out and it would only be those that didn't get sorted out that would have to move any further along the continuum.
Mr Arnott: On page 4 of your presentation you talk about the crown as an employer, and you feel that the crown should be, for all intents and purposes, considered as the employer, I assume, in the broader public sector, generally speaking. Is that what you're saying?
Ms Stewart: No. I'm saying that people, groups, should have the right to make that case. It's not true for everyone.
Mr Arnott: If the provincial government is the funder of that particular organization, is that --
Ms Stewart: If you meet the criteria; there are four criteria in the Haldimand-Norfolk case, and not all transfer agencies that receive a lot of their funding from the provincial government would meet the Haldimand-Norfolk criteria.
Mrs Caplan: I think it's also the Kingston-Frontenac --
Ms Stewart: The CAS workers in Kingston-Frontenac. A lot of the CAS workers are -- you'd have to ask someone from CUPE to give that one. I think they provide all the funding, 100%, so there's no other source of funding. They also provide extremely rigid regulations about what work they will do and so on.
There are transfer agencies that have practically no local discretion. They carry it out but they are carrying it out for -- for instance, I wouldn't consider a school board in that context, because school boards, for one thing, are unique in that they have a taxing ability of their own. They have a great deal of discretion as to how to carry out broad, general directives, and that's true of many transfer agencies as well. But there are some that can make their case that they don't, so the employees experience a certain frustration in trying to deal with their immediate employer because that immediate employer has no discretion. They have no movement because they're so hemmed in by the true employer that is behind them.
The case has been made for the municipalities in the case of many libraries, the library boards and so on. That was a case of proving the municipality was the employer. The CAS workers have been very -- well, not successful in terms of they haven't actually gotten any money out of it yet, but they've been successful in terms of getting a review order and a tribunal decision in their favour, showing that they do meet that test.
Mr Arnott: It's exceedingly complex, isn't it?
Ms Stewart: Yes.
Mr Arnott: It's difficult to draw the line because of the way we've organized ourselves over the years, with local agencies or local municipalities attempting to generate some of their own funding through their own tax opportunities and deriving a lot of their revenue from the provincial government. It's very difficult to draw the line.
Ms Stewart: Many, many more groups have failed to meet the Haldimand-Norfolk test than have actually met it. Lots of groups attempted to use it. Haldimand-Norfolk itself didn't deal with the profits as the employer, but they dealt with them in terms of municipalities or other employers that are behind their immediate employers. I think the current legislation allows a route for getting at the true source of the income for those people who can prove their case, and we don't think that should be slammed in the face of people.
The Chair: Mr Arnott, if you don't mind, Mrs Caplan has a question along the same line.
Mrs Caplan: It's supplementary to that as it relates to Bill 169 and the definition of "employer." We haven't had a lot of discussion about this, but I would like your comments. It seems to me that it's important for the government to be able to define who is a crown employee, and not just for the purposes of pay equity. In fact, I've stated on numerous occasions that I think Bill 169 has very little to do with pay equity and that this could have been resolved within the pay equity legislation, Bill 102, with a definition of "employer."
It really has a whole lot more to do overall with collective bargaining. I have a very cynical view of the deal they cut with OPSEU, because it has always been OPSEU's position that for its purposes, it should be able to negotiate with the government rather than with the independent agencies.
I wanted your comments on this. The reason I believe the government should be able to do it is that today in Ontario we have a public service of about 90,000 civil servants. If you were to add all of those who met that test of 100% payment --
Interjection.
Mrs Caplan: Well, I think it does clarify the point.
Mr David Tilson (Dufferin-Peel): On a point of order, Mr Chairman: This is a long question --
Mrs Caplan: Yes, it is.
Mr Tilson: -- and as long as this doesn't take our time, I have no problem.
Mrs Caplan: I won't take their time.
The Chair: It won't be taken from your time, Mr Tilson.
Mr Tilson: Okay.
Mrs Caplan: You're talking about, if you look at the Ministry of Health, almost every community mental health program, all of the addiction programs, anything that is funded 100% through the Ministry of Community and Social Services -- every child care program, virtually, in the province. You could triple the size of the civil service if you use the test on the basis of funding and standards because both Comsoc and Health set the standards for those programs and they fund them 100%. Surely it's not feasible for us to consider tripling the size of Ontario's public service, and the government must be able to do that. What concerns me is that this is a very deceptive way of doing it.
Have you considered the implications for society of tripling or quadrupling the size of the Ontario public service? One of your recommendations is that the government should not change that definition. Have you thought of the implications to you as a taxpayer of what it would mean if you had province-wide wage rates and you had 200,000 or 300,000 civil servants?
Ms Stewart: We're not actually advocating province-wide wage rates or any of that. That's not what we're trying to get at. We're trying to get at people, in the context of pay equity plans, being able to make this case. In fact, very few -- well, one, Frontenac CAS workers -- have been able to make the case that the province is their ultimate employer. So while the act has been in since 1987 without this restriction, it has not played out to the scenario you just laid out.
Mrs Caplan: In fact, the Frontenac case, under this legislation, would not have been permitted. We heard that yesterday. That's just the case for pay equity. It's my view -- and I'm pleased to hear your response -- that Bill 169 is really about, ultimately, the size of the civil service and has very little to do with pay equity alone for the purposes of definition of who's the employer. I believe it would lead to province-wide wage rates for several hundred thousand people, which would, I think, not be in the public interest, so it's interesting to --
Ms Stewart: It's certainly not in our interests. I'm talking about FWTAO.
Mrs Caplan: That's right, yes.
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Ms Stewart: We bargain with local school boards in fact.
Mrs Caplan: And it works well.
Ms Stewart: It works well and we believe strongly that the parties who have to live with the results should be the ones who make those kind of decisions.
The Chair: Mr Arnott.
Mr Arnott: I defer to Mr Tilson.
Mr Tilson: Just a couple of questions specifically on the settlement issue so that I understand your rationale. I think that's on page 11 of your submission. This proposal has been made by another delegation to the committee. If the bill was amended to match that proposal, just so I understand your rationale, what sort of settlements would you expect?
Ms Stewart: There are already changes proposed to 25 in Bill 102, so what we're proposing is another --
Mr Tilson: I understand that. I'm saying that if you have settlements over the whole issue of pay equity and that amendment would be there, what sort of settlements would parties talk about?
Ms Stewart: In practical terms, we do get settlements. Much of what is in the proposed 102, in section 25, is really already happening, but it doesn't have the sanction of the act. In practical terms, you have a breakdown, you have a review officer come in; you have another breakdown, the review officer writes an order. Sometimes you attempt to work with the order; sometimes one or both parties object to it. You end up at a pre-hearing at the tribunal. You go through all this litigation. Then they attempt, once more, to mediate. They attempt once more to get the parties to come and that's usually where you settle.
Mr Tilson: I understand all that. My question is, what would you be settling? If there's something that's going to be a waiver of a provision in legislation or a waiver of something to do with the law, what sort of things would you be settling?
Ms Stewart: Usually you'd be settling the plan, or you might actually be just settling a particular issue that was preventing you from completing the plan.
Mr Tilson: For example.
Ms Stewart: An isolated issue; for example, our very first case, which was the Wentworth-Perth case, dealt with two very preliminary issues, but they were holding up every plan in the province. It was the issue of who the bargaining agent was and how to divide the teachers into job classes.
You just could not proceed without those two issues because the employer had a different view about who the bargaining agent for the employee was, so we had to deal with those issues. That whole case was only on those issues, and so you could have settled those two issues, which wouldn't be the whole plan, believe me.
Mr Tilson: Can you tell me the rationale for the amendment? The reason I ask is that there could be something -- for example, if the act were to be implemented at a particular point for a particular company, it might result in substantial job losses or job losses and it may well be that there may be a longer period of time required to implement the act. This amendment says, "No, you can't waive anything in the act." That's what your amendment says.
Ms Stewart: No.
Mr Tilson: I guess I'm raising the question -- it might be a hypothetical question, we don't know -- that there may be situations in which women may be interested in saving jobs as opposed to demanding that particular provisions in the act be honoured.
Ms Stewart: What we're getting at here -- and that will reach part of what you are saying about costing and so on -- is that pay equity plans tend to be far more complex than people realize in that what you usually have are a large number of female job classes. They don't all have the exact same interests in the outcome. The plan might work -- now a particular gender-neutral comparison system, GNCS, or a particular decision on a particular issue might impact differentially among those classes. In other words, it might benefit some of them more than others. You have to choose A or B. A will benefit this bunch and B will benefit that bunch, but you can only do A or B and you have to apply to all of us.
Mr Tilson: Then you don't settle.
Ms Stewart: No, you do, all the time. Making that decision is not waiving a right under the act because you do have to make decisions, but what you would not be able to waive is the right of all those classes to make their comparison. What we're trying to do is to protect, say, particular job classes that might feel that they got sold out entirely. They would then have a right to make their case. It may be -- I don't think in most cases it would be -- that they were part of a whole mix. You had to measure it one way or the other.
Mr Tilson: I guess the fear I have, and the trouble when you make fixed decisions like that, is that there may be situations in which it might be wise to delay the implementation of a particular plan simply for the issue of saving jobs. That's one of the questions.
If I can find the article that I referred to in a delegation yesterday, I'm going to read from it. It's an article that came in the Toronto Star in December:
"Is it wise to enforce a pay equity timetable that would end up hurting some of the most vulnerable working people in the province? What should our government's first priority be: increasing the salaries of people who are lucky enough to have jobs or creating new jobs for those who are unemployed?"
That really doesn't get into the issue of settlement, but it could be that in enforcing a principle of pay equity for particular companies at a particular time, there may be a downswoop in that company's progress, not just the recession but in that particular company's development, and that it might not be a wise time to progress with that fast a timetable of pay equity. However, if there was a settlement that stretched out that timetable, the act would be violated.
The company says: "We're proceeding on this timetable. We're going to have to cut back." My fear is that if you get too restrictive and don't allow the parties to negotiate a particular position, there might be job losses. That's why I was asking whether or not it is wise to have the rigidity of that proposed amendment.
Ms Stewart: Our position would be that what's in our proposal right here is what is in fact currently true. Under the current act, you can't make a settlement that's in violation or waives rights. We're only proposing this change because Bill 102 proposes a few other things that we hope they don't mislead people into thinking. So it's to be clarified.
Mr Tilson: We're looking at section 25.
Ms Stewart: That's right.
Mr Tilson: If the previous bill is wrong -- and I don't know whether you're saying that or not.
Ms Stewart: No, I'm saying it is my view that this is currently true of the current legislation, and it only needs to be added because of the other additions. We want to make sure that it's clear in the group of additions that this is still true.
Mr Tilson: I think you see my point and I do fear that point, that you can be too rigid in a position and thereby result in jobs being lost of the very people you're trying to save. That's a fear that I would have of taking that position.
Ms Akande: I'm going to go back to page 6, if I may, of your report. Thank you. It's nice to see some of you again. I really wanted to look at proportional with only one or possibly one job class. It may be my lack of understanding -- it obviously is -- but I don't know how you'd do that. Do you have a sense of how you'd do that?
Ms Stewart: Yes, I do. There are a couple of ways. There's a way of doing regression analysis that will bring out the dollars-for-points method. So it can be done. I'm saying it cannot always be done in the case of one.
We certainly heard from people at CUPE that they have done it with one and it is doable. It's not always doable because sometimes your one male job class is very skewed in terms of not fitting in. When you do a regression analysis, you find a director way out here, because it's usually the one executive director or whatever, and so they might not fit in. In fact, they have done it many times with one, and they believe it is doable.
What we're proposing is to put the "es" in brackets so that it could be more than one or one, and leave it up to people to work out how to do it. It's going to depend on the system that you use.
Mrs Caplan: Just to be helpful, that's a technical thing that their consultants who work in the field do all the time. I would advise you, Ms Akande, not to try and understand it; it's impossible. They're experts at it.
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Ms Stewart: They do graphs and they figure out your upper flow. There's a whole science to do with regression now.
Mrs Caplan: It is. It's like actuarial science. It's wild.
Ms Stewart: Jan here has been doing some work on it for me.
Ms Akande: I have to apologize for not knowing.
Ms Stewart: Offhand, I can't do it, but Jan has done some work on it.
Mrs Caplan: That's right. Computers help.
Ms Stewart: If you get enough raw data, you can work with it.
The Chair: Thank you, Ms Akande. Mr Lessard. Oh, more?
Ms Akande: I had a supplementary to that. Do they have any stats, any information about the accuracy or the efficiency of using regressional analysis, or has it been used so seldom that in fact we don't have information about that?
Ms Stewart: I think we have to really emphasize that, as with anything to do with pay equity, if the parties don't break down and don't end up in very rigid positions, which is usually what happens when they go to the tribunal -- you've got to remember that's a very small fraction of all the parties. Hundreds and hundreds of parties, thousands of parties out in the province negotiate plans.
Usually the parties negotiate, which means it's give and take. You work it out, you massage it until you can get it to work. With goodwill, and usually in most cases there is goodwill, it can be done. If that breaks down, they have to sit down, pull out statistics and work out and show that they've proved their case based on some of those others. But with a little goodwill on both sides, you can work it out. You make sense out of it because you know your workplace.
Mr Wayne Lessard (Windsor-Walkerville): I want to thank you for an excellent presentation as well. I always appreciate briefs that include some specific recommendations for changes to the legislation. I was interested in your suggestions about the crown as the employer. You mentioned the Haldimand-Norfolk case and the fact that very few people have been successful in their applications, but certainly many have tried, and as long as that case is out there, I suppose that many more would be encouraged to take that option. I would think that these provisions provide some clarification for people so that they don't have to expend the time and the energy and the cost to pursue that option. Don't you think that could be a benefit as well?
Ms Stewart: The sort of self-serving nature of these is that you're only closing the door for the crown. You've left all the other employers, like the municipalities. The vast majority of Haldimand-Norfolk-based cases have been used to find that a municipality is the ultimate employer. The CAS is the only one that's tried for the crown. Haldimand-Norfolk is still being applied in terms of finding the municipality to be the employer of its transfer agencies. Transfer agencies go down and down. The crown isn't the only group out there that has some employers below it. I mean, it all gets into the contracting-out issue.
But no, the only group we know of today -- we have to remember that the current legislation has been around since 1987. The vast majority of job-to-job plans have been done. If people are making that case under the job-to-job, they're making the case. We know that the people representing the CAS workers are making their case based on the Frontenac decision. There are very few left out there under the job-to-job rules who are still able to make that case.
Ms Murdock: Thank you for coming. I was a former member of FWTAO, when I taught in one-room schools in the middle of the bush in those little wee places, but the Ministry of Education was of course the employer, so I didn't have to go through that whole process.
I just wanted to ask you a question I've ended up asking most of the presenters in terms of language, which you mention on page 7. It follows almost identically the Pay Equity Coalition's presentation yesterday in terms of the use of "proxy organization," "a comparator," "key female job class" and so on.
I'm wondering how important you consider that in terms of changing, for instance, language from "seeking organization" to -- a suggestion yesterday -- "an establishment requiring cross-establishment comparisons," and whether that wouldn't even be more confusing to a public that generally finds it confusing as it is.
Ms Stewart: Again, being a teacher, I think language is important, but more important than the language are the more substantive changes that we have. This is why I put them in one paragraph there and then everywhere else I've use double references. I've put our preferred language and the language that's actually in 102 in brackets so that you can know which one I'm talking about. I wouldn't want to get the language and not get the substantive changes. It would be nice to get both. Please don't give me the --
Ms Murdock: It's like, I'd like pay equity 10 years ago; forget an extension of three years.
Also on page 11, going back to what Mr Tilson was talking about, it was actually just a clarification that I was looking for. In your addition that you're recommending, wouldn't I be correct in assuming, based on decisions from the Pay Equity Commission already, from the reporting mechanisms and so on, that they would not accept any waiver of any rights or obligations already existing under the act? I mean, you can't waive requirements that are required.
Ms Stewart: The way that pay equity negotiations actually occur is the pay equity office does not look at every plan that's signed in the province to see whether it meets the criteria of the act. If the parties agree and they sign the plan, they don't send a copy of it to the commission; nobody previews it. Nothing happens unless somebody affected lays a complaint that the plan does not meet the requirements of the act, which is what I'm saying here.
Once a plan has been signed between the two parties, the bargaining agent and the employer, it applies. It's now in effect, it's deemed approved and it goes ahead, provided nobody complains. The only way you can complain about a signed plan is that you can complain that it's not being carried out according to its terms or you can complain that it doesn't meet the requirements of the act. People can get a hearing on one of those two issues on a signed plan.
What we're trying to do here is to make sure it's clear, that if that's true of plans that were signed without ever involving a review officer or anybody else, it should also be true of settlements that are made in the course of going through the process, because people, even at the point of meeting with a review officer or being at the pre-hearing or even being at the tribunal, make settlements. But those settlements, just as any settlement they made prior to them, should still be required to meet the requirements of the act.
Ms Murdock: Yes, but you can't waive obligations that the act requires you to do.
Ms Stewart: You currently cannot.
Ms Murdock: And in a settlement process the officer would be very familiar with the requirements under the act and therefore, in all likelihood, I would hope, would not be negotiating or mediating with the groups to waive requirements of the act. But I do see that in settlements that have been signed off and until a complaint arrives, the Pay Equity Commission would have no idea that they had, say, worked out something where they were waiving a requirement. Then that would cause a problem.
Ms Stewart: The settlements envisioned in section 25 are settlements that occur after there's been a review order and while you're in the tribunal route. You're in that process --
Ms Murdock: Hopefully never having to get to the tribunal.
Ms Stewart: Yes. You've had some pre-hearings. You might have had some preliminary hearing dates or whatever; you've reached a settlement. You're not doing that with the review officer there, because you've now got beyond the review officer. You make a settlement.
Our concern is that those settlements should have the same requirement as any other settlement at any other stage of the process. The proposed legislation says that these are binding on the parties. They reach a settlement, they sign it, it's binding, just as some that were reached before would have been binding on the parties. That's fine, as long as it's also clear that the other part is still true, that those settlements should be capable of being complained of if they don't meet the same requirement that our plan without the review officer would have.
The Chair: Thank you, Ms Murdock. Ms Stewart, Ms Matthews, Ms Bruce, Ms Kainer, on behalf of this committee I'd like to thank you for taking the time out this morning to give us your presentation. Thank you very much.
This committee stands recessed until 1:30 this afternoon.
The committee recessed at 1159.
AFTERNOON SITTING
The committee resumed at 1341.
ONTARIO PUBLIC SCHOOL BOARDS' ASSOCIATION
The Chair: I'd like to call this meeting back to order. I'd like to call forward our first presenters this afternoon, from the Ontario Public School Boards' Association. Good afternoon. Just as a reminder, you'll be allowed up to an hour for your presentation. The committee would appreciate it if you would keep your remarks somewhat shorter to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, could you please identify yourselves for the record and then proceed.
Ms Gail Nyberg: My name is Gail Nyberg and I'm the treasurer of the Ontario Public School Boards' Association. With me are Janet Beer, director of labour relations; Carolyn Kay-Aggio, our legal counsel on this issue; and Mike Benson, executive director of OPSBA.
