Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER March 24, 2014 March 24, 2014 EMPLOYMENT LAW EMPLOYMENT LAW 5 Catherine Gagné Legal View Portion of Quebec's pay equity law struck down Portion of Quebec's pay equity law struck down A Quebec judge has declared sections of the province's pay equity legislation to be invalid. In Alliance du personnel profes- sionnel et technique de la santé et des services sociaux c. Québec (Procureur général), Quebec Su- perior Court Justice Édouard Martin declared sections 76.3 and 76.5 of the Pay Equity Act (PEA) to be invalid, inapplicable and of no force or eff ect. The sections were declared invalid because they aff ect the right to equal salary for equiva- lent work without distinction based on gender, as guaranteed under the Canadian Charter of Rights and Freedoms and Que- bec's Charter of Human Rights and Freedoms. e PEA was enacted to rem- edy certain situations of systemic discrimination suff ered by groups of employees who occupied posi- tions in predominantly female job classes. By adopting the PEA, Quebec required all employers with 10 or more employees to: •implement a pay equity plan al- lowing each employer to identify job classes that are predominant- ly female •measure discriminatory diff er- ences in compensation between these predominantly female job classes and predominantly male job classes •make the necessary adjustments to achieve pay equity. When the PEA was enacted, sections 40 to 43 also provided that after having completed a pay equity plan, an employer was required to maintain pay equity continuously. Also, if changes within the organization compromised the pay equity maintenance, the employer was required to make the appropriate adjustments to remedy the situation. However, these provisions did not indicate what measures employers were required to take in order to audit pay equity maintenance. In 2009, the legislature passed An Act to amend the Pay Equity Act (2009 Amending Act) which sought, among other things, to clarify the applicable rules for au- diting pay equity maintenance. As a result — after having im- plemented a pay equity plan — employers are now required to: •audit pay equity maintenance ev- ery fi ve years •post the audit results for employ- ees to see and include a mini- mum amount of information •accept requests for information from employees or the associa- tion representing them and al- low the available remedies to be exercised. Alliance decision deals with unions In Alliance, the public sector unions fi led an application in the Quebec Superior Court seeking to have certain sections introduced into the PEA by the 2009 Amend- ing Act declared invalid because, according to them, these sections aff ected the right to equal salary for equal work without distinction based on gender, as guaranteed under both the Canadian charter and the Quebec charter. Among the provisions chal- lenged by the applicants, three in particular drew the court's at- tention — section 14 of the 2009 Amending Act, which repealed sections 40 to 43 of the PEA, as well as sections 76.3 and 76.5 of the PEA. Section 14 According to the unions, by re- pealing sections 40 to 43 of the PEA — which had provided for continuous pay equity mainte- nance — and replacing them with a requirement to audit pay eq- uity every fi ve years, the legisla- tor compromised the employees' right to equal salary without dis- tinction based on gender. The applicants argued that only continuous pay equity main- tenance can ensure this right is respected. However, their arguments did not convince the court, which found that section 24 of the 2009 Amending Act, which repealed sections 40 to 43 of the PEA, did not have the discriminatory eff ect claimed by the applicants. The court said the periodic audit method was one of the choices the legislature was enti- tled to make to ensure pay equity maintenance. Summary of sections 76.3 and 76.5 Sections 76.3 and 76.5 of the PEA read as follows: "76.3. After conducting a pay equity audit, the pay equity audit committee, or the employer in the absence of such a committee, shall post the audit results for 60 days in prominent places easily accessible to employees. The posting shall include: (1) a summary of the pay equity audit process; (2) a list of the events leading to compensation adjustments; (3) a list of the predominantly fe- male job classes that are entitled to compensation adjustments; (4) the percentage or amount of the compensation adjustