Maintaining Pay Equity: Commission Audits Put Pay Equity Back in the Spotlight

By Fay Faraday

The Pay Equity Commission has recently been more active in initiating audits of Ontario workplaces to monitor compliance with the Pay Equity Act. In comments made at an OFL Pay Equity Conference on November 14, 2006, Ontario Pay Equity Commissioner Emanuela Heyninck indicated that the Commission is ramping up its pay equity audits and that they will be an ongoing and regular part of the monitoring. Commissioner Heyninck noted that there are particular problems with pay equity compliance in the private sector.

The increase in audits is leading employers to review the status of pay equity in their establishments. Employers who have not complied with their obligations to achieve and maintain pay equity under the Act could face significant liabilities in terms of wages (both back pay and future wages) owed to women workers.

In this context it is particularly important for unions to ensure that they are also actively monitoring pay equity implementation in their workplaces and upholding their obligations to both achieve pay equity as set out in their pay equity plans and to maintain pay equity in the face of changes in the workplace. It is important to stress that while the employer has the primary duty to achieve and maintain pay equity, employers and unions both have legal obligations under the Act to ensure pay equity compliance.

Under s. 7(1) of the Act, employers have the obligation to “establish and maintain compensation practices that provide for pay equity”. Section 7(2) provides that “no employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted,” would breach the duty to establish and maintain pay equity.

While much work has been done across the province, particularly in the 1990s, to prepare pay equity plans, much work remains to be done to ensure that pay equity is in fact achieved under those plans and that pay equity is maintained as conditions in the workplace evolve.

The obligation to maintain pay equity is an ongoing process to ensure that female job classes are not subject to any systemic discrimination in their compensation. The obligation to “maintain” pay equity is an ongoing obligation of both employers and unions. It means that the workplace parties must take active steps to ensure that any discriminatory wage gap identified in the initial pay equity plan is closed and that it is not allowed to re-open or widen.

Unions and employers must monitor their workplaces for any changes that can affect the validity of their pay equity plans. Changed circumstances that can trigger the obligation to re-examine the status of pay equity include:

• changes to the duties of existing job classes;
• creation of new job classes;
• elimination of male comparator job classes;
• new union certifications;
• changes to the status of the bargaining agent; and
• business restructuring, including the sale of a business, mergers, acquisitions or amalgamations.

Any of these circumstances may require the union and employer to re-evaluate particular job classes, conduct new comparisons and determine whether new pay equity adjustments are owed. Where there has been a new union certification or a significant business restructuring, it may be necessary for the union and employer to follow through all the steps that are necessary to develop a pay equity plan.

To obtain a copy of the CHSM&C Resource Guide to Maintaining Pay Equity, prepared by Mary Cornish, Fay Faraday and Victoria Reaume, see below.