The Ontario Public School Boards' Association is pleased to have the opportunity to appear before the standing committee on administration of justice and participate in the government's discussion on Bill 102, an Act to amend the Pay Equity Act.
The association represents over 90 public school boards from across the province representing 1.4 million children. The association's goal is to promote public education and ensure that locally elected school boards are responsive to both education program need and resource capabilities of their local communities.
Public boards of education, for the most part, accommodated pay equity provisions as a result of the Pay Equity Act, 1987. Some member boards will be required to look at proportional value or proxy comparison methods to complete pay equity for all employee groups.
The issues we would like to address at this committee today are two specific areas: first, the proposed addition of section 14.1 and section 14.2 dealing with changed circumstances, and second, the requirements of boards of education that are designated as proxy organizations.
I'd like to turn the technical part of our presentation over to Janet Beer and Carolyn Kay-Aggio.
Ms Carolyn Kay-Aggio: Certainly, OPSBA has been involved intimately in making presentations and submissions to the government with respect to Bill 102. What we would like to emphasize today, however, is our position with respect to the "changed circumstances" amendments of Bill 102 and certainly the proxy comparison method of part III.2.
Dealing firstly with the changed circumstances, it is our position, quite succinctly, that the amendments with respect to the changed circumstances are of sufficient concern to OPSBA to warrant further submissions. It is our position that the existing language of the Pay Equity Act suffices and provides an adequate and appropriate mechanism for dealing with changed circumstances in an establishment.
Subsection 7(1) of the existing act imposes an ongoing obligation on employers to maintain pay equity even after a pay equity plan has been posted and deemed to be in compliance with the Pay Equity Act. Furthermore, subsection 22(2) of the existing legislation allows any employee, group of employees or bargaining agent, if any, to complain to the Pay Equity Commission if, "because of changed circumstances in the establishment, the plan is not appropriate" -- and I emphasize the words -- "for the female job class to which the employee or group of employees belongs."
The test, therefore, under the existing legislation is given some focus -- ie, it focuses on the female job classes and envisions that it is members of the female job classes that the plan is no longer appropriate for who will be complaining. The test in the existing act has been removed from the amendments, proposed sections 14.1 and 14.2, and this causes us concern.
With section 7 and section 22 of the existing act, it's our submission that there is already sufficient mechanism to deal with changed circumstances. There is no compelling reason, we feel, to unnecessarily complicate the process by adding yet another administrative or procedural burden on employers. This, in our submission, is exactly what the proposed amendments do. It's unnecessary and undesirable, in our perspective.
The amendments, as proposed, impose a requirement on establishments where there is a bargaining agent to enter into negotiations with respect to amending a pay equity plan when either party is of the view that the plan is no longer appropriate because of changed circumstances. The test in the amendments now is no longer appropriate with respect to female job classes, but rather that focus has been eliminated.
In our submission, the amendments thereby broaden the test as to what constitutes changed circumstances. Conceivably, the amendments now allow for male job classes, through the obligation to negotiate which the amendments impose, to potentially challenge comparisons that were used to originally benefit female job classes to which they had been compared. The requirement to negotiate, then, offers the prospect of an endless cycle of negotiation initiated by either party's belief, reasonable or otherwise, that the plan is no longer appropriate.
Changed circumstances, as I am sure you will all recognize, are something that can occur at any point in the life of an establishment or an employer. Consequently, there is always the possibility that even once the parties have renegotiated a plan in 1995, for example, with respect to changed circumstances, if something further happens in 1998, there is then the requirement for a further round of negotiations, and it can go on endlessly. This is also of obvious concern to OPSBA and to employers generally in the hope that there is some finality to pay equity in terms of the negotiation obligations.
The amendments to the "changed circumstances" language also fail to adequately explain or clarify the relationship between those amendments and the existing subsection 22(2). We feel this is something that certainly needs clarification.
The existing provisions, therefore, in conclusion, with respect to changed circumstances, impose sufficient obligations on an employer to keep him -- and I use the word -- "honest." Employers in the normal course of operating would be well advised -- and I would certainly submit that this would be the normal practice -- to keep their employees and their bargaining agents, if any, apprised or informed as to changed circumstances within the establishment to ensure that there was continued compliance and acceptance by the employees or the bargaining agent with respect to that plan.
If such acceptance is not forthcoming, the complaint mechanism that currently exists in section 22 is available for the party who is not in agreement with the plan, as amended, to complain. In the result, it's OPSBA's recommendation that sections 14.1 and 14.2, the proposed amended sections, be removed.
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Turning, then, to the proxy comparison method, the second issue we feel compelled to address before you today is part III.2. Our concerns in that part of Bill 102 flow from the fact that school boards, individually and collectively, will undoubtedly be targeted by seeking employers -- for example, child care institutions -- as potential proxy employers. Bill 102 imposes onerous obligations, we submit, on potential proxy employers without at the same time providing protection for those same employers from the potential for abuse by seeking employers. Under the proposed amendments, the seeking employer has the unilateral right to decide whom to target as a potential proxy employer.
The amendments currently indicate the intent of the legislators to prepare regulations to guide in the selection of a proxy employer, and I ask you to bear in mind the distinction in the legislation itself between a potential proxy employer and a proxy employer. Both of those terms are treated differently and both are defined separately. Consequently, the indication in the legislation of the intent to draft regulations to aid in the selection of a proxy employer does not apply, or at least on its current reading does not appear to apply, to potential proxy employers.
The mandatory obligation to produce the wealth of information set out in section 21.17(1) of the proposed amendments is an obligation imposed on potential proxy employers. Again, I reiterate, these will have been simply targeted by a seeking employer. There is no mechanism currently in the legislation or in the proposals for a potential proxy employer so targeted to challenge the fact that their entity has been targeted and identified as a potential proxy employer. In the absence of criteria to aid in that initial targeting, the potential exists for seeking employers to simply cast their net as broadly as possible in the hopes that in the potential proxy employers that they've targeted there will be one within which the comparisons will result in the most favourable result to their female job classes that they are seeking comparators for.
As I said, once targeted, the obligation to produce information is mandatory. In the result that there's the potential for a number of potential proxy employers to be gathering and compiling and producing information to the seeking employer, obviously this leads to duplication, triplication, quadruplication, if you will, of efforts being expended by all of the potential employers that have been initially targeted. Ultimately, once that information has been produced to the seeking employer, it may be that a number of those potential proxy employers will not be ultimately selected as the proxy employer for purposes of doing the final comparison.
There is obvious time, effort and moneys being expended by the potential proxy employer in gathering this information. The activity is of no benefit whatsoever to the potential proxy employer, in our concern; it's of no benefit to the school boards, either individually or collectively. Given the current financial concerns of school boards as a whole, the prospect of engaging in this activity for someone else's benefit is certainly a serious concern to OPSBA.
With respect to the information that the amendments currently obligate a potential proxy employer to disclose or to produce, there seems to be an assumption in the legislation that this material or information is readily accessible and that it's simply a matter of handing it over. That, however, is far from the case. In a number of school boards -- and certainly, I would venture, in a number of employer establishments -- duties and responsibility data may not have been gathered, with the result that additional time, moneys and effort will have to be expended by the potential proxy employer to initially gather this information for purposes of then producing it to the seeking employer.
One question that remains unanswered in the legislation, and it's certainly not confined to section 21.17, in a number of places throughout part III.2 there is reference to comparisons or data being required with respect to jobs that have similar duties and responsibilities. What the legislation leaves unanswered, unfortunately, is the entity that is to decide whether or not the duties and responsibilities are similar. As a targeted potential proxy employer, do you have the opportunity to say to the seeking employer, for example, "I don't think these particular jobs have similar duties and responsibilities"? That issue requires clarification, in our submission.
As a result of the onerous obligations to produce data which may or may not exist at the time the request is initially made by the seeking employer, the 60-day time line in the amendments is simply not sufficient, in our submission.
A further concern is the provisions with respect to the gender-neutral comparison system. The amendments compel comparisons to be made to the proxy employer using a gender-neutral comparison system. What the act does not do is to clarify whose gender-neutral comparison system is being referred to.
A proxy employer who has already completed its own pay equity plan inevitably will have gathered its own job data having reference to the gender-neutral comparison system that entity is using; therefore, the job data gathered in a lot of respects will mirror what its gender-neutral comparison system required. The seeking employer using another or a different gender-neutral comparison system may require other job data the potential proxy employer simply had not gathered because of the fact that its gender-neutral comparison system didn't require them in the first place.
Again, OPSBA is concerned that, as school boards are the likely targets of seeking employers, there will have to be additional efforts expended by school boards in gathering this job data information solely for the benefit of a seeking employer which, as I say, may ultimately come not to use that information.
In the result, with respect to the proxy comparison method, OPSBA recommends that there be development of criteria to aid in the initial selection of a potential proxy employer. We would certainly recommend that that be done in the body of the legislation as opposed to being done via regulation, which is the intent, at least at this stage, of the Legislature.
We would further recommend that the time line for compliance with the production requirements of subsection 21.17(1) be extended. We would also ask for clarification with respect to those issues that we have highlighted for you today.
At this juncture, what I would like to do is to turn to Ms Janet Beer.
Ms A. Janet Beer: We're prepared to answer any questions the committee has on these issues. We have been involved in the consultation process with the development of the two plans, and except for those issues we've raised today, we think it looks good.
Mr Arnott: Thank you for your presentation. You've provided advice for this committee that I think will prove to be very valuable over time. I think you've highlighted a number of important issues.
On the changed-circumstances provision, you've underlined very clearly how this new initiative is going to be extremely bureaucratic and administrative-heavy, and I think that's an important consideration for the committee to give some time to.
In your second main concern, the proxy method of comparison, you've suggested that, in some instances, employees who are seeking increases under pay equity will attempt, as you say, to cast as broad a net as possible in an effort to in some way benefit themselves in terms of pay equity increases. I totally agree with that. I'm wondering if you think -- and I'm not 100% sure of this. Will it require a legislative amendment to seek that clarification, to develop the criteria to guide the initial selection of a potential proxy employer, or would that be set out in regulations such that it would be satisfactory to you people?
Ms A. Janet Beer: Obviously, our preference would be that it be indicated in the legislation as opposed to regulation. The second issue that deals with our recommendation is not only that we more clearly define those issues that Carolyn has raised, but also that there be a mechanism to challenge, if indeed the proxy organization in their view is not appropriate, so it would be more appropriately placed in the legislation.
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Mr Arnott: I have in front of me a memo sent to the chairpersons of all school boards by the Minister of Education, dated December 16, 1991. It states that the government set aside $125 million for pay equity for 1991 for the broader public sector. After that, it was reduced to $75 million, and your school boards were to get $17.5 million. This was December of last year. Have you received that money?
Ms A. Janet Beer: My understanding, and I could confirm it for you with our director who deals with finance, is that a portion of that money was rolled into the general legislative grants and passed on to school boards. That money, however, was to accommodate ongoing implementation of pay equity. The majority of our plans are implemented over a three-year period. With the teacher groups, specifically in the elementary panel, we implemented to 1% of payroll for each group. So that money in essence came from the government but was attached already to plans that were negotiated. I don't have the exact figure, however, on what amount we actually got.
Mr Arnott: Have you any figure to give us in terms of the school boards' portion of the cost of pay equity adjustments you've had to make over the last, say, year, or even five years? Have you done calculations with respect to that?
Ms A. Janet Beer: We have implemented, each school board, all of our pay equity based on the existing legislation of 1% of payroll. To the best of my knowledge, the last of the plans we are dealing with, with the exception of one or two groups at this point, are implemented prior to January 1994. So that would be 1% for that period of time from 1 January 1990. Because of some of the complex issues, many of our plans were not actually implemented until 1991, and there was a requirement, obviously, for retro pay back to 1 January 1990. A large portion of the 1% for the first year of implementation actually flowed into the second and third years in terms of school board budgets.
Mr Arnott: It's very difficult to quantify what it's costing.
Ms A. Janet Beer: It's very difficult. We've attempted to get a handle on exactly what the cost of pay equity has been. Many of our school boards, while doing pay equity, also implemented internal equity, which goes hand in hand in terms of the establishment of pay equity, so the cost may be higher than the 1%.
Mr Arnott: Are most school boards having to go to an outside consultant to develop their plans, or are they able to do it in-house?
Ms A. Janet Beer: I would have to say there was a combination of methods in terms of implementing pay equity. Some used consultants, some used plans that were previously developed and some negotiated their own plans between themselves and their unions.
Ms Murdock: Should I make the assumption that these are your two concerns, but the rest of the bill you're okay with?
Ms A. Janet Beer: As I said, we have been involved in consultations with the Ministry of Labour and have looked at it. We have very few boards that are going to be impacted by proportional value and proxy comparison, because the male comparators exist internally. The majority of the legislation, we believe, will work well, but you'll have to hear from other employers. We obviously haven't done a lot of study, simply because the implications aren't there for us.
Ms Murdock: I want to get to changed circumstance. In relation to that, subsection 7(1), as I read it, unless I'm completely off track, is, "Despite subsection (6), pay equity plans in the public sector shall provide for adjustments in compensation such that the plan will be fully implemented not later than the first day of January, 1998." And (7.1) reads, "Subsections (7.2) and (7.3) apply with respect to an employer in the public sector who has set out in a pay equity plan that was posted or in another agreement that was made before this subsection comes into force a schedule of compensation adjustments for achieving pay equity." Yes?
Ms Kay-Aggio: You're obviously looking at the RSO 1990s.
Ms Murdock: No. I'm looking at Bill 102. I'm presuming that you're referring to section 7.1.
Ms Kay-Aggio: No, we're referring to the existing section 7 of the Pay Equity Act. If it would be of assistance to you --
Ms Murdock: It would be. Please.
Ms Kay-Aggio: The reason I thought you were referring to the RSOs is that there may have been a numbering change; I am still looking at the 1980 RSOs. In any event, the provision is, "Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer." It's the obligation to maintain that float, that we assert is already in there, from which the ongoing obligation runs.
Ms Murdock: We're getting into a whole interpretation of language thing. Obviously lawyers do tend to do that. But in regard to that, I was listening to your argument as you were expounding on it. Having read 7(1) now -- and 22; I'll have to read that, because obviously it's not this 22 either. I wondered; I thought, "This doesn't follow." But isn't it in the long run far better -- and this is partly the rationale of our way of thinking, I guess -- not to have to go through the Pay Equity Commission if you can do it between yourselves?
Ms Kay-Aggio: Certainly it's always desirable for the parties themselves to resolve any issues with respect to pay equity. That avenue, however, is always available. What we're concerned about, however, is the legislative requirement now for either party to initiate the requirement to negotiate, which the proposed amendments obviously obligate. With that there, there is not a lot of incentive in a lot of cases for a bargaining agent, for example, to negotiate a resolution. If at the end of the day their objective is in fact to involve the commission --
Ms Murdock: A resolution for pay equity itself, keeping that separate and apart from standard negotiation procedures.
Ms Kay-Aggio: Certainly.
Ms Murdock: Okay. To me the word "maintain" can be interpreted in a way to mean "to keep it at" and not necessarily mean that it also consider changed circumstances.
Ms Kay-Aggio: The obligation to maintain, we would submit, does in fact encompass the obligation to take into account any changed circumstances. If something happens in your organization and there's a reorganization such that the jobs are now out of line, then obviously your obligation to maintain is going to obligate the employer to look at that and to make sure that pay equity is still being maintained, notwithstanding what has happened in the organization.
Ms Murdock: Actually, it helps with the thinking here. Just to carry that a step further -- not to say that public school boards or any school boards would do this -- there are instances where jobs have been eliminated, at least on paper eliminated, or changed in such a way that they no longer exist; the person is still there but the job is no longer there. You know what I'm saying? In terms of maintenance, where the employer makes the decision that it's maintained, and taking into consideration changed circumstances, with the requirement under section 14 in Bill 102, it would then give a different dimension to the possibility, at least in a unionized setting, where there would be a bargaining agent to argue that that job still exists even though it has been restructured, if you get my drift. You know what I'm saying? I realize that every presenter that comes before us is very specific to its own personal needs and its own experiences, but in reality, this bill has to, as you know, apply to the entire province and doesn't cover just the public school sector.
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Ms Kay-Aggio: Unquestionably. Just along those lines, however, it's our position that in that situation where the union is concerned and is not in agreement with what the employer has done, whether it's an obligation to maintain, the current provision, section 22, in our submission, provides an adequate remedy for a union to challenge or to assert that the changed circumstances have rendered the pay equity plan inappropriate. We don't consider that subsections 14(1) or 14(2) add anything more to that, but rather simply complicate the process and make it more administratively burdensome. That's our objection with respect to the amendments.
Ms Murdock: This sounds strange, but I'm personnel chair of my caucus and I negotiate contracts with my union and this morning at 8 o'clock I had a labour-management meeting because we have them ongoing; I presume that you, as your school boards, would do the same. Would not much of this already be done? Within your own experience, would it not be ongoing?
Ms A. Janet Beer: I'm sorry, I don't understand the question. What would be ongoing? Negotiations for --
Ms Murdock: Yes. Would you not already discuss many of these kinds of situations where jobs would be changed or the changing circumstances would be discussed, that you may never really go through section 14 on a formal basis?
Ms A. Janet Beer: There are two very different issues. One set of negotiations is accommodated by the Labour Relations Act, which obviously would encompass things like jobs, in terms of compensation, and there are already provisions under the act that talk about where you have a male and female comparator, when compensation kicks in, if they are in two different bargaining units. All of that will happen under the Labour Relations Act.
But in our view, the changed circumstances provision applies to renegotiating a pay equity plan. Those are two very separate things. In fact, in many of our cases pay equity was actually negotiated away from what we call the negotiated table under the Labour Relations Act.
Ms Murdock: Yes. I would expect that.
Ms A. Janet Beer: So there are two very different processes.
Ms Murdock: Yes. In truth, I would expect that pay equity would be discussed at a different table.
Ms A. Janet Beer: In true normal consultation with any union about organization these issues would certainly come up, but where a dispute arises under changed circumstances, and I assume in the scenarios that you're looking at it would be a dispute, whether the employer did or did not and whether the union contends they did or did not, then the remedy is there under the act to apply to the commission.
We do not believe that it's necessary to renegotiate pay equity because one party is of the view that a changed circumstance has occurred. Most of this will be taken care of. However, there is remedy under the act now so that if a dispute arises the commission can look into changed circumstances and can indeed require that adjustments be made to the plan. So it is really a second level that in our view is not warranted, not necessary.
Ms Murdock: In regard to the selection of potential proxy employers, I know that later on in your submission you had orally stated that much of the information in your plans you would already have on file, where you say here, "It assumes the ready existence of such data." But I do like the idea of the clarification needed in terms of, if you don't have that data readily available you should have the right to say you don't have that, and the point was made by a group this morning of the onerous obligation of the proxy employer. So that point has been made and I'll certainly be discussing it.
My question basically is, would you not already have much of the information on file in terms of the seeking employer, indicating in their application not the job description but the function and duties? Would you not already have that?
Ms A. Janet Beer: We have the information. Our concern is that it's not necessarily readily available. If we are going to be a proxy organization --
Ms Murdock: We'll make that assumption that you are.
Ms A. Janet Beer: If we are going to be a proxy organization that's subject to the time-line provision in terms of complying with when the information is available, we believe that we should do the work and we can do the work. It's not necessarily readily available, but the employer can put that together.
We have a much larger concern that you are a potential proxy organization, and for each request, if you will, the data are different. In many of our boards, where we employ hundreds of different, for instance, administrative and support positions, you're pulling out specific jobs; you're attaching them to a gender-neutral comparison system which might not necessarily be the same as the seeking organization's. There's a lot of work involved, and there is no guarantee, in our view, under this legislation that you indeed will ultimately become the proxy organization. We have grave concerns about the amount of resources that we're going to be putting in and then it may not even be used and it may not even be appropriate.
If we are going to be a proxy organization to assist in the implementation of pay equity, we have no difficulty. We do have difficulty expending all of those resources when there's no guarantee that it will be used ultimately and it's not readily available because of the different compositions of organizations. We're going to be pulling out specific jobs with descriptions, specific plans, and each request will be different. In some communities, a school board, for instance, may be targeted by several seeking organizations. Each request is going to be significantly different in terms of what you provide.
Ms Murdock: So clarification is required in terms of specifics as to requests?
Ms A. Janet Beer: Absolutely; not only specifics as to requests, but maybe a mechanism to more clearly define who is a proxy organization before the work is done.
Ms Murdock: Okay, and the time lines, the 60 days, I presume, not being long enough, what would be long enough?
Ms A. Janet Beer: We obviously believe 60 days is not long enough. I can throw a figure out to you of 120 days, but I think in each individual case, if there is a concern, there should certainly be something that says an employer can indicate that "We simply can't meet that request," because whatever crisis is on their plate of the day and perhaps apply for an extension, if you will; perhaps 120 days and an extension if warranted.
Ms Murdock: So if there were clarification on some of your other points, would the 60 days be enough?
Ms A. Janet Beer: I would still like to see a mechanism to say that it may be an extension where warranted, simply because a lot of our smaller organizations have employees who not only handle personnel; they handle finance, they handle budget. If these requests come in March when we're doing budgets, there are other things that have to take precedence; if they come in over the summer, obviously we can comply. It depends.
Ms Murdock: I used to teach.
Ms A. Janet Beer: So you understand. It depends, but there are times of the year when we will simply not be able to meet that, given our other commitments.
Ms Kay-Aggio: Another concern we have with respect to the time lines is that, assuming our desire to see some language in there whereby potential proxy employers can challenge their identification as such, obviously the 60-day time limit or 100-day time limit currently flows from the date the request is made. There has to be some recognition, however, that if a potential proxy employer challenges the identification of themselves as such, somehow the time lines can't continue to run while that issue is being considered. We hope to see an appeal route to the tribunal with respect to the commission's decision on the employer's challenge, in which case most employers are not going to be pulling all of this information until that issue is resolved. So there has to be a meshing of the language to take into account that eventuality, which we certainly would like to see in the legislation.
Ms Murdock: Okay, thank you. I'm sorry, I probably used all the time. Did anybody else have any questions?
The Chair: Thank you, Ms Murdock. Any further questions?
Ms Poole: I just had a question for clarification, actually, that I was hoping perhaps the parliamentary assistant could make for us. When you are looking at the selection of the proxy employer, there obviously isn't any limit to the number of potential proxy employers that they go and request the information of. Could they go to two dozen?
Ms Murdock: You have to get a certificate from the Pay Equity Commission, which must be attached to the proxy group. I don't think there's a number specifically, but I'll defer to Jane because she's been intimately involved with this.
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The Chair: Please identify yourself for the record.
Ms Jane Allan: Jane Allan, Ministry of Labour. There's actually a schedule, a regulation that was tabled yesterday, and that sets out the types of seeking organizations and what type of proxy organization they can go to. There are certain rules around how they go to those proxy organizations. You can only go to that type of proxy organization in your geographic district. So right away there's a limitation on what proxy organizations you can choose, the type of organization and the geographic area you can look in.
Ms Poole: Let me just understand what the procedure is. At what stage does the Pay Equity Commission give out the certificate? Is it after initial inquiries by the seeking employer, where he has actually gone out and approached some of the proxy organizations and said, "Can you give us this data so we can determine if you're the best fit?" At what stage does the certificate take place?
Ms Allan: It happens at the very beginning of the process. A public sector employer first of all has to show to the pay equity office that it cannot achieve pay equity for all its female job classes using either job-to-job and/or proportional value. If it can show that, then the pay equity office will approve that it is indeed a seeking organization and then it can proceed to approach the potential proxy organizations. It will have to provide a copy of that certificate saying it is a seeking organization in order to get the information from the potential proxy organizations.
Ms Poole: So the certificate only certifies it as a seeking organization. It doesn't really say that it's a seeking organization that can only go to these other proxy employers. Actually, they could then go to 20 employers with this certificate.
Ms Allan: It depends. It will then have to follow the rules set out in the regulations and in the schedule in those regulations. Those regulations will say, for instance, if you're X type of seeking organization, say a child care centre, in the schedule that was tabled yesterday, it would send you to a municipality with a child care centre as part of it. So you only have the choice of going to that type of proxy organization. There may be two, there may be six, in your particular geographic district, so that will be your range of choice. It depends where you are and what type of proxy organization you have been sent to in that schedule.
Ms Poole: How specific will that be? What I'm trying to get at is, if for instance it was a child care organization, would 10 different child care organizations be able to go to the school board and say, "We want you to determine this information for us"?
Ms Allan: That's right. In this case, the child care centre would go to a municipality with a child care centre. There may be a number of child care centres in that geographic district that go there. Mind you, they're all going to come with more or less similar job classes. We think that will decrease a lot of the work for the proxy organizations, because they'll be looking for job matches for a child care worker or a cook or maybe one or two other job classes, but it won't be a significant number. A lot of the work will duplicate when the proxies are actually looking for those types of similar female job classes.
Ms Poole: Thank you for that information. I just wondered if any of the people from the school board would like to comment on that. Does it alleviate your concern at all or are you still concerned that the resources will not be there to affect many applications?
Ms A. Janet Beer: The resources will be there if we are a proxy organization, because we believe as a proxy organization we will assist whomever to achieve pay equity. Our concern is that we could be a potential proxy organization, that the work will be done and not necessarily be used. We have no problem being a proxy organization. I will tell you however that we have difficulty even in compiling our own data provincially when we have the same title on two jobs, where the jobs are very, very different. So I have some concerns on how often this information will be gathered, and it will be similar, because we find even among our own organizations no two jobs are alike.
Ms Poole: Just one final very brief question. When you were talking about the 60 days being an insufficient time in certain instances to gather data, would you then be satisfied if the 60 days was in the legislation as long as there was a mechanism to extend that time frame with reason?
Ms A. Janet Beer: I think so. The 60 days really goes to when the request comes in. Quite frankly, some of our smaller boards with less resources at certain times of the year will simply not be able to comply.
Ms Poole: As long as you have that flexibility then, you'd be satisfied with the 60 days?
Ms A. Janet Beer: Yes.
The Chair: Ms Nyberg, Ms Beer, Ms Kay-Aggio, Mr Benson, on behalf of this committee I'd like to thank you for taking the time out this afternoon and giving us your presentation.
ONTARIO FEDERATION OF LABOUR
The Chair: I'd like to call forward our next presenters from the Ontario Federation of Labour. Good afternoon.
Ms Julie Davis: We're early. I thought I had lots of time. I was talking to the Treasurer about budgets and deficits.
The Chair: Just a that reminder you'll be allowed up to an hour for your presentation. The committee would appreciate it if you'd keep your remarks a little shorter than that to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, please identify yourself for the record and then proceed.
Ms Davis: I'm Julie Davis and I'm secretary-treasurer of the Ontario Federation of Labour. With me today is Carrol Anne Sceviour, who is the women's issues director for the federation.
Our federation represents 800,000 members, over 300,000 of whom are women. Most are in jobs which historically have been undervalued and underpaid. For almost two decades, our federation has worked closely with the women's community and the New Democratic Party to correct this injustice by securing legislation that recognizes equal pay for work of equal value. We therefore welcome this opportunity to comment on the Pay Equity Amendment Act, Bill 102.
We want to start by congratulating this government for tabling amendments to the act that will extend pay equity benefits to thousands of women who are presently excluded. We particularly support your commitment to making sure pay equity applies in predominantly female workplaces where no male comparator jobs exist. These changes represent ground-breaking advancements in the elimination of wage discrimination. In addition, we are pleased with the proposal of workplace postings to ensure that everyone is fully aware of their rights.
The NDP and pay equity advocates have a long history of working together in Ontario. We were all pleased and hopeful when this government took office. Right from the start, you put equity principles into practice, from the unprecedented number of women in cabinet, child support legislative reforms, an employment equity strategy, parental leave reforms, pay equity changes and decisive action on the issue of choice.
You have also implemented far-reaching changes that have opened up the entire government process and made it more accessible to the people of the province. You have said, "These are the government agencies, these are their mandates, this is who sits on them and this is how you apply to serve on them." You have said, "This is how government works; this is how you get from A to Z; this is how the decision process works."
You have asked for input from women who have never been respectfully addressed and considered by government before. The changes you are making have certainly helped to empower women and definitely go far beyond anything proposed by the former Liberal government, and I would add, the former Conservative government as well.
It was in this spirit of change and hopefulness that the consultation process around Bill 168 took place. The process was extensive and productive. Advocates lobbied strenuously for amendments to extend rights under the act, and you worked closely with the community to develop a bill that was clearly workable, and I think most of all, fair.
Our federation appreciates your reaffirmed commitment to provide pay equity funding, demonstrated by the child care down payment and the statement in the House that you will release further pay equity funding by March 31 this year.
However, when we examine Bill 102, it seems to many of us that somehow our process has broken down. Although Bill 102 incorporates many of the important recommendations we have called for, it was developed without consulting in the same way the community you have worked so closely with over the past two years. The timing has been changed significantly and unfortunately some see Bill 102 as it now stands as a possible step back from your public commitment to the women of Ontario.
We understand that the province has inherited financial difficulties. Without a doubt, Ontario has been hammered by the recession. The federal government's strategic cutbacks in transfer payments have made things even worse. However, we respectfully submit that to conclude that pay equity is too expensive at this time is a mistake. We know that pay equity is an essential investment in the economy of Ontario, that pay equity adjustments to women will go right back into our economy. We would say that pay equity could be a major part of the economic solution.
For this reason, we ask for the opportunity to put the consultation process back on track. We're not here today pressing for substantial or clause-by-clause amendments, but what we do want now and what we believe to be reasonable and possible are amendments that will increase the number of women covered by the act and some further refinements and clarifications before the bill is proclaimed.
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Pay equity advocates and practitioners recognize that Ontario's present Pay Equity Act is flawed and that it needs a major overhaul. The OFL is in full agreement with the Equal Pay Coalition that major revisions are necessary, but we also recognize that in 1995 the opportunity will present itself with the sunset clause.
In the short term, therefore, we propose the following steps.
The first is to include women who work in under-10 private sector workplaces. The preamble is the first area of the bill we wish to address. We strongly urge you to reconsider your decision to exclude women who work in private sector organizations with fewer than 10 employees. A woman's equality must not be based on the size of her workplace. Changing the preamble to the act so that women in under-10 private sector workplaces have the right to make complaints would take care of this problem.
Since these women already have a right under the Human Rights Code to complain about wage discrimination, it only makes sense to formalize their rights in the Pay Equity Act as well. The OFL fully supports the position of the Equal Pay Coalition outlined in a November 13, 1991, letter to Minister Silipo, who was then the Chair of Management Board of Cabinet.
Our first recommendation is the addition of a new section 1a to read:
"Employers are prohibited from discriminating on the basis of gender in the compensation of employees employed in female job classes in Ontario. All employees employed in female job classes in Ontario shall be entitled to equality in compensation with male job classes."
Secondly, we think it's important to keep the definition of "crown employer" fair. Bill 169 and section 2 of Bill 102 define an employee of the crown. We believe that the four-pronged criteria set out by the Pay Equity Hearings Tribunal to determine employers for the purposes of pay equity are fair. The tests set out in the Haldimand-Norfolk decision are very precise.
Your proposals, however, will close off the right of groups to apply the Pay Equity Hearings Tribunal's definition of a "pay equity employer" to the provincial government. They will restrict others from exercising similar rights when building the same case. By limiting the ability to meet the criteria in this way, you are in fact removing rights that have already been established to correct wage discrimination. So our second recommendation is that Bill 169 be withdrawn.
Our third is that section 2 of Bill 102, "crown as employer," be deleted and our fourth is that the OFL recommends that subsection 23(2) be deleted.
Next, we want to talk about protecting pay equity maintenance. Maintenance of pay equity is a key component of any pay equity plan. Since regulations are made through order in council by cabinet and not through debate in the House or consultation with those who would be directly impacted, giving regulatory authority to define and retroactively limit pay equity maintenance is another example of removing rights that already exist.
These amendments would allow future governments to undo maintenance of pay equity, so our fifth recommendation is that we recommend deletion of the following: section 6 of Bill 102 amending 8(5) of the act, subsection 22(1) amended by adding 36(f.1) of the act and subsection 22(3) amending by adding 36(2).
Eliminate payout delays: Throughout the public consultation on pay equity amendments, the intention was always to extend rights and coverage of the Pay Equity Act. Our federation is therefore concerned about the proposed delay in the payout of pay equity adjustments from 1995 to 1998.
Although we discussed a number of different options during our earlier consultations, this delay which we believe is a step back from your original promise of ending wage discrimination was never considered. The three-year delay will affect public sector women who have succeeded in finding job-to-job comparators, as well as having a serious impact on the pensions of women nearing retirement, so our sixth recommendation is that subsection 7(1) of Bill 102, which repeals subsection 13(7) and replaces it with (7) to (7.3) of the act, be deleted.
Extend changed circumstances amendments to the unorganized: Our federation does support your proposed amendments on changed circumstances. Subsection 14.1(7) addresses the concern of pay equity advocates that in changed circumstances, when a plan has to be amended, pay equity adjustments cannot be less than before the plan was amended. However, we would also like to see this right extended to the unorganized. Therefore, we are recommending that a new subsection 14.2(1b) be added using the same wording as 14.1(7).
Proportional value: Here we want to talk about clarifying and adjusting. Section 12 of Bill 102 provides for a comparison method called proportional value. The federation supports the general direction of the proportional value amendments, with some clarification and adjustment in a couple of areas.
For example, the section is unclear on what would happen if an employer, when required, fails to post a pay equity plan under the job-to-job provision of the current act and uses this amendment on proportional value for all the female job classes. Can the employer argue that by using proportional value he's not required to start adjustments until January 1, 1993, or will the employer still be required to comply with the job-to-job time lines in the act for those female job classes where job-to-job comparisons are possible?
In order to clear this up, we are recommending that an amendment be added to read:
"21.2(1b): Employers are required to comply with the job-to-job time lines and adjustments under the act for those female job classes where job-to-job comparisons are possible."
Protect the self-management principle: The federation also supports the government's proposals to leave the bargaining of the how of proportional value to the affected parties. This complies with the self-managed principle of the act. We are concerned, therefore, by a proposal to give future governments the ability "to prescribe in regulation the method or methods of proportional value comparisons." We cannot support any new measure that threatens the self-management principle. Therefore, the OFL recommends that the proposed amendment to clause 36(g.1) of the act be deleted.
Compare female job class with one male job: Section 21.3 states that pay equity is achieved under the proportional value method of comparison when a female job class is compared with "a representative group of male job classes." We believe that in some circumstances one male job class is sufficient for a comparison, and accordingly we recommend that clauses 21.3(1)(a) and (b) be amended to delete "a representative group of," and further, that "classes" be amended to read "class(es)".
Honour original proportional value time lines: Bill 102 extends the time lines for first adjustment for proportional value from January 1, 1992, proposed in Bill 168, to January 1, 1993. When Bill 168 was tabled, a number of our affiliates and employers proceeded to bargain in good faith based on the Bill 168 time lines. Commitments were made and adjustments were promised. Extending those first adjustment time lines has created tense labour relations climates where women who were banking on increases are now being told they must wait. Accordingly, the OFL recommends that clauses 21.10(1)(a) and (b) be amended to read "1st day of January, 1992."
Proxy comparison: to clarify proxy comparison terminology: Our federation still holds the position consistent with the current act and outlined in our March 1991 response to The Ministry of Labour's Information Paper on Extending Pay Equity by Proportional Value and Proxy Comparison. In that document we stated, "The OFL believes that the proxy method must allow for female job classes to compare to the male proxy job class and the adjustment should be the male job rate."
To identify wage discrimination, female job classes are compared to male job classes using a gender-neutral comparison system. Your new proposal moves away from this principle. Having said this, there are areas in the proposed amendments that must be addressed.
We support the position of the Equal Pay Coalition that the terms "proxy", "seeking organization" and "proxy method comparison" are inadequate. As they explained in their brief, the word "proxy" is not generally used by the public and carries the unfortunate dictionary definition of "authority to act on behalf of another."
This implies a shift in control away from the workplace which needs to make use of the cross-establishment method of comparison in order to achieve pay equity. The terms "comparator organization" and "cross-establishment organization" are more accurate and understandable terms than "seeking organization" and "proxy organization." Further, using "cross-establishment method" better conveys the meaning of the comparison method, rather than "proxy method comparison."
Section 13, amending 21.11(1) of the act, defines "key female job class". There needs to be clarification to ensure that where a bargaining agent exists, "key female job class" refers to those inside the unit. Accordingly, we recommend that an addition to 21.11(1) be made to read "where there is a bargaining agent, the female job class inside the bargaining unit"; further, that the term "key" be amended to read "benchmark".
Honouring the original proxy comparison time lines: Our federation maintains its position that the government should follow through on its commitment in Bill 168 in regard to time lines, and therefore we're recommending that 21.11(1), referring to pay equity achievement, be amended to read "1st day of January, 1993.
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We would like to see the process kept simple. The proposed changes to subsection 21.15(5) of the act address the issue of what happens when a similar female job class for purposes of comparison cannot be found. We do not support your proposal that would allow a proxy organization to select a group of female job classes for the purpose of comparison in cases like these. This will create not only a highly subjective process but also one that is unnecessarily complicated, will require much work on the part of the proxy organization and could result in unfair delays.
In seeking a proxy employer our affiliates believe that a simple process is the best process. Accordingly, we recommend that clause 21.15(5) be amended to allow the seeking organization to go to another proxy employer in the same geographic division. If no comparisons can be found in the same geographic division, then the seeking organization can go to the next geographic division.
Further, we recommend deletion of subsection 21.15(6).
Apply comparator pay rate adjustments to seeking employers: The maintenance of pay equity must be a key component of any pay equity plan. As with job-to-job and proportional value methods, the federation supports maintaining pay equity in female job classes using the proxy comparison method. Therefore, any adjustments in pay rate made to the comparator must be extended to the seeking female job class as well.
Accordingly, we recommend that proxy employers be required to report to the pay equity office any increase to a proxy comparator job rate. The pay equity office would then inform the seeking employer and the bargaining agent, if any.
Streamline information request process: The section of the bill that deals with obtaining information from the seeking organization is clear and fairly easy to follow. However, we think there are two areas which would make the process more complex than it need be.
Clause 21.17(2)(c) requires that requests for information be accompanied by an organizational chart. Many of our affiliates and pay equity advocates find that small organizations do not always have charts. The process of developing one could cause unnecessary delays. So we're recommending that clause 21.17(2)(c) be amended to add after "chart," "only where one exists."
As well, clause (f) is a complex and overly bureaucratic requirement that will also delay the process and, accordingly, we are recommending that it be deleted.
The federation does not support the proposed changes in subsection 21.17(4) of the act that requires proxy employers to group jobs if a similar female job class cannot be found. We believe that the method proposed is a subjective process and should be deleted.
In reading subsections 21.17(7), (8), (9), (10) and (11), it seems that there is an excess concern about confidentiality of the information used for the proxy method. Under the present act, there is no such requirement, despite the information that is now provided to meet compliance in identifying male and female job classes and developing comparison systems.
Further, since the information deals with public sector employers, is it not appropriate that information be public? Many of our affiliates probably have the information already as bargaining agents in proxy employers and seeking organizations and, accordingly, we recommend deletion of subsections 21.17(7), (8), (9), (10) and (11).
In the interest of keeping the language in the bill simple and understandable, we recommend that wording "the calculations required by" be deleted from paragraph 21.18(2)7.
Honour original first adjustment time lines: As with proportional value comparisons, we believe the government should comply with its commitment in Bill 168 on first adjustments on proxy beginning on the first day of January 1993 and, accordingly, we recommend that subsections 21.22(1) and (4) be amended to read "1st day of January 1993."
Further, it's the position of this federation that there be a completion date for payout of the proxy pay equity adjustments. In the act, the requirement for completion of job-to-job was five years from proclamation. We believe that this same time line should be followed for proxy. Accordingly, we recommend that a new subsection 21.22(4) be amended to read: "Proxy pay equity plans shall provide for adjustments in compensation such that the plan will be fully implemented not later than the 1st day of January 1998."
Subsection 25.1(2) provides that a settlement at the hearings tribunal is binding on the parties. We believe that this section should also clearly state that all settlements should comply with the act, so we're recommending that this section be clarified to read: "No employer, employee or group of employees or the bargaining agent can waive any rights or disregard any obligation under this act."
Assert hearings for unions and employers only: Clause 20(1)(d) opens tribunal hearings to include "any other persons entitled by law to be parties." We join with other pay equity advocates in the concern that this amendment could give consulting firms status that the hearings tribunal has previously denied.
The act states that the employer and the union are responsible for implementing a gender-neutral comparison system. The proposed amendment could lead to lengthy and costly litigation as consulting firms argue for status under this provision. Accordingly, we are recommending that clause 20(1)(d) be deleted.
Subsection 20(2) proposes changes to the act's subsection 32(1.1) and assumes that local unions have the same rights as employers in workplace postings. In many workplaces, and in fact I would say in most workplaces, unions can only post material that has been approved by the employer, so the federation supports the hearings tribunal or a review office having the authority to order a notice posted in the workplace relating to pay equity. However, the obligation to post must clearly remain with the employer. Accordingly, we're recommending an amendment to subsection 32(1.1) of the act removing the wording "or a bargaining agent for any employee in the workplace."
Permit bargained settlements that comply with the act: The OFL has identified a need to ensure that women workers, especially in unorganized workplaces, will have pay equity plans that comply with the act. We believe that the pay equity office should be able to bring a complaint before the hearings tribunal if an employer does not comply with a review officer's order or their plan contravenes the act. Most employers would comply in the interest of avoiding costly and time-consuming litigation.
In unionized workplaces, employers or the union can appeal an order. Historically, when faced with orders, unions and employers have often bargained settlements other than that of the review officer's order. Under the current structure, that order would sit in limbo.
The amendments we are proposing would clarify that the parties can settle a pay equity plan in a manner that differs from the order and that the order would then be revoked by settlement. However, settlements must meet the rights and obligations under the act. Accordingly, we're recommending the following:
Amend subsection 32(1) to read:
"(d) the pay equity office, where a hearing is held before the tribunal."
Amend section 34 with these subsections:
"(5) An order of a review officer is not revoked except by a decision of the tribunal or an agreement by the parties relating to the subject of the order," and the OFL further recommends that the amendment to subsection 32(1.1) of the act remove the wording "or a bargaining agent for any employee in the workplace."
"(6) No employer, employee or group of employees or the bargaining agent may waive any rights or disregard any obligations under this act. "(7) The pay equity office can request a hearing before the hearings tribunal with respect to a contravention of subsection 34(6)."
Protect public sector status: We are concerned by the proposed amendment on clause 36(h) of the act. In current law, the clause allows the government to add entities to the schedule making them public sector employers. The proposed amendment could allow a future government to amend the appendix in terms of adding or removing an organization from the public sector list. Accordingly, we're proposing to delete subsection 22(2) of Bill 102, leaving clause 36(h) of the act intact.
In conclusion, the OFL celebrates many of the achievements contained in this ground-breaking bill. We also fully endorse the presentation and recommendations made by the Equal Pay Coalition to this committee.
We in Ontario are setting global precedents. We are ahead of every other country in the world in our determination to end wage discrimination against women. Pay equity as a right is almost achievable at this moment in our social and economic history. Bill 102, with these amendments, clarifications and adjustments, will significantly increase the number of women who will benefit from our Pay Equity Act.
We would also call on you today to begin preparations for the review of the act scheduled for 1995. We believe that the complexities of the act will require study and consultation that should begin immediately, because in spite of Statistics Canada's recently released data showing that the wage gap between men's and women's wages is narrowing, we still need equal pay for work of equal value legislation. What the data shows is that women working full-time earned 2% more on average in 1991, but it also showed that the average male income remained the same.
But before anyone celebrates in this post-free-trade and pre-NAFTA era, our federation is concerned that the wage gap will indeed narrow, not from an increase in women's wages but because of a decrease of male earnings through the loss of high-paid, unionized blue-collar jobs.
For these reasons, we look forward to resuming our very positive and productive consultative relationship with this government on these extremely important amendments. This is respectfully submitted, and I'm prepared to answer any questions.
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Mr Malkowski: Thank you to the OFL for an excellent, comprehensive presentation and for expressing your concerns. I think your concerns are quite clear and quite valid. I'm sure we're all in agreement that this is part of Agnes Macphail's goal to see pay equity become a reality.
I'm just wondering if you would mind clarifying or expanding more on your concerns about extending the time lines from 1995 to 1998. Can you explain more of what the impact would be with that kind of delay?
Ms Davis: Any delay in payout of dollars to women who are entitled to them means first of all that they're earning money right now, so that they have less money that provides the kinds of things most women work for, which is food and clothing and housing for themselves and their families. If they're older women, what it means is that their pension contributions are less. Accordingly, when the time comes for them to retire, they will receive an even lower pension than they might have otherwise if the pay equity payouts had been paid ahead of time.
We're concerned on two fronts. We're concerned about the quality of life of working women and their families now. We're also very concerned about the quality of life for older women when they retire, because we know that next to children older women are in fact the poorest members of our society.
Mr Malkowski: Just as a follow-up on that, I'd like to ask, maybe to the parliamentary assistant, or maybe the policy person could respond to this. I'm just wondering about the concerns about the proxy method as compared to the cross-establishment method. Can you explain more about what the concerns are and what is happening with that?
Ms Murdock: Proxy and cross-establishment are one and the same. It's just different terminology. What both the Equal Pay Coalition and the OFL have asked is that the language be changed from "proxy" to "cross-establishment."
Ms Davis: We have done so because we believe that the public will more easily understand the words we've chosen than "proxy," because of the way in which "proxy" is generally used in society today.
Mr Malkowski: I would ask the PA to just share these concerns with the minister and inform him what the recommendations are as far as changing the terminology is changed.
Mr Lessard: I'm interested in your recommendations with respect to Bill 169 and the fact that you'd like to see that one withdrawn. I guess my one concern is with respect to the autonomy of local boards and agencies and the impact that might have on them. It's my understanding that it is important to have local boards and agencies have that autonomy, because they're more accountable to their individual communities and regions.
I wonder if, in taking the position you do that there should be the ability to have the crown declared as the employer, we're sort of taking on the responsibilities that should be taken on locally.
Ms Davis: Basically, our position is that the Haldimand-Norfolk test applies to the crown as the employer only for the purposes of pay equity. The only aspect of local autonomy that is taken away is the amount of pay equity adjustments that are given to the women who are comparing themselves to the crown. It doesn't take away anything else. It doesn't amend the existing collective agreements.
I will acknowledge that what it does is significant in terms of the pay equity adjustments because, generally speaking, particularly the quasi-public sector wage levels are substantially behind those of the provincial government. All it really does take away from their autonomy is in regard to pay equity adjustments. It doesn't affect any other aspect of the operation of their organization.
Mr Lessard: I'm referring to the annual report from the Pay Equity Commission, and that has a summary of the Haldimand-Norfolk decision, and it refers to the four criteria that you've mentioned in your submission that would be used to make a determination as to who the employer is for employment equity purposes. It's my understanding that in that case it was found that the municipality was the employer of the police for the purposes of pay equity and it really didn't refer to the crown, and that ability to have a municipality, for example, declared as the employer for the purposes of pay equity would still remain after Bill 169 was passed.
Ms Davis: I think it's my understanding that the way that it's going to apply is it's going to take -- pardon?
Ms Carrol Anne Sceviour: There's been a recent CAS decision in Kingston.
Ms Davis: Yes, there's been a recent decision in Kingston, where a children's aid society was found -- it was found that the crown was the employer for that group. I think it's the intent, if it's not clear, to close off all of those loopholes. I just think it's unfortunate, because while I'm fully cognizant of why the government is doing this, because of what it means in terms of dollars in transfer payments, none the less it is in fact ensuring that some women are not going to get the kind of pay equity dollars that they should be getting.
Mr Tilson: You know, you people criticize and quibble, but you're not appealing this decision. You have something to do about it, and this is what you do with this legislation. Your Premier stood up and criticized them for not appealing those decisions.
The Chair: Mr Tilson, Mr Lessard still has the floor.
Mr Lessard: You understand that it's fairly important for the government to be able to determine the size of the civil service, and it was brought up this morning during questioning that in order to permit these declarations that you're referring to, it might lead to the expansion of the civil service to points that we're not really sure of at this point. You did refer to the cost. You understand the position that we're in. I wonder whether you have canvassed the positions of the opposition, for example, with respect to their positions on that issue.
Interjection.
Ms Davis: I know that under --
The Chair: Would you please come to order.
Ms Davis: I think the question was to me. I know that under the previous government, when the Haldimand-Norfolk decision came out, we were advised by the government of the day that it was intending to repeal the legislation so as to make sure that didn't happen and, in fact, to overturn the Haldimand-Norfolk decision. They may be sympathetic today to our position, but they certainly weren't sympathetic to our position at the time that it happened.
Ms Murdock: Actually, this came up yesterday, because it struck me that when the Equal Pay Coalition was talking about the maintenance aspect, it didn't use the word "coattail," but if there was an increase, say, in the proxy group, that then the comparator should be notified and that those increases be accorded.
Ms Davis: For maintenance purposes. We've said the same thing.
Ms Murdock: Yes, and you said the same thing on page 8. But as I thought about it, I'm sort of surprised, because as I talk it through in my head, I was thinking, "Does that mean that henceforth those increases would end up being automatic?" I guess what I'm saying is that you'd have almost a situation where you'd have a single entity determining the wage for a particular group throughout the province.
Ms Davis: I don't think that's the application, but the principle of maintaining pay equity once it's achieved is already in the existing act. We don't want to go through all of this work, only to find, two or three or four or five years later, that it's all undone, which is why we fought hard to have that in the original act and why we're fighting hard to have it in any amendments to the act. The maintenance aspect of it is very important and I don't know that there's any other way to do it.
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Ms Murdock: It was just an interesting philosophical kind of thing because, when equal pay came in yesterday with the idea -- I hadn't thought of it actually before. I mean, obviously, you have to maintain it because 10 years from now you don't want to be going through this whole process all over again.
Ms Davis: Absolutely not.
Ms Murdock: I would hope it took us long enough to get here. But, having said that too, I also would not want to think that a determination by -- say I'm in a comparator group for whatever and a proxy group is making the decision for my salary henceforth. I am surprised that the OFL, where you bargain for wages and benefits and so on, would take that position.
Ms Davis: There are a number of things: One, there's nothing to say that the seeking organization, if I can differentiate between the comparator organization -- there's nothing to say that that bargaining unit may not go ahead of the comparator organization for a start. There's no limit on our ability to do that. What we're saying is there's a minimum we have to have; nothing to say we couldn't go beyond that.
Secondly, the review of the act in 1995 -- and I assume further acts will have further review processes built into them. We're breaking new ground here. This is something that hasn't been done anywhere else in the world and I think we're going to have to keep looking at it and keep judging it as we go along. It may very well be that the maintenance provisions we're seeking now, five years from now, will say, "Well, no, that didn't work and we have to go back to the drawing board, but none the less, it's the best." Because this is new, because it's not been done anywhere else, this is the best method we can come up with, but we recognize that it's untested and that we were going to have to review it in 1995 and review it subsequent to that.
The Chair: Mr Curling.
Mr Alvin Curling (Scarborough North): I'm going to give my time to Ms Poole.
Ms Poole: And I will be leaving some time for Ms Caplan because I know she has some questions as well.
Quite frankly, I took offence at several statements you made in your brief. First of all, you make the statement, "You have asked for input from women who have never been respectfully addressed and considered by government before."
I submit to you that a number of the areas in which you have claimed victory by the NDP: "the unprecedented number of women in cabinet, child support legislative reforms, an employment equity strategy...pay equity changes..." That's all a big façade. This is a government that recently had shelters condemning it because it cut back in payments for shelters for abused women.
This is the government that is driving child care workers out of the sector and has been remiss in ensuring that those child care spaces are filled because it is cutting back on subsidies. This is the government that said it would defend women on pay equity, but it's the government that is now, almost two and a half years from the time it was elected and when it came in -- what did it do? It has put in legislation that ended up with women saying, "We've been betrayed."
It says, "unprecedented number of women in cabinet." I can tell you, there are many times, as a woman and as a feminist, I have been embarrassed by actions of some of the women in the NDP cabinet. I do not believe you put women in as tokens; I believe you put women in because they're good, they can do the job and because they're capable.
Ms Davis: Is there a question in this?
Ms Poole: There will be.
Ms Davis: Okay. All right.
Ms Poole: The second statement that you made, "The changes you are making have certainly helped to empower women definitely go far beyond anything proposed by the former Liberal government."
I can tell you that in the Liberal government's pay equity legislation, we did not delay achievement of pay equity in the broader public sector by three years. We did not give the government the right to define itself as an employer for the purposes of pay equity, which is a right no other employer has, and we did not put in provisions that threatened the pay equity maintenance, which are all three things you have said in your brief you are unsatisfied with in Bill 102.
So I say to you, given these facts -- and it's not conjecture, they're facts -- how can you say this government has done a fantastic job, that it is the only one listening to women and that it has not betrayed women?
Ms Davis: For a start, your government left 800,000 women in the province completely uncovered, so we could start from that fact. We can start from the down payments that were made to child care workers by this government, which your government didn't do. I won't indulge in the kind of excess rhetoric that you're using to talk about the members of cabinet.
Ms Poole: You've already done it.
Ms Davis: I suggest that you should watch question period some time and see the antics from your side of the House. It certainly leaves a lot to be desired and calls into question the whole political process in the province. I think people who live in glass houses should think twice before they throw stones.
Ms Poole: I find this whole process quite uncomfortable, frankly, because it is the first time in five and half years that I have felt this belligerent with a witness. But I can tell you that there are not 800,000 women uncovered by this act. In fact, the Liberal government had announced it was proceeding with proportional in March 1990, which would have brought in 350,000, and the Pay Equity Commission's figures do not show that 800,000 women were not covered by the act.
Secondly, with the down payment on child care, we have no apologies to make, because what we did with the direct operating grants from 1987 on was increase child care workers' salaries to the point where two years ago they were the highest paid in Canada by far. In fact, over the last seven or eight years, they have doubled from what the average was at that time. So I'm sorry, Ms Davis, I have no apologies to make for my government. But I assume, if you want cooperation from various opposition parties, that perhaps you should consider tempering your words and looking at the fair and balanced approach as opposed to the partisan approach.
Mrs Caplan: I just wanted to very briefly comment on your presentation and relate it to some of the words that you had said as far as the history of the development of pay equity policy. As I think you're aware, I'm quite familiar with it, and I'm quite pleased to see how it has benefited so many groups and organizations and women in this province. I think that you were correct when you said that it was historic, landmark, leading legislation which is being viewed from around the world.
The particular discussion on Bill 169 which we had this morning about the implications for the increasing size of the civil service, which could potentially be doubled or trebled from the present 90,000, is in Hansard. I won't repeat my remarks now, but I'm very aware of that concern, and I think the taxpayers of this province would also be concerned about the government having a responsibility to define how many people were in the public service, not for the purposes of pay equity but for the purposes of collective bargaining and for the purposes of the size of the Ontario public service's manageability.
I can tell you that my position on that has not changed. It has been consistent, and it is one where government must be fiscally responsible and must be able to manage. As you come before us today, I can imagine your frustration, because I think that you were duped, deceived and betrayed by the NDP telling you when it was in opposition what it would do if it were in government and now doing something very different. So I can understand that you are frustrated and that you are not pleased with this legislation because it's not what you would have expected from an NDP government. In that regard, I am sympathetic.
Mr Curling: I just want to ask you a question, Ms Davis. In your presentation, you said this is quite an advanced move towards pay equity compared to the previous government. I can understand why you're saying that, but you proceeded with many other amendments. There seems to be a number of amendments you wish to take place. If the government, because of its track record, listened to you and did otherwise, if no amendments are made or it doesn't listen to your amendments, would you find that this would be a rather regressive pay equity bill?
Ms Davis: No. Without any of our amendments, without any of the amendments I'm seeking here today, I still find that what the government is doing moves pay equity forward. I just don't think it moves it forward far enough. I would like to see it moved forward farther. I think we've said that in our presentation.
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Mr Curling: So you'd expected six steps and you get half a step.
Ms Davis: I don't know that I would quantify it like that either. What I said is that some of the amendments we've made I would consider to be housekeeping amendments; changing words, how you describe something, a seeking organization or a comparator organization versus proxy. A lot of those amendments are housekeeping amendments, and I would hope all of the parties would be able to agree to them.
It's certainly our understanding that it's the government's sense that in order to move forward on this without a lot of opposition from the opposition parties there needs to be a minimum of amendments, so we would hope that if all the things Ms Poole has said she so strongly believes in are in fact accurate, you would find your way to supporting some of our amendments. If you do that, then I think you will find that the government will be willing to consider some of them as well; those commitments Ms Poole made a few minutes ago.
Mr Curling: There is one I am sure my party would support. Do you think the government would listen to us and decide not to delay it now for another three years? It seems to me you support that too, that you're quite annoyed and disappointed that they have delayed it. You express it so eloquently --
Ms Davis: I expressed concern about the delay.
Mr Curling: -- that it creates more poverty for women, it gives them a smaller pension --
Ms Davis: Potentially.
Mr Curling: -- so they're perpetuating this poverty line. I think our government -- our party -- would support that, so we're on your side with that.
Mrs Mathyssen: Freudian slip there, Alvin?
Mr Curling: You mean the "party"?
Ms Poole: Just somewhat premature.
Ms Davis: Yes, I'm sure. I wait to see it.
Mr Tilson: I do thank you for coming and expressing your thoughts on a very difficult issue on how we're going to solve this problem. I guess the concern many people have is the issue of the delay of the decisions, the comments that there's no protection for people under 10 employees, that who can figure out what's going on with the commissions and the government agencies. Also, whether you're on the list or off the list; that's difficult as to where those people are going to be. One of the largest complaints is that this legislation is in fact creating inequity when you look at the whole process. You have indicated that if they didn't accept your amendments, you would still support the legislation.
Ms Davis: Yes.
Mr Tilson: The problem I have with that statement, which I'd like your thoughts on, is that you say that, yet you also agree with me, expressing the concerns that there are inequities being created by this legislation, that there is a whole group of women who are being ignored. To simply say that's solving the problem -- that's not solving the problem. In fact, the whole issue of delaying the legislation, and if you count the number of years forward -- I know this government. The way you're speaking, your political stripe is showing, and that's fine. We're all entitled to that, and I respect that.
Ms Davis: It's always shown, Mr Tilson. At any time I've made a presentation, it's always shown.
Mr Tilson: I have no problem with that. I respect that, as hopefully you will respect my political stripe.
Ms Davis: Absolutely.
Mr Tilson: I know the government's hoping it will form the next government. Quite frankly, I don't think they will. Whether it's an NDP government, a Tory government, a Liberal government, it is a coincidence -- unless they call an election sooner, and somehow I don't think they'll be as foolish as the Liberals. But they will wait two years; they're saying they can't afford it now. They're therefore assuming the next government is going to be able to afford it. There's a fallacy in their thinking which indeed ends up creating inequities. I guess my question is really a repetition of Mr Curling's question. How can you possibly ask this committee to recommend that we support the legislation unanimously if your amendments aren't accepted, knowing that these inequities have been created?
Ms Davis: The answer to that is quite simple. As it stands, it corrects more inequities than it leaves and provides coverage for more women than it excludes. While I would like to see the under-10s covered -- and that's the kind of issue that I think it wouldn't be very difficult to get an amendment on if there were all-party agreement on -- in the final analysis, to extend coverage to the 700,000, give or take, through the proxy and the proportional provisions is too important to not go forward.
Yes, I would like to see it done faster, while recognizing the very difficult financial circumstances this government finds itself in. Not to risk any more wrath from Ms Poole, I won't talk about inherited deficits and Tory government policies that have created some of the problems we're in. At the same time, we're still not prepared to accept that women should be the economy's shock absorbers, and that's why we think the implementation should be sooner.
Having said all that, will it, without amendments, move us forward? Yes, it will. Will it move it forward as far as we think it should go? No. But it's a question of choice, and given the difficult times we live in, the government has to make a choice. This is one it is making that we happen to disagree with. There will be, despite my political stripe, from time to time, lots of things I'm going to disagree with this government on. It doesn't mean I'm writing them off or that I'm going to walk away from them. None the less, I'm going to continue to do what is my responsibility on behalf of the people I have the honour of serving, and that is to push this government to move forward as much as is humanly possible.
Mr Tilson: One of the groups that I think you indicated your support for, that spoke yesterday, says there's never a good time. I mean, two years from now somebody could make the same argument, that the recession is still on or that we haven't come out of it yet and we need to delay further. I'm playing the devil's advocate with you because of some of the comments you're making; it's tempting to do that. At the same time, one of my arguments has been that the whole purpose, the philosophy, of the government is to do away with inequities, but by attempting to do that it is creating even greater inequities between women, let alone between men and women -- between women.
The theory that supports the delay at the same time opposes the legislation; it says that now is not the time. They talk about how in 1992 there were -- I don't know where they got these figures from, but there are all kinds of figures on unemployment; you can pick whichever ones you want. There were figures of 500 jobs per week in 1992. I don't know whether that's accurate, but there was a substantial amount of unemployment throughout this province, for whatever reason. It's no secret that tax revenues are down, again for all kinds of reasons. I could use my political stripe and say it's because of his policies, but I know I'll get nowhere with you on that.
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But the hospitals are in debt. There's no secret about that. We're very concerned about our health care. The nurses are coming in here, and already the nurses have shown that with pay equity they've lost some jobs. The universities are saying that the grants the government promised for pay equity didn't materialize. I can't remember what the figures were, but --
Mrs Caplan: It was 2,800 jobs.
Mr Tilson: It was 2,800 jobs. The grants were substantial and they never materialized. The result is that the people of this province aren't going to be as educated as we had hoped, that jobs are going to be lost. I would like you to comment on that whole philosophy. I think it was the same delegation you indicated your support for that says, "Oh, well, women will have more money and they'll be able to be taxed more." An interesting philosophy, but --
Ms Davis: And purchase more.
Mr Tilson: They will be able to purchase more and be able to be taxed more. But I can tell you that there are a lot of people out there who are scared to purchase, scared to buy because of this recession. They're worried about their jobs; they're worried about security. There are women who are worried about security and the problems that are being caused by businesses leaving the country, going out of business. The gist of it is, are these people right? Is this an improper time to bring forward this legislation?
Ms Davis: I guess the difference between you and I, Mr Tilson, is that I suspect you look at a glass and see it as being half empty. I look at it and see it as being half full, and that's how I view this legislation. It isn't all I would like it to be, and I hope the committee will, upon reflection on the proposals we have made, find its way clear to -- obviously I'd like you to move on all of them, but I certainly hope you would move on some of them, and advance another substantial number of women in this province, women who were left out of the original legislation and who have been waiting a long time for economic justice.
I can't tell you what's going to happen in 1994 with the economy; I can't tell you what's going to happen in 1995. I just know that we think it's long past time that this was moved on, and we're happy the government is moving forward with it. We would be happier if they would move forward with our amendments; none the less, having said that, we still recognize the very substantial move they're taking by introducing this legislation.
Mr Tilson: I have a feeling we'll probably never agree philosophically, but you have raised some points I'm sure the committee will reflect on. Thank you very much.
Mr Arnott: Thank you for your presentation. I would like to ask you one question with respect to one of the suggestions you've made on page 3 to include women in workplaces of 10 employees or less; nine employees, I guess. We don't have very much time, so I just want to ask you this: You've stated, essentially, in answers to some of the questions, that if the opposition parties were to support this, it would go through. I find that a highly unusual argument, and a very weak argument, given the fact that there are six members on this committee who represent the government side, and if they indeed elect to proceed with that amendment, it will pass through this committee irrespective of how I vote. I suppose if I do vote against it, which I certainly intend to do if someone moves it, I'll tell you right now --
Ms Davis: Now we know where you are, anyway.
Mr Arnott: I represent the people of Wellington -- I'm privileged to be here on their behalf -- and I know many, many merchants in small-town Ontario who aren't making minimum wage themselves. The effect of this would increase the salary or wages component of their expenses considerably, and they're not making --
Mr Tilson: That's many.
Mr Arnott: Yes, and that's family businesses. Those are people who aren't making minimum wage themselves, who are the single proprietors. For that reason I could never support this, in the present economic circumstances we're experiencing.
Mr Winninger: Are you going to send that out to the women in your riding?
Mr Arnott: I'm sure you will.
Ms Davis: It would seem to me, though, that if the employers in these private sector workplaces in your riding are making minimum wage, then I don't think they have anything to worry about, because those are the salaries the women in this workplace would be comparing themselves to.
Mr Arnott: No, they're making less than minimum wage in many cases.
Ms Davis: Then the women are already earning more than them so they wouldn't have anything to worry about, based on how you make comparisons in the workplace. We're also saying they would have the right only to make complaints, which they presently do have now under the human rights act.
Mr Arnott: How is it that it requires the opposition's consent to pass that amendment?
Ms Davis: I didn't say it required the opposition's consent to pass it. What I said is that it is my understanding that there is a number of items the government feels it would be easier to go forward with if it had all-party support, and this is one of them.
Mr Arnott: And I'm saying they have enough votes on this committee and in the House to pass it if indeed they want to.
Ms Davis: I understand that fully. I can count. I'm quite aware of the number of seats.
The Chair: Ms Davis, Ms Sceviour, on behalf of this committee, I'd like to thank you for taking the time out this afternoon and giving us your presentation.
Ms Davis: Thank you.
UNITED STEELWORKERS OF AMERICA
The Chair: I'd like to call forward our next presenters from the United Steelworkers of America. Good afternoon. Just a reminder: You'll be allowed up to an hour for your presentation. The committee would appreciate it if you would keep your remarks slightly shorter than that to allow time for questions or comments from each of the caucuses. As soon as you're comfortable, could you please identify yourselves for the record and then proceed.
Mr Henry Hynd: My name is Henry Hynd. I'm the director of the United Steelworkers of America, District 6, which essentially is the province of Ontario. The person sitting beside me is Sue Milling. She's an administrative assistant in our national office.
Let me begin by saying that the United Steelworkers of America appreciates this opportunity to comment on Bill 102, An Act to amend the Pay Equity Act.
Over the years we have worked with many members of this government to fight for advancements in pay equity, employment standards and labour relations that help to address historical pay inequities between working women and men. Amendments to the Pay Equity Act of 1987 to extend pay equity coverage to thousands of women further demonstrate this government's commitment to find ways of correcting gender bias inequities.
Our union in Ontario represents over 75,000 workers in a wide variety of environments, including steel mills, mines, manufacturing facilities, financial institutions, hotels and nursing homes. Approximately 15% of our membership in this province is female. While some of these women work in non-traditional jobs, many work in offices, credit unions, hotels, sexual assault centres, facilities for the elderly and hospitals.
These are the women, many of them in positions where there is no direct male comparator, who will stand to benefit the most from the provisions in Bill 102. As members of the Ontario Federation of Labour and the Equal Pay Coalition, we have worked with representatives of this government to find an efficient and effective means of extending pay equity to the 420,000 women denied access to the law by the previous Liberal government.
Keeping in mind the objective of achieving pay equity through a self-managed process, we have looked at Bill 102 in terms of what improvements might help to simplify the implementation of the additional steps of proportional value and cross-establishment comparisons. In turn, we have looked at possible improvements to limit the impact of Bill 102 on employers and bargaining units that have already expended a great deal of time and resources to meet their obligations under the current act.
It is our view that some of the sections of Bill 102 and Bill 169 that may constitute housekeeping amendments or in other cases the removal of rights currently available in the act should be discussed in the context of a complete review of the legislation in 1995. We support the submissions of the Ontario Federation of Labour and the Equal Pay Coalition on these matters.
In addition, the submissions you have received from the Ontario Federation of Labour and the Equal Pay Coalition are quite detailed in their comments on the proposed method for cross-establishment comparisons. Rather than focusing on this area in our presentation, we ask you to refer to their submissions, whose recommendations we support.
The Minister of Labour, in his statement to the House on November 26, 1992, indicated that government's commitment to pay equity has not weakened but the economy has. As a result, original schedules for achieving pay equity in the broader public sector are extended in Bill 102, and effective dates for cross-establishment and proportional value comparisons as initially outlined in Bill 168 have also been delayed.
Our union has been one of the hardest hit in this recession. Federal economic policies have led to the closure of hundreds of businesses and the loss of thousands of jobs. We can certainly understand the dilemma faced by this government in its desire to improve or introduce programs while continuing to control government spending in the face of rising health and social service costs. Nevertheless, we must add our voice to those urging this government to consider the effect that delaying pay equity will have on working women in this province, and in turn on the provincial economy.
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The introduction of proportional and cross-establishment comparisons in Bill 102 was not unexpected. Many employers, employees and bargaining agents, in anticipation of the passage of Bill 168, planned for adjustments for those female jobs that did not find male comparators, following the job-to-job approach required by the existing law.
In our experience, many of the female job classes that did not find male comparators are the lowest paid within an organization. It is these lowest-paid women who thus stand to benefit the most from Bill 102. In many cases, pay equity will allow these women, some of whom are now dependent on provincial or municipal subsidies, to provide for basic necessities of food, shelter, child care and clothing.
Women in job classes without direct male comparators have already had to wait longer for pay equity than women who may work right next to them. While ideally adjustments for women in those affected job classes should have coincided with the original schedule, we urge the government to reaffirm its previous commitment, as outlined in Bill 168, that required proportional adjustments to commence by January 1, 1992, and cross-establishment adjustments by January 1, 1993.
In terms of the extension to 1998 for achievement of pay equity in the broader public sector, we also recommend that the government reconsider the effect of this measure on employers and employees. Again, adjustments have been negotiated and expected. Furthermore, it is in many of the facilities in the broader public sector that we find the most glaring examples of gender-based pay inequities.
For example, we represent workers in privately owned nursing homes that fall under the definition of "broader public sector." Many of these employers operated for years without a union, paying substandard wages to nurses' aides, registered nursing assistants and those involved in the day-to-day care of the elderly.
The Pay Equity Act and Bill 102, in providing access to proportional and cross-establishment comparisons, have opened the door for many of these women to seek fairness in compensation practices. Their employers benefited for years in the absence of pay equity legislation. If they must now curtail costs to achieve pay equity by 1995, they must look at other areas of their business, not to the workers who have in effect subsidized their operations to date.
We therefore recommend deletion of subsection 7(1) of Bill 102 repealing subsection 13(7) of the act; amendment of clauses 21.10(a) and (b) to read "effective as of the first day of January 1992 or earlier"; amendment of subsection 21.22(1) to read "effective as of the first day of January 1993."
We strongly support the inclusion in Bill 102 of provisions allowing for proportional value comparisons. As noted above, it is often the lowest-paid job groups without direct male comparators and those in predominantly female workplaces like nursing homes who will benefit from this initiative.
Our participation and consultations regarding proportional comparisons were motivated by an interest to ensure that the process outlined in the legislation was easy to implement for committees with little background in, for example, the mathematics of wage lines or regression analysis. It has always been our expectation that amendments to the act would be consistent with the self-managed approach in the existing legislation. As a result, we would like to focus on a couple of amendments to part III.1 of Bill 102, which we believe will assist those who must look at proportional value comparisons.
Section 21.2 of Bill 102 outlines when an employer shall use the proportional value method of comparison. It also ensures that proportional adjustments shall not be less than adjustments that may be required following the job-to-job method of comparison. Unfortunately, it is not clear that an employer should look first at job-to-job comparisons, in accordance with the existing act and schedules for posting and start dates for adjustments, before looking to proportional value comparisons. This is particularly relevant to employers who are late in meeting their posting requirements. We therefore recommend amending section 21.2 of Bill 102 to read:
"Any employer who has failed to post a pay equity plan and who can achieve pay equity for some or all of its employees in female job classes under the job-to-job method of comparison must do so before using the proportional method and must comply with the schedule for adjustments found in clause 13(2)(e)."
There are a number of different methods committees may follow to determine proportional value comparisons. In some cases, like in a nursing home or a home for the aged, there may be one or two male job classes to evaluate when determining what, if any, proportional adjustments may be required. We would therefore support language that allows for proportional comparisons to be made to "a male job class or male job classes" rather than to a "representative group of male job classes." We therefore recommend amending section 21.3 to read:
"(1) Pay equity is achieved for a female job class under the proportional method of comparison,
"(a) when the job class is compared with a male job class or 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 rates for the male job class or classes bear to the value of the work performed in that class or those classes."
Amend subsection 21.3(3) to delete "representative group of male job classes" and replace it with "male job class or male job classes."
Three sections of Bill 102 propose amendments that provide for regulatory authority that could limit the maintenance of pay equity. Implementing pay equity in many organizations has not been easy. Overcoming years of discriminatory pay practices has not happened without considerable struggle on the part of the unionized and non-unionized women and men. Many of these employers who are now in a phase of maintenance have looked at ways of reorganizing work or redefining jobs as a possible way of evading their pay equity obligations. We cannot help but be concerned about employers' efforts and sections in Bill 102 that would allow future governments to revise, perhaps retroactively, provisions in the act regarding maintenance without a full debate in the Legislature. We therefore recommend the deletion of section 6 of Bill 102, amending subsection 8(5) of the act; deletion of subsection 22(1) of Bill 102, amending section 36 of the act by adding (f.1); and deletion of subsection 22(3) of Bill 102 amending section 36 by adding subsection (2).
We support section 9 of Bill 102, which amends section 14 of the act to allow for changes to pay equity plans as a result of changed circumstances. In particular, we were pleased to note the inclusion of 14.1(7) to ensure that adjustments for job classes in the amended plan will not be less than those in the original plan. We recommend that a similar provision be added as a new subsection 14.2(1) to apply to non-unionized environments.
There is an attempt in Bill 102 to clarify the role of the Pay Equity Hearings Tribunal. We look forward to a complete review of the Pay Equity Act that will allow for a much-needed discussion on the legislation, implementation and appeals process to date. However, in the meantime, we support amendments to the act that will help to ensure that pay equity settlements are indeed in compliance with the act. We therefore recommend that you amend section 17 in Bill 102 to amend section 25 of the act to read:
"No employer, employee or group of employees or the bargaining agent can waive any rights or disregard any obligation under this act."
We further recommend to amend section 34 of the act by adding the following subsections:
"(5) An order of a review officer is not revoked except by a decision of the tribunal or an agreement by the parties relating to the subject of the order.
"(6) No employer, employee or group of employees or the bargaining agent may waive any rights or disregard any obligations under this act.
"(7) The pay equity office can request a hearing before the hearings tribunal with respect to a contravention of subsection 34(6)."
With respect to standing at the tribunal, we take this opportunity to support many other pay equity practitioners in calling for the deletion of clause (d) in subsection 20(1) of Bill 102 that could lead to many consulting firms requesting status at the tribunal. Responsibility for pay equity plans rests with the employers and bargaining agents, not consultants.
Finally, subsection 20(2) of Bill 102 suggests amending section 32 of the act to allow for the tribunal or a review officer to request an employer or bargaining agent to post notices relating to the act in the workplace. Unfortunately, many bargaining units can only post materials that have been approved by management. It is therefore impractical to suggest that bargaining agents and employers be required to post notices in response to requests by officers or the tribunal. This section should be amended to apply only to employers.
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In closing, Ontario's Pay Equity Act is a model of how legislation can be developed and applied to both the public and private sectors. Recognition of workers' rights to equal pay for work of equal value crosses sectoral and regional boundaries. In Bill 102, we're extending access to the Pay Equity Act for thousands of women. It could be further improved by extending similar rights to those women who work in workplaces with fewer than 10 employees.
While we are not suggesting at this time that small employers follow steps for implementing pay equity as outlined in part II of the act, the inclusion of the following will allow women to file a complaint with the Pay Equity Commission if they believe their pay is affected by gender discrimination. We therefore support an amendment to section 1 of the act to state:
"Employers are prohibited from discriminating on the basis of gender in the compensation of employees employed in female job classes in Ontario. All employees employed in female job classes in Ontario shall be entitled to equality in compensation with male job classes."
On behalf of the United Steelworkers of America, we appreciate your consideration of our submission. We have pay equity legislation thanks to the dedication and years of hard work of New Democratic Party members. Ontario's Pay Equity Act, together with an improved Bill 102, will not only further demonstrate this government's commitment to the women of this province, but set a precedent for pay equity legislation inside and outside this country.
Mr Curling: I really had no question, but I'll make some comment. It seems to me that some of the presenters here -- I just want to correct the record -- felt that pay equity was brought in by the New Democratic Party, which isn't so. However, I want to commend you for bringing forward your brief.
The previous presenter and yourself identify a number of things that are wrong with the amendments to the pay equity legislation. I'll ask you the questions I asked the previous presenter. If none of these amendments is looked at, would you still think this is a progressive piece of legislation?
Mr Hynd: You're asking me a question? I thought that you weren't asking questions, that you would only make a point. Sorry.
Mr Curling: It's okay. I'll pass.
The Chair: Go ahead.
Mr Curling: I'll ask again, then. I thought you were listening to me. I'm saying there are many amendments to this legislation, which you admitted to and the previous presenter also admitted to. Do you feel that if it goes through without any amendments at all, it would be a progressive piece of legislation?
Mr Hynd: I couldn't disagree with the comments made by the last presenter. I personally would like to see, and in the organization I represent we'd like to see additional amendments made to make the act stronger. Nevertheless, the legislation, as is, is a great improvement and certainly a step forward for women and the beginning of the end of the discrimination that has been applied to women in the workplace. We would be supportive of the legislation as it currently is.
We think the proposals we have made -- and we hope the committee can support them -- our submissions and suggestions will improve the legislation.
Mr Curling: The three-year delay that has been debated, that the women of this province feel extremely let down, betrayed by this government. Do you feel it should be one of the priorities of this government to proceed and not delay the act for over three years before they can benefit from this act?
Mr Hynd: It would certainly be presumptuous of me to speak on behalf of women. You've already said women feel betrayed, so you would have to ask a woman whether she feels betrayed.
Mr Curling: I'm very surprised you feel that way. In your presentation you talked about women and you made some of those statements here in your presentation, that women have waited too long. You said that 15% of --
Mr Hynd: We've made another suggestion that the legislation be implemented in January 1992 and 1993, so you know where our sentiments lie. We would like the legislation to be implemented. The fact that there is a delay?
Mr Curling: Yes.
Mr Hynd: A delay in justice for women, but nevertheless, women will be served by the bill and it will begin to eliminate inequities in the workplace with respect to inequities in payment.
Mr Curling: Does your organization represent women?
Mr Hynd: Yes.
Mr Curling: So you could speak on behalf of some of the injustices that have been done to women in the workplace?
Mr Hynd: Yes.
Mr Curling: So I presume my question then to you, and you said you couldn't speak on their behalf, is that I'm saying the delay --
Mr Hynd: No. I said that I understood you to say women were very disappointed with this. I said I haven't spoken to all the women you obviously were making reference to. If you're asking how the women in my organization feel, I can maybe address that.
Mr Curling: I didn't hear the last part. The women in the organization feel how, you said?
Mr Hynd: If you want to ask me how I think the women in my organization feel, I can maybe respond.
Mr Curling: They feel disappointed? I'm not hearing him at all.
The Chair: He can respond referring to the women in his organization, but he can't speak for all women.
Mr Curling: That's what I'm asking. I'm asking about women in your organization then. You don't want to respond on the women in your organization? The 15% of members of your organization who are women, do they feel betrayed by this legislation that the three-year delay to implement their just worth --
Mr Hynd: As I say in my brief, we don't see the legislation as being perfect. We have offered amendments. We would like to see the legislation implemented sooner, but we have an appreciation of the difficulty in implementing the legislation sooner. I think that's reflective of how the women in our organization feel.
Mr Curling: My colleague will proceed with a question.
Mr Steven W. Mahoney (Mississauga West): I'm sorry I missed the first part, so maybe you'll bear with me if I ask a question that you already answered in your presentation. Could I understand, in District 6, which is who you're presenting of behalf of -- I assume they're the workers you represent as the director of District 6. Is that correct or are you presenting on behalf of the national Steelworkers' union?
Mr Hynd: Ontario; District 6.
Mr Mahoney: Could you just give me -- 15% of your members are women?
Mr Hynd: Approximately.
Mr Mahoney: What's your membership?
Mr Hynd: It's 75,000.
Mr Mahoney: It's 75,000. Would there be a predominant industry that those women work in?
Mr Hynd: No. We have women who work in all the industries we've identified with probably the exception of basic steel. There are very few women who work in basic steel today.
Mr Mahoney: When you're negotiating your contracts, notwithstanding whether legislation exists or not, are you addressing pay equity?
Mr Hynd: Yes.
Mr Mahoney: Are you establishing male comparators to those jobs?
Mr Hynd: Yes.
Mr Mahoney: Could you tell me how you'd do that? Give me an example or two.
Mr Hynd: We have a job evaluation system that we've worked with since the middle 1950s. It's called the cooperative wage study that was basically established between the basic steel industry and the union. We historically felt that was a good way to measure employment and therefore the payment that one received for performing specific jobs.
Mr Mahoney: So you've been practising this since the 1950s?
Mr Hynd: No. We have an evaluation system called cooperative wage study. We felt that this evaluation system was a good system. When we examined CWS using, as a criterion, pay equity, we discovered that in the system we had there were inequities. We therefore went about devising a system where these inequities were taken out of the system and we have a new system called SES -- simple, effective solution -- which is a fairly simple computer-based program whereby jobs can be measured. We have sought and received approval of that system by those who would make an evaluation of jobs so that there's no gender bias.
We have established that. We have negotiated that system with several employers. Several employers have used it to establish pay equity in the workplace. So we're struggling and trying to bargain that wherever we can.
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Mr Mahoney: Do you find yourself in a position often where you have to back off that system? I would assume the majority of the people you represent work for large, rather than small, business.
Mr Hynd: No. As opposed to the perception of our union, most of our employers have less than 50 employees. The vast numbers of our members work in workplaces with less than 50.
Mr Mahoney: The vast number of your members work where?
Mr Hynd: In workplaces with less than 50 employees.
Mr Mahoney: Out of the 75,000 members, the majority of them work in small business?
Mr Hynd: That's correct.
Mr Mahoney: Do you find, therefore, that when you're negotiating contracts you run into a conflict? Obviously, the conflict that the government's running into, having stated its philosophical approach, is it gets into the real world and finds that it's not as easy to implement these things as perhaps it thought it was when it sat in opposition, and so it's backing off. Have you found that you have indeed had to do the same thing?
Mr Hynd: I don't really understand the question. If you're committed to --
Mr Mahoney: You don't understand the question?
Mr Hynd: No.
Mr Mahoney: There's a three-year delay --
Mr Hynd: Let me answer the question, if you're going to ask it.
Mr Mahoney: You said you didn't understand it. How are you going to answer it if you don't understand it?
Mr Hynd: Then if you just listen, you may get a response to your question.
Mr Winninger: Stop badgering the witness.
Mr Mahoney: I'm not badgering him. He said he didn't understand the question.
Interjections.
Mr Hynd: I don't feel badgered.
Ms Murdock: I think he can look after himself.
Mr Mahoney: I think he can too. If you understand it, I'll listen.
Mr Hynd: What I was trying to explain to you is that with agreeing to a system that eliminates inequities that are gender-biased, you first must get the approval of the company. If the company isn't interested in that, then you're going to be unable to negotiate. It's not backing away. It's just that some things are unattainable and we must wait on the legislation being implemented before that can come to that workplace. What I was trying to say to you is that that's not always true. There are a number of employers who recognize the inequities and want to eliminate them, and we have managed to come to terms with that in bargaining and we've done that with employers.
Mr Mahoney: Could you give me some indication as to whether that's broad-based? Are we dealing with the minority number of employers you represent?
Mr Hynd: Yes.
Mr Mahoney: We're coming down with this legislation to deal with, in reality, a small number of the people who are creating the problems. If you follow me --
Mr Hynd: Not necessarily.
Mr Mahoney: If you'd just let me finish --
Mr Hynd: Okay. Go ahead.
Mr Mahoney: What I'm trying to get at is, in your experience is this a case of shooting a fly with an elephant gun in attempting to resolve a problem? I'm not saying it is. I'm asking you, in your experience negotiating in District 6, with the majority of your employers being small business people and complying with the principle that's adopted in your negotiation strategies, is this overkill?
Mr Hynd: No, definitely not. As I said to you, we had a wage evaluation system that we thought was fair, and really, when closely examined, we discovered that had sexually biased inequities in it. There's no doubt -- I don't think anybody makes the argument; there may be some Neanderthals who do -- that women have certainly been underpaid compared to males. When you make any real comparison, then you discover that women have traditionally been underpaid. I don't think this legislation will cure all of that, so I don't think you're using an elephant gun to hit some small target.
The Chair: One minute left.
Mr Mahoney: I guess you can only speak on behalf of the district which you're elected to represent, but would it be safe to say that District 6 of the United Steelworkers has some disappointment at the fact that the government appears to be backing off? I think this is the question Mr Curling was attempting to get you to answer, that the government appears to -- whether the issue is justified or not, that's not my question. That's for others to decide. Since you seem to think they invented this, according to your brief, are you somewhat disappointed that they're backing off and simply are not going to be able to follow through with their promises?
Mr Hynd: I don't suggest in the brief that the current Ontario government invented pay equity.
Mr Mahoney: No, you say "New Democratic Party members." Perhaps you mean nationally. Are you disappointed at the fact that they're backing off on their pledge?
Mr Hynd: Okay, but you can't ask me two different questions at the same time.
Mr Mahoney: Why can't I?
Mr Hynd: I have difficulty.
Mr Mahoney: Answer them both.
Mr Hynd: I would much appreciate having only one question to answer at a time. Let me just say to you that I don't suggest, in any way, that the New Democratic Party invented legislation to try to do away with the inequities that are created in the workplace.
Mr Mahoney: So you retract that from your statement.
Mr Hynd: I don't say that; if you listen, you'll understand what I say. However, what the New Democratic Party is doing is implementing legislation that will, in some way, go towards erasing the inequities in the workplace. That's the point I make.
Mr Mahoney: It's contrary to the written word, but thank you very much.
Mr Tilson: Dealing with that, sir, you've indicated that your view is that this legislation is working towards removing the inequities towards women in the workplace. Can you tell the committee whether the United Steelworkers of America supported the principles of employment equity?
Mr Hynd: Can you tell me what that's got to do with this?
Mr Tilson: Employment equity is a philosophy of this government which is to remove the inequities towards women in the workplace.
Mr Hynd: I do support that.
Mr Tilson: Sir, I'm asking you. I'd like to know what your union support is.
Mr Hynd: I just said.
Mr Tilson: I'm not in favour of it, in answer.
Mr Hynd: No, I didn't ask you. I said yes, my union supports employment equity.
Mr Tilson: Your union supports employment equity? Thank you. Sir, I think your membership will be interested in hearing that.
Mr Hynd: My membership already knows, brother.
Mr Tilson: I'm not your brother.
Mr Hynd: And I'm not your sir.
The Chair: Let's try to be a little less antagonistic.
Mr Tilson: Yes, I will try, Mr Chairman.
I'd like you to comment on the subject where you indicated in your presentation, sir, that with respect to standing at the tribunal you believe there should only be employers and bargaining agents, not consultants. I understand where you, of course, as a member of a well-known union, would say that. My question to you is that there's a large percentage of the population of women who are not represented by anyone. They are not represented by unions. Notwithstanding what this government is trying to do, which is to unionize the entire province of Ontario, and it hasn't done that yet, there are a substantial number of women out there who are not represented by bargaining agents or unions. If bargaining agents are the only ones who can represent them, who will represent them?
Mr Hynd: You're asking who would represent non-organized women?
Mr Tilson: Yes.
Mr Hynd: I would assume that non-organized women would represent themselves.
Mr Tilson: Why couldn't they have someone else?
Mr Hynd: They've chosen not to have somebody else.
Mr Tilson: No, sir. I'm asking you a question because you have indicated that you do not --
Mr Hynd: -- believe in consultants appearing before the tribunal.
Mr Tilson: No, you've indicated that you wish clause 20(1)(d) to be amended. It says that the people who would be represented at that committee by any other persons entitled by law to be parties. You've said that you do not believe that consultants should be among those people, that only bargaining agents should be there. "Responsibility for pay equity plans rests with employers and bargaining agents, not consultants." There's only a small percentage of the population of Ontario that is unionized, and my question to you is, there are a lot of women out there who will require assistance. This is a very difficult, complicated --
Mr Hynd: Women --
Mr Tilson: Excuse me, sir. If I could just finish, this is very difficult and very complicated legislation. I don't mind saying and I'm not embarrassed by saying that I have difficulty understanding a lot of the presentations that have been made to this committee. I would need someone to assist me; I would need a consultant or someone like a consultant to assist me. If only bargaining agents can represent these women, who will represent them?
Mr Hynd: I tried to answer you the first time. I'll try and say it slower this time.
Mr Tilson: Thank you.
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Mr Hynd: Women from an unorganized sector who wish to appear before the tribunal, there's no prohibition to them appearing before the tribunal and they can make their case. They have chosen, by their democratic right in Ontario, not to be represented by a bargaining agent.
Mr Tilson: Why can't they take someone in, such as a consultant, who understands it better than they? They're prepared to pay those consultants to advise them. Why can't they do that?
Mr Hynd: I can't think of any employee who can afford to pay a consultant to appear before a tribunal.
Mr Tilson: I'm just asking a simple question. You're ruling that out. I'm just trying to understand the rationale of your proposed amendment.
Mr Hynd: The rationale behind it is that consultants will delay the process and delay justice. That's our discovery with lawyers and consultants.
Mr Tilson: Interesting statement, sir.
Mr Hynd: Do you disagree?
Mr Tilson: No, I simply say that I'm admitting that I have a difficulty understanding this legislation, understanding the tables that were presented to us. If I were going towards the tribunal, I would need someone to assist me. I would not be capable. Because this legislation is so complicated, I would need some professional assistance. If I happen to be a member of a union and I have a union or a bargaining agent to assist me, that's wonderful, but what if I don't have a union or a bargaining agent to assist me? I don't have anyone. I'm going to be slaughtered, and there's a whole pile of women out there who are going to be slaughtered.
Mr Hynd: By whom would you be slaughtered -- by the employer?
Mr Tilson: No, because they wouldn't understand their rights. There'd be no one there to explain it to them.
Mr Hynd: I'm having difficulty understanding why this woman or group of women who wish to take before the tribunal their case of an inequity in their workplace -- who would they be slaughtered by? Surely the employer, like you, would have the same difficulty with the legislation as you say.
Mr Tilson: Fortunately the United Steelworkers of America, for example, can go and represent the 15% of their women if they're going before the tribunal. They're fortunate. They've got you to do that, but by the proposed amendment -- I'm just trying to find out your rationale, because I understand --
Mr Hynd: I'm having a difficult time understanding why there's a problem.
Mr Tilson: Well, we'll move on, because I simply don't understand your restricting people other than bargaining units when there are no bargaining units to represent them.
Mr Hynd: But you're giving me the impression that some employer is going to really do a job on some small group of women who are going to appear before the tribunal. That's why we're trying to carve out consultants, to try and make sure that doesn't happen.
Mr Tilson: I'm simply saying that if an occasion arises and they're before a tribunal, fortunately the women you represent, your union will represent them, and I'm sure you'll represent them very fine. Your union has a good reputation.
The difficulty I have with your proposed amendment is that there will be a large number of women in this province who are unrepresented. But I don't want to spend any more time, because we appear to be going nowhere on that question.
Sir, you have indicated that you represent a number of women who work in hotels. The hotel industry tells the provincial members of this Legislature that they're in dire straits in this province, for whatever reason. Generally it's taking shots at the tax structure that's being put forward by this government and the labour policies that are being put forward in this government, but for whatever reason --
Mr Hynd: Most of the reasons for the hotel industry having a difficult time?
Mr Tilson: Well --
Mr Hynd: No, no, but you have to understand, because you're asking me about it.
Mr Tilson: All right.
Mr Hynd: Most of the reason is that there are very few tourists coming into Canada.
Mr Tilson: All right. We'll get into that.
Mr Hynd: It's one of the big major problems.
Mr Tilson: I guess what I'm saying is that places like the Sutton Place Hotel are having a lot of trouble. All these hotel industries will be obliged to spend, at this particular time, because of this legislation, increased amounts of money. Are you afraid that those women might lose their jobs by a government becoming too hard-nosed and tightening up the timetable?
Mr Hynd: No, I'm not. I mean, I can tell you that, more than often, people who would make a statement similar to the one you just made make the same about unions, that if a place gets organized and the union places so many demands upon an employer they'll go out of business. But that just doesn't make any sense to me and I can't think of any occasion where that has made sense to us so that we've done it.
Let me just say to you that you should know, and it's probably important for you to know this, that the Sutton Place Hotel is in serious trouble, that the reason that the Sutton Place Hotel is in trouble has very little to do with the collective agreement between the United Steelworkers and Sutton Place, it has very little to do with the low occupancy rate --
Mr Tilson: Sir, I didn't mean for you to take offence.
Mr Hynd: I'm not taking offence.
Mr Tilson: I'm just raising that as an example.
Mr Hynd: I'm trying to give you some information. The main reason that Sutton Place is in trouble is the company, Lehndorff corporation, which financed Sutton Place is in financial trouble. If you read the articles in both the Star and the Globe, it explains why Lehndorff corporation got into trouble. It's got little to do with our bargaining relationship or pay equity.
The Chair: Mr Arnott, you have about three minutes.
Mr Arnott: Mr Hynd, thank you very much for coming in today. I appreciate your presentation.
This article that appeared in the newspaper has been discussed in the past, the headline in the Toronto Star, January 15, "Women's Pay Creeps Towards 70% of Men's." I suppose if you're an advocate of the government's brand of pay equity initiatives, if you're an advocate of that, your ultimate objective is to ultimately equate the average wages of women and men.
Mr Hynd: No.
Mr Arnott: No? That's not the objective, so that they're equal?
Mr Hynd: No.
Mr Arnott: Okay, I don't understand. What level then would be acceptable?
Mr Hynd: The difference between what we're trying to accomplish in pay equity is much different than saying that women should be paid the same as men. That's not what we're saying at all. We're saying that if women perform the same job as a man, they should be paid the same. If women perform a job of equal value, they should be paid the same. That's all we're saying. That's not what that article is saying.
Mr Arnott: No, but it says that there are a number of people who, I assume, would be very supportive of pay equity initiatives who were quite dismayed that women's pay is moving at a snail's pace.
I quote: "Maureen Leyland of the National Action Committee on the Status of Women said that at this `snail's pace,' equal pay for work of equal value would take for ever and that is not good for the economy." So what that person is saying is that women's pay, 70% of men's, is not satisfactory and I assume that she would support additional initiatives to bring it closer into balance and, I would assume, ultimately to have it equal, entirely equal.
Mr Hynd: Only if, in addition to pay equity, employment equity reaches its peak where in fact you have the same number of executives, female and male, the number of surgeons, the number of doctors, the number of professors, the number of MPPs and MPs. Only then would that be true.
Mr Arnott: All right. You said earlier, in response to a question, that you feel this is the beginning of the end of, I think, systemic discrimination in the workplace.
Mr Hynd: The beginning.
Mr Arnott: What sort of a figure do you think would be more appropriate if 70% is not acceptable?
Mr Hynd: It would be very difficult to measure the effect that pay equity would have on the amount of money all the women in the workplace earn and all the money that the men earn.
Mr Arnott: At some point, I assume, we have reached full pay equity, according to your definition. How then do we measure that we've reached that point? Perhaps we can close up the pay equity office if we've reached total pay equity.
Mr Hynd: The only measurement one can make is to take an evaluation, a ruler, a judgement, a measurement that is not sexually biased and measure all the jobs there are in Ontario, and if you discover that none of them are out of line, then we will have achieved pay equity. This is only the beginning, because legislation is one thing and its implementation is another, and how people react is another.
Ms Murdock: A couple of things, just on the basis of the questions from Mr Tilson. Under legal clinic, $500,000 was allocated, Mr Tilson, for pay equity, legal advisers.
Mr Tilson: You need more than that.
Ms Murdock: When there is a representation at the Pay Equity Commission, there's a difference between a consultant and counsel, so that the non-organized worker can get legal representation as required.
Mr Tilson: You're saying a bargaining unit can go, as well?
Ms Murdock: If they have a bargaining agent, they can go to their bargaining agent for representation.
Mr Tilson: Why not go to a consultant?
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Ms Murdock: The other point I wanted to correct on the record, and I'm pleased to see that Mr Hynd did too, is that dissatisfied workers are the ones who organize unions. It's not governments that organize unions. It's not unions that organize unions. It's dissatisfied workers, unhappy with their workplace. I just want to make that point. I said it a thousand times doing OLRA, but I'll say it again on pay equity.
The thing you raised -- and I think pointed out a number of times, although it wasn't said this way -- is the whole issue of internal inequity as compared to pay equity. I think that's where it was leading towards the end of the conversation you were having with the Conservatives. We can sit and put bills like 102 and 169 in place and, as you say, the beginning of trying to get some equity in terms of the compensation package for women, but in the end society has to change the internal inequities that exist in the workplace. That hasn't happened yet, and it's going to be a while before the attitudes of most of the male-dominated executives do that.
But I wanted to get to the particulars of Bill 102 in relation to some of the things you said on section 21.2, on giving an opportunity to employers to go back in and change a plan that has been worked out, or that they not be required to do job-to-job before they go into proportional. I know you discussed it in your presentation. It was a while back; I don't know if everybody remembers what you said. The section as it reads says:
"If a female job class within an employer's establishment cannot be compared to a male job class in the establishment using the job-to-job method of comparison, the employer shall use the proportional value method of comparison to make a comparison for that female job class."
I read that to mean that you have to do job-to-job before you do proportional. You're not the only one who has made the point that they are reading that very differently. Yesterday we had a number of groups that said the same thing, and I'm wondering how exactly you would change the wording in that section 21.2.
Mr Hynd: I thought we made a suggestion in our brief.
Ms Murdock: I realize that, but the specific language. Do you have a copy of the bill? I put the word "then" in, and I wondered if that would change your position.
Mr Tilson: Where were you putting that word?
Ms Murdock: After the comma. Following "comparison," you say, "then the employer shall use the proportional value method." I'm asking you what you would think of that.
Mr Hynd: That may fix it up. However, I think the suggestion we've made is clear and we'd like you to consider it. I mean, in the end result I don't have the privilege of being where you are at, in that high-paid job that was just described by somebody.
Ms Murdock: High-paying job? I bet you make more than I do.
Mr Mahoney: A whole lot more.
Mr Hynd: Do you want to bet?
Mr Tilson: I'll hold the money.
Ms Murdock: You see, I don't disagree. Our intent with that section and what you're saying, I think we don't disagree. The intent was that, yes, you have to use job-to-job first, and if you have jobs that don't fit into the job-to-job then you go to proportional, and if you don't have any jobs that fit into proportional then you go to proxy -- if you're in the public sector, because proxy only applies to the public sector.
Mr Hynd: As I say, it may fix it. We'd like you to look at the one we've suggested so that it is fixed. If it gets fixed by that, then fine.
Ms Murdock: The other thing is really philosophical: the question of maintenance. It's just a thought I had, and I wondered whether you had looked at that aspect. A number of the groups that have come before us yesterday and today have specified that when you use a proxy comparator, the seeking group or the seeking employer should be notified of any changes or subsequent increases in the salary of the comparative group so that therefore the salary of the seeking group would be increased. My question basically is whether you might have any concerns or whether you had given any thought to or discussed that aspect of tying in to a province-wide salary for specific groups. I asked Julie the same question.
Mr Hynd: I haven't given any consideration to it. Quite frankly, it's much more complex than my little mind can take in all at once. I think that once you've made the proxy comparison and you've established a criterion within the workplace you're measuring, then adjustments would occur in that workplace. I don't think you can look at something outside a workplace and adjust a job or jobs within that workplace based on a comparator that you make by proxy. I don't know where that theory comes from.
Ms Murdock: There is a differential in the value of the work you've been doing in one place. You go through the proxy system and end up finding out the differential and you make up the difference on the 1% per year and so on. You get that. The fear of both the pay equity coalition and a number of the other groups that came forward is, "Okay, we get that this year, 1993, and five years down the road we're back in the same boat again, where there's another differential, because nothing has been maintained in the intervening years." There is a real concern about that salary being maintained. Of course that's public sector, because the private sector doesn't have to use it. If you've used a proxy comparator, there should be some method of notification by the proxy group to notify the seeking group so that the salary can be increased every year thereafter. I was wondering if there had been any thought given to what that would do to the salaries.
Mr Hynd: I haven't thought about it. I would be misleading you if I said I'd thought about that, but it may be something you want to look at in the maintenance of pay equity. It does little if the legislation only brings about equity and then, as time goes on, it erodes the equity that we created. We agree that there has to be a maintenance of the system. How you achieve that maintenance, I'm not sure.
Ms Murdock: There is a review mechanism and so on that obviously has to be done, I would say. But then we get back to the internal inequities within the workplace and attitudinal changes, that's true.
I just wanted to thank you. I don't have any other questions.
Mr Winninger: Actually, Mr Chair, when I asked for time, it was to make the same point Ms Murdock made about the fund for pay equity appeals. But since I do have the floor, I'd like to come back to a comment Mr Arnott made when he referred to the article indicating that women have reach 70% of male wages. There's a suggestion that that figure is open to challenge, that it's illusory, because of the artefact of the recession and the high dollar, free trade and so on, in that a lot of jobs that males have enjoyed in primary manufacturing have been lost and that would drag down the average wage for males. Once we're through the recession, we may find that there's a certain variance that is attributable to the recession itself rather than progress that women have made, that that 70% may be a little high.
Mr Hynd: It may very well be. As I understand, the increase they're talking about since the last measurement was made is something like 1.2%. That's something that could probably fluctuate for a variety of reasons, including some that you've explained.
Mr Winninger: I understand that in the early 1980s, when we had another recession, there was a little blip upwards in the ratio of women's wages to men's, but it dropped back a bit after the recession.
The Chair: Thank you, Mr Winninger. Mr Hynd, Ms Milling, on behalf of this committee, I'd like to thank you for taking the time out and giving us your presentation today.
Mr Hynd: I would like to discuss my salary with the people who think I'm one of these high-paid union people. I'd also like to compare the amount of tax I pay and the tax they pay.
Mr Mahoney: Don't be defensive about it. God knows, you're elected the same as we are.
The Chair: Now that all the members have gotten rid of some of the extra energy they had this afternoon, we'll continue.
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INTERCEDE
The Chair: I'd like to call forward our next presenter, from Intercede. Good afternoon. Just a reminder that you'll be allowed up to a half-hour for your presentation, and the committee would appreciate it if you would keep your remarks a little briefer to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, could you please identify yourself for the record and then proceed.
Ms Fely Villasin: I'm Fely Villasin and I'm the coordinator of Intercede. I'm sure I'm not going to take too much of your time. I have very little expertise on this subject, because for quite a while we never really thought of pay equity as applying to the constituency of workers we are working with, not because we don't think it does, but in the immediate sense that we felt very distant in terms of the coverage and protection and its relevance to our constituency of workers.
However, during our last meeting of Intercede, we had a guest who spoke about pay equity and told us about what is happening now and proceeded to convince us that we should at least come and say something about one section of what is being considered by this committee, which is the inclusion of women in workplaces with less than 10 employees. I'm warning you that I would like to defer to the other advocates who've come here, specifically the Equal Pay Coalition. What I would like to do is just present to you some concerns and some questions we have thought about and that affect us.
Intercede is an organization based in Toronto and focuses on the needs of domestic workers who do a combination of live-in or live-out care giving and housekeeping, and who are mostly foreign women of colour of temporary immigration status in Canada.
As an organization dedicated to improving the life and work situation of women employed to do work in the home, Intercede has a history of advocacy work in the areas of immigration, labour, human rights and others, seeking to change policies or laws or to improve them to ensure the formal extension of rights and protection to domestic workers. In the course of its more than 10-year existence, Intercede has largely contributed to obtaining government recognition, at the federal and provincial levels, for domestic workers' right to equal treatment under laws that previously had expressly excluded them.
So today domestic workers are protected under most of the Employment Standards Act, under workers' compensation and human rights legislation. Just recently, the exclusion of domestic workers under the Ontario Labour Relations Act was lifted with the passing of Bill 40, and therefore domestic workers have recently earned the formal, legal right to form a union. I'm saying "formal" in quotations because, while this right has been formally granted them, we have yet to arrive at mechanisms to effectively exercise this right.
One of the justifications for the traditional exclusion of domestic workers from laws that protected the rights of other workers has been the rejection of the idea that the home could be considered a workplace, and consequently that the work done in a home could ever be done except out of love and selflessness. Thus, women struggle for equality outside the home, while it is still arduous and frustratingly slow, has gained speedier acceptance relative to women's struggle for equality inside the home as a workplace.
The perception of women's work, unrecognized, unvalued, taken for free, has always been at the root of society's and government's agonizingly slow progress in equalizing the worth of male and female labour. That's what I believe. I don't need to elaborate on this historical and traditional fact. It's important, though, to highlight it in the situation of women engaged in domestic labour.
Foreign domestic workers enter Canada under an immigration program that seeks to partially meet ever-increasing demands for domestic labour, which involves mainly child care and housekeeping. As more women have been entering the paid workforce outside the home, the gap in child care has not kept up. Therefore, those who can afford it have resorted to employing other women to replace their responsibility inside the home. The demand for domestic care giver workers has consistently increased throughout the years and has consistently not been adequately met by the supply, especially the demand for live-in domestic workers.
Meanwhile, I'm sure this committee has been made aware of the fact that an increasing number of women have been going back to the home to do all sorts of home work related to various types of industries such as garment and telecommunications.
The future of women's work seems to me to be characterized by the following: individual home work or ever-smaller workplaces and temporary or part-time, low-paying, more isolated conditions of work. That's what the future looks like to me. There are enough studies and statistics, I think, that show this trend for many women workers but especially for women workers at the lower rank of the workforce.
The amendments under consideration in this committee are aimed to eliminate discrimination against women. My purpose in appearing before you is to reinforce the appeals made already on behalf of the increasing number of women who work in the home in isolation and therefore in the most vulnerable of conditions, starting of course with my own constituency of domestic workers.
The elimination of wage discrimination against all women, especially women in small workplaces and not just women who are in workplaces with more than 10 employees, is an important suggestion to this committee that has been made by many, including the members of the Equal Pay Coalition. The fact that pay equity as it is now written will never apply to domestic workers means that women's work in the home, the caring and nurturing, indeed the replenishment and reproduction of our workforce, will never be valued. This contributes to sustaining the barrier domestic workers face in being justly compensated for the different kinds of work they do.
As a small agency with very few resources, I'm sorry that we're not able to present even a written brief and further specific arguments on other aspects of what you're considering, but I thought it was important for me to at least focus on what I could this afternoon, to give you a slice of life that is affected by this part of the current pay equity legislation. Thank you.
The Chair: Thank you. Questions, Mr Tilson.
Mr Tilson: Thank you for your presentation. I don't have any questions, Mr Chairman.
Mr Arnott: I'll just say thanks very much for your interest in coming forward to speak to us today.
Mr Malkowski: Thank you very much. Your presentation was quite something. I wish we had a copy of your brief. The information is very valuable. There are important points to consider for all of us, to remember domestic workers, those people who are there caring in our homes and caring for our children. They are a resource in our community, and I'm concerned.
You believe our legislation doesn't go anywhere to help people in places where they have 10 employees or less. That's part of your concern. Correct?
Ms Villasin: Yes.
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Mr Malkowski: So what would you suggest specifically? What would you like us to do? Would you like us to extend that to those workplaces, including the home? What would you like to see?
Ms Villasin: I would like to make sure that it does extend to women workers in the home. Usually the women workers in the home are in ones, not even in twos or threes, but in ones. I'm also concerned not only that the pay equity legislation applies to domestic workers, as I do speak now for them, but that also there is an anticipation of the trend of women going into home work and in fact working in the home in isolated conditions, as domestic workers do now.
Mr Malkowski: May I ask a supplementary question then? Would you say 90% of the domestic workers are women? Well, almost totally, very few men. When you compare with wages being made between some of the comparable jobs, would you say women are grossly underpaid in those positions?
Ms Villasin: I would say that right now, 97% safely, even up to 98%, are women who are doing work in the home. There are men who also do work in the home, such as male companions to the elderly or the disabled, and we have those as members of our organization as well. I am not prepared to talk about what to compare them with.
I have a notion that in terms of skill, responsibility and the two other factors that I considered in terms of comparing -- the point is, most domestic workers, especially those who have care giving work, take the place of mothers or take the place of daughters. They take the place of mothers vis-à-vis children to care for on an all-sided way and they take the place of daughters or sisters, but mainly women, who take responsibility for either the disabled or for the elderly in the home.
In terms of comparison of responsibility, skill and condition of work, I would love to have the opportunity and the resources to be able to make the kind of comparisons to other male jobs.
Mr Malkowski: Thank you very much. Your information's very helpful.
Ms Murdock: You're right. Bill 102 isn't going to help under-10 and certainly in the domestic worker and the home worker situation it isn't going to be of any assistance, other than perhaps to set some kind of standard later on. After the whole Bill 40 issue, when we talked about the domestic worker and the home workers being very -- people didn't realize there was a distinct difference between the two, first of all, and second, at the end of the Bill 40 hearings, the task force was established for the very issue of finding a way to get some kind of recognition or representation in terms of being able to improve their working conditions.
Because Bill 102 doesn't apply particularly but because you're actively involved in the task force, as I know, would you see that as helping in terms of the pay equity situation for homemakers?
Ms Villasin: In terms of the broad-based mechanisms we want to be able to set up, we see it as being the mechanisms in fact that take the place of, let's say, a negotiating entity. But if there is an exclusion, then the exclusion may actually be a barrier for the exercising of pay equity rights for the women involved in home work and domestic work.
The kind of mechanisms that we're studying now, we're actually moving towards terminating research around a broad-based bargaining mechanism for home workers and domestic workers. I think at the end of this research, which we hope to have by February, we will be able to make a decision as an organization as to what would be the best mechanism and what kind of legislation further is necessary in order for the right of domestic workers to bargain and to negotiate.
I suppose pay equity could very well enter into that but I'm not sure now how, and if there is no anticipation of including women who work in the home then, in terms of simple logic, for me, that makes it an added barrier. So I'm afraid I cannot give you a concrete answer to that, because even for the union and negotiating and enforcing rights we have not come to a point where we can say this is the mechanism that will work, okay?
Ms Murdock: If I'm a home worker, and pay equity by definition is equal pay for work of equal value, and so I'm doing home work, be it on computer or in the garment industry, whatever -- we'll live in an ideal world here and say the task force has already found a mechanism where you have a broader-based bargaining system and so on. We had stories during the labour relations hearings where some of the home workers and domestic workers -- well, home workers, in particular the garment industry -- were in effect making $1 an hour, in some instances $3 in another example that was used, which is reprehensible when you think that the minimum wage alone covers a lot more than that.
If in the ideal world the task force has found a way whereby decent wages were being paid to the home worker and relevant to the work they were doing, would that not then equate to pay equity if you look at the definition of equal pay for work of equal value?
Ms Villasin: If I understand your question correctly, if pay equity did, right?
Ms Murdock: If the task force has already got a broader-based bargaining --
Ms Villasin: I don't think so, because you see --
Ms Murdock: No, I know it doesn't, but I'm saying in an ideal world. We'll move down the road a little and say, "Yes, we've found a way that it's going to work for home workers and we've gotten a decent wage. They're certainly making at least minimum, if not more." Would that not in effect be, for your people at Intercede, pay equity?
Ms Villasin: I still don't think so. I think all a broad-based mechanism will be able to do is to assure the minimum decent standards. I think that's all it will do. For example, I can see it at least assuring paid sick leave of several days. That's about it.
But in terms of valuing domestic worth, which is for me a crux of women's fight for equality, which is -- you know, I don't know how to explain that, but for me that's really the crux of it. The whole fight for pay equity and the whole fight for women's equality has something to do with the traditional inequality that is rooted in women's free labour and in the undervaluing of women's work, especially women's work in the home.
Ms Murdock: Well, I mean --
The Chair: Thank you, Ms Murdock.
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Mr Curling: I'm just going to be short. I want to commend you for your presentation and I think, as you said in the beginning, it was important that you present your position here because I know that Intercede, from where it started to where it is today, has really moved far and has accomplished tremendous strides. While I hear my colleagues on the government side trying to find what pay equity would be in evaluating your job, as you rightly say, what just could be established now is that minimum wages and those other things that are looked after would be looked after now. Beyond that, it wouldn't address that. But I also feel that the pay equity approach here would not be the way -- this bill would not address it. But it's important that you made this presentation so it could be heard.
The Chair: Thank you, Mr Curling. Ms Villasin, on behalf of this committee I'd like to thank you for taking the time out this afternoon and giving us your presentation. Thank you very much.
BRANT STREET DAYCARE
The Chair: I'd like to call forward our next presenters, from the Brant Street Daycare. Good afternoon. Just a reminder: You'll be allowed up to a half-hour for your presentation. The committee would appreciate it if you'd keep your remarks slightly shorter than that to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, could you each identify yourself for the record and then proceed.
Ms Beverley Sobers: My name is Beverley Sobers and I'm the program coordinator for Brant Street Daycare. I've been there for five years.
Ms Trudy Binder: I'm Trudy Binder and I'm an unqualified teacher working with Beverley and Nalini.
Ms Nalini Patel: I'm Nalini Patel. I have worked with Brant Street Daycare for five years now.
Ms Binder: Members of the standing committee, I thank you, as do the rest of the staff at Brant Street Daycare, for this opportunity to voice opinions regarding Bill 102.
One of the reasons that I'm speaking is due to a comment once made to me by a former acquaintance. He asked me, "So, what are you doing now?" my reply being, "I'm working at a day care," to which he replied, "Oh, that's too bad." Why this response? I haven't thrown my life away working in day care. A great part of the public still has difficulty in perceiving the field of day care and the day care worker as professional and valuable.
Bill 102 is an important step towards encouraging society and governmental systems to recognize the day care worker as a professional. An early childhood education diploma requires two years of college, made up of 21 subjects, and four field placements of eight weeks each, without pay, and long working hours with children ranging in age from newborn infants to 10 years. All these ages must be covered. Child care staff are required to have first aid training, which is to be updated yearly at their own expense. Courses, seminars and constant upgrading of skills are needed to provide quality programs. These are professional attitudes, expectations and responsibilities.
An early childhood educator teaches through play and games. Through positive reinforcement we encourage a child's cognitive development, physical development, behavioural and social development. We are trained to work together with parents and schools towards mutual solutions in dealing with each child.
Lastly, we see the child who is abused. We can make a difference in that child's future by helping him to trust someone again and by helping him to heal his damaged self-esteem. We are trained for these things and these things have a value that can be measured. It is sad, then, when one reads reports such as a national study, Caring for a Living, funded by Health and Welfare Canada, which reports that over 7,200 child care staff working in 969 different child care centres report wages hovering close to or falling below Statistics Canada's poverty line.
Pay equity is greatly needed in the day care profession. Child care workers were for the most part excluded from achieving pay equity as there were no male comparators. Under the existing legislation, the procedure for pay equity achievement covered only the women where female jobs could be compared with male jobs of equal value in the same workplace. Under Bill 102, the introduction of the proxy comparison method will permit women in an all-female organization to match job classes with an outside organization.
This is good news for a great many people in the day care field. We strongly urge the government to maintain the municipal child care worker as the proxy comparator, as they earn 29% more on average than the rest of the non-profit sector. If the municipality does not offer child care, then the child care programs making use of the proxy method should be able to move to the next municipality that does.
Bill 102 will benefit child care workers in the broader community. It will provide better access to those seeking improvements to their pay equity as circumstances in their workplace change. It retains many of the positive features of the original Bill 168. It extends pay equity benefits to approximately 420,000 women previously excluded under the existing legislation, through the introduction of two additional methods of achieving pay equity: proportional value comparisons and proxy comparisons.
Day care workers have an important influence on the formative years of a child. Pay equity must come through for child care workers, or everyone will lose. Today it is more and more common and necessary for both parents to work, meaning there will be a greater demand for higher-quality child care and qualified, dedicated child care professionals. This is a problem for those who may want to work in the day care field but do not choose this career option because of the low wages and the poor public opinion of the child care.
If we cannot attract some of the best people to become early childhood educators, we are doing a disservice to our children. Therefore, we strongly urge the government to maintain the 1993 implementation of Bill 102. We also want to recommend the placing of a cap on proxy payouts. We suggest a January 1, 1998, deadline.
Respectfully submitted by the staff of Brant Street Daycare.
The Chair: Thank you very much. Questions and comments?
Ms Murdock: Thank you very much. Yesterday we had about four different presenters, from the Equal Pay Coalition and then the day care coalition and a couple of other individual day cares came in. One of the things that they recommended was in terms of the language being used. I'm just wondering -- you haven't mentioned it. Actually, I think you've taken a much more personal view of what your job and so on is, so I appreciate that you didn't get into the details. But I was just wondering in terms of your own feel about the use of the word "proxy" instead of "cross-establishment."
Ms Binder: Pardon? Instead of what?
Ms Murdock: They were suggesting words like using -- instead of "seeking" organization, to say "an establishment requiring cross-establishment comparisons." Instead of calling it a proxy organization, you would call it a cross-establishment, and that kind of thing. I wondered whether you thought that would clarify things, or whether you would find it even more confusing.
Ms Binder: Do you mean --
Ms Murdock: No, no, I'm sorry. Okay. It's just a language thing. I just wondered whether or not -- you personally don't find the use of the word "proxy" --
Ms Binder: I don't use it every day, that word.
Ms Murdock: No, but when you hear of proxy comparisons, within the context of Bill 102 or this bill --
Ms Binder: What do we think of?
Ms Murdock: Yes. What does it mean to you?
Ms Binder: My understanding is that, say, if there are three day cares and one is receiving the higher income and another one is looking at the difference between two day cares and wanting to decide on how to estimate equal pay for equal value, they will estimate not between the lowest one but an average of the two higher ones. Correct me if I'm wrong.
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Ms Murdock: Yes, that's fine. But do you understand it to mean that it's a third method of comparison in terms of jobs in trying to find a way of paying you for doing work of equal value?
Ms Binder: Yes, and that might not necessarily be even day care work.
Ms Murdock: No.
Ms Binder: Okay.
Ms Murdock: That's right. It would apply to all kinds of jobs.
Ms Binder: Another profession where there's a similar amount of stress and education involved.
Ms Murdock: Right. Okay. I just wondered whether or not you felt that there was any great need for that.
Ms Binder: Actually, the definition of the two is a little difficult to understand, but that's about as well as I understand it, what I just explained to you, and that it can also apply to other professions to make a comparison where there is nothing to compare, say in the day care field.
Ms Murdock: You also said that you were unqualified, I think. Now what is that?
Ms Binder: Yes. That's misleading.
Ms Murdock: Pardon me?
Ms Binder: That means that I don't have an ECE training.
Ms Murdock: Okay, but obviously you've taken courses, because you said that too.
Ms Binder: Yes. Also, I am by profession an illustrator and I'm also a musician, so I have a lot of resources. I was only hired because I have a lot of varied abilities to work with people who have been trained, so I'm assisting them. But I'm also a day care worker and I'm working full-time. But I don't have a degree.
Ms Murdock: That affects your salary, I would presume.
Ms Binder: Yes. I shouldn't earn as much as they do because I don't have a degree, but I'm still working with the children, and I have to take first aid.
Ms Murdock: Yes. Have you done comparisons in terms of salaries with other organizations in terms of what you get, any one of the three of you, as compared to other organizations?
Ms Sobers: We haven't really done comparisons, but our day care is probably on the average. On any curve line we're probably right in the middle. We don't earn a lot, but we don't earn too little. So a non-ECE will earn basically what the average non-ECE would make. I can't really give you figures, but we're on the curve line and we would be in the middle. We don't earn 29% more -- you know, Metro --
Ms Murdock: Don't you wish, eh?
Ms Sobers: Yes.
Ms Akande: I recognize that you're an unqualified child care worker, but you do, as you have spoken, bring many other skills to the situation, skills which have been valued in such a way that they feel it's important to have you employed there full-time. I don't know whether you know or not, but there are teachers who do not have degrees who have in fact been or through pay equity will be evaluated in such a way as to bring up their income, increase their income.
With the extra skills that you bring, I would imagine that comparing you appropriately to other groups outside that have those musical skills and use them with children, as well as some of the other things that you mentioned, might bring up your income so that it is equal to those who are qualified. What would perhaps the rest of you say about that having been a consideration? Has that been considered at all or discussed at all?
Ms Sobers: That hasn't really been considered, but if I was to answer the question, I believe anybody who does not have a degree but has other qualities that they could bring forward into the program, sure, their salary should go up as much as it can, but I do not want to demote education, what you should actually lean towards in order to work in an early childhood education program. Something fair is also something that I would feel is positive, and she will probably deserve it. She works just as well as we do, the same hours, but education is more important, so I do believe that if you go to school you should get a little bit more pay.
Ms Akande: Would you evaluate, or would you consider perhaps would be more appropriate, that evaluating the education she has acquired around her musical skills -- I remember you mentioned some other things --
Ms Binder: I use my illustration far more than my music.
Ms Akande: -- or in illustration, in some ways, since it is considered useful to use, therefore should be considered useful in the evaluation for pay?
Ms Sobers: You would like --
Ms Akande: I would like to evaluate the skills or the education received in achieving those skills in music and as an illustrator to be possibly considered in assigning a level of pay, as well as the work that she's doing. Would you consider that appropriate? That is really the basis of pay equity.
Ms Sobers: I consider it appropriate.
Mrs Caplan: Supplementary to the question that Ms Akande just asked, I don't want to leave you with an incorrect perception, and perhaps it might be helpful to Ms Akande. The legislation that's before you and in fact the legislation that's in place in Ontario assesses the job, not the individual doing the job. So as to your additional skills or your lack of attainment of degrees or that sort of thing, it would be up to the employer to determine which job you were able and qualified to do and then your performance would be assessed and appraised on the basis of performance.
The rate that is established under pay equity and the comparisons are for the job class, and it's a very technical kind of thing, but it wouldn't be impacted in any way by the specific talents an individual would bring to that job. In fact, it has nothing to do with the assessment of the individual but the value of that job to the employer. It has to do with the value of jobs and job classifications, which is a very different kind of thing.
I didn't want to leave you with the impression that your educational requirement as an individual person or your personal enhancements and skills and musical abilities and anything else would affect a job valuation plan for the purposes of a pay equity plan. It's a hard concept to understand. It's the concept of the value of the job, not the person doing the job. I just wanted to clarify that.
Ms Akande: If I may, because this is an interesting point, it is one of the considerations that was assigned when we looked at it and discussed it when I was on the negotiating team and discussing this through the federation of women teachers, the kind of pay equity we would apply to teachers who, although qualified as teachers, did not have what would be the additional qualification now demanded, a degree. We looked at the value they continued to bring to the job and how that value was to the job.
Mrs Caplan: That would be for a job class which was classified as a teaching assistant or whatever who did not have a degree, so it wouldn't relate to the individual applying for that job. The requirement, the qualification for that job class would mean you don't have to have a degree, and it was an assessment of the value to the employer. Is that correct?
Ms Akande: I would imagine too that there would be many child care workers who work as such without the actual qualifications.
Mrs Caplan: That would be a different job category within your plan. I just want to make sure that was clear because the whole concept of pay equity has very little to do with the personal individual doing the job. It's sometimes confusing to people and they say, "I'm worth more because I have an extra degree." But if that job has been evaluated -- as we know, women's work has been undervalued by society for so long that we sometimes forget that aspect of the pay equity plan. I didn't want to get into that but I felt it should be clarified.
The Chair: Thank you for that clarification.
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Ms Poole: Thank you very much for coming before our committee. Your presentation has been valuable to us because, first of all, you're the front-line workers, and secondly, child care workers have made an enormous contribution to society that hasn't always been recognized. It gives us an opportunity to say thank you for what you're doing for our children.
I'd like to ask you about a certain part of Bill 102. Under the current legislation which was passed back in 1987, it gave benefits to a certain group of women. You were excluded from that group because you were in sole female occupations. When it gave benefits to women in the broader public service who were able to do a job-to-job comparison, it said there was a deadline of January 1, 1995, by which time those women were to have achieved pay equity.
This doesn't directly affect you because you were excluded from that act, but I wanted to ask you this question: The government has delayed that deadline by three years, so now it will be January 1, 1998, for the women in the broader public service who were to have achieved pay equity. Do you think it is right that the government would make that extra delay? I ask you because you're somewhat more objective.
Mrs Caplan: They've been waiting a long time.
Ms Sobers: That's right.
Ms Poole: You've been waiting a long time and these other women have been waiting a long time, but they're told now that they have to wait even longer. You're more objective because you aren't affected directly by that three-year delay. You're affected by the other portion of Bill 102. Would you like to see that deadline going back to the original legislation passed by the Liberal government, which said January 1, 1995, or do you buy the government's argument that these women should wait because the economy is bad?
Ms Sobers: I think we've waited long enough. How much longer do we have to wait? We always seem to wait until the government says it's okay to change. How about us? We're the ones telling you it needs to be changed now. If they keep on putting it ahead, that's another step backwards. The longer they put it forward, we go backwards. Another couple of years we'll be fighting, and then five years from now, myself, Nalini and Trudy will be back here saying, "When is it our turn?" It has to stop. We need our turn and our turn is now.
Ms Poole: Thank you. You've been very helpful. I think what you've said is that the economy may go up or down, but women have waited so long that you just don't want them to wait any longer.
Ms Sobers: That's right.
Ms Poole: Thank you very much for your presentation today and your comments.
Mr Arnott: Thank you very much for coming in this afternoon to explain your particular point of view on the pay equity issue. I assume that Brant Street Daycare is a non-profit day care centre. That's correct?
Interjection.
Mr Arnott: Okay.
You stated on page 2 of your brief that you would urge the government to maintain the child care worker as the proxy comparator with the rest of the non-profit day care workers. You say they make about 29% more on average than the rest of the non-profit. We had a presentation yesterday from a group of day care workers who indicated there was a significant problem in terms of staff turnover at non-profit day care centres. The wages/salaries were too low to keep certain people who would elect to go on to another, presumably higher paying job somewhere else. Is that your experience as well? Do you have that problem at your day care centre?
Ms Sobers: I think it also depends on the quality of the child care. Where we are, we have all been at this day care for five years. So that in itself is great. But yes, there are a lot of day cares where there is a lot of turnover, but that is because basically, as you said, you're not making enough money. So they do want to move ahead to another day care where they can get a larger salary. That in itself makes the other day care they left look bad. That shows you again the inequality of the whole situation. If the salary is good, the staff will stay. If it's not good, you leave, like any other job.
Mr Arnott: How many staff are there at your day care?
Ms Sobers: Eight.
Mr Arnott: Looking after how many children?
Ms Sobers: An average of 60.
Mr Arnott: If it's a problem in some day cares, would you assume that many of the people who leave a day care for a municipal day care and go seeking that 30% increase -- I'm just a bit surprised that you've had, I suppose, such a good staff continuum, that you've maintained the numbers you've had. Are there many opportunities for people to go into the municipal jobs? Are those very highly competitive in terms of those opportunities?
Ms Sobers: Because of the situation that everybody's leaving, it will become harder to get into those places. That's another reason you've just mentioned, why again you have to stop this now and deal with the pay equity situation, because if everybody's leaving and they're all going to those municipalities, there will be no room. If I want to leave my job I can't go and work in a municipality, because it's full. You'll have a large line, a waiting list, and we already have enough waiting lists in day care, whether it's subsidy waiting lists or waiting to get into the day care. There are enough lists.
Ms Murdock: Tell me about it.
Ms Sobers: That's right; universal day care.
Mrs Caplan: I have a question I'd like to place to the parliamentary assistant, if I could, Mr Chair. Is that acceptable?
The Chair: A brief one.
Mrs Caplan: Brief. Could you tell me, just for clarification -- this group before us today represents a day care. They work for an employer that has under 10 employees; there are eight of them. Will they fall under the scope of this legislation?
Ms Murdock: Under 10, even in the public sector? No.
Mrs Caplan: So I think we should tell them, "You are excluded from this legislation."
Ms Murdock: Oh, I'm wrong.
Ms Binder: We were told that wasn't a problem.
Mrs Caplan: That's why I'm asking the parliamentary assistant to tell us, is this employer included under the legislation or not? That's why I'd like clarification.
Ms Murdock: Actually, my understanding was --
Mrs Caplan: You may want to make a different presentation before the committee if you're excluded.
Ms Murdock: Yesterday, the schedule was submitted along with the charts, when you were here yesterday, the schedule lists seeking employers and proxy employers and they would fall under that, "services for children and families."
Mrs Caplan: So my question is, are they covered?
Ms Murdock: Yes.
Ms Binder: We found out yesterday --
Mrs Caplan: Because I think it is important. We've had a number of groups coming and saying they felt that establishments with under 10 should be covered. I think there's been a perception that this establishment would not be and I think it's important to clarify it in this situation.
Sorry there was that confusion. I just wanted to make sure you knew, before you left, whether you were or were not covered and I'm glad the parliamentary assistant was finally able to figure it out for you.
Ms Murdock: Finally got it, yes.
Mrs Caplan: There is some confusion, because we've heard discussions of the discriminatory nature of this legislation and what we know is that women in the private sector in workplaces with fewer than 10 employees are still not entitled to a proactive pay equity plan.
Ms Murdock: Private sector doesn't use proxy, though. I mean, the proxy does not move to --
Mrs Caplan: So I guess my question is, if there was a commercial child care centre with eight employees, are they covered by this legislation or not? Yes or no?
Ms Poole: Because they are private employers.
Mrs Caplan: That's private sector, if it's a commercial child care centre.
Ms Murdock: That's a good question. I would have to find out the answer, but I would say it wouldn't fit.
The Chair: Possibly you could come back with that answer tomorrow.
Ms Murdock: I will check with my ministry staff tonight, maybe, and get back to you tomorrow.
Ms Poole: Can I just ask, for clarification, are you a commercial child care centre, a private child care centre or a non-profit?
Ms Binder: Non-profit.
Ms Poole: So you definitely would be covered under the broader public sector.
Ms Murdock: They'd be okay.
Ms Sobers: I just want to make a statement that if we are not included, then there's no other way to say it, it's basic discrimination and very prejudicial in the sense of comparing us to only male jobs and lessening the value of the female job. There really should be no comparison, because a job is a job.
Mrs Caplan: How do you feel about your colleagues who are doing the same job in a child care centre in a private sector operation? They are not covered. Do you think that's fair?
Ms Sobers: That's not fair either. Private sector, small business, they're doing the same job.
Mrs Caplan: We hear so much from Bob Rae and the NDP about what's fair.
Ms Sobers: There are different classifications, but personally, if you went to the same school as I did, if you have the same degree, if you went through the same courses, you deserve the same pay as long as you have the educational background. As long as the day care is run properly, qualified day care, quality day care, there's no reason why the private sector shouldn't receive it as well.
The Chair: Ms Binder, Ms Sobers, Ms Patel, on behalf of this committee I'd like to thank you for taking the time out today and giving us your presentation. Thank you very much. Seeing no further business before this --
Ms Murdock: I just checked with my ministry staff. Jane is very helpful, thank God.
The Chair: Okay, Ms Murdock.
Mrs Caplan: Thank God and a whole lot of other people.
Ms Murdock: What would you do without your ministry intelligence? We certainly rely on them and they certainly help us. Chapter 34 of the regulations of the existing Pay Equity Act states that day nurseries operated by corporations and municipalities under the Day Nurseries Act, RSO 1980, c 111, receiving direct subsidies from the Ministry of Community and Social Services are covered. Day nurseries and private home day care agencies providing services and funded under agreements with municipalities under the Day Nurseries Act are covered.
Mrs Caplan: Regardless of size?
Ms Murdock: Yes, regardless of size. Most commercial day cares would be caught under that in some form or another, except if it is totally private and it's under 10, they're out of luck. I wouldn't want anybody to go around thinking that every single one is covered, but if they receive any money from the municipalities, then they would get caught under that regulation.
Ms Poole: One other clarification, if you get it even for tomorrow: What about a private sector child care where, for instance, they may have several children in who are subsidized but the centre itself receives no subsidy? There are two ways in Ontario that centres are treated, depending on the municipality. For the ones which are not receiving a direct grant or subsidy from the provincial government and yet they have children in there who are receiving subsidy, could you check and see what status those have?
Ms Murdock: That are or are not receiving subsidy?
Ms Poole: Where the children are receiving a subsidy but not the centre itself.
Ms Murdock: I see, not the centre itself. Okay, I'll look that up.
The Chair: Seeing no further business before this committee, this committee stands adjourned until 9:30 tomorrow morning.
The committee adjourned at 1713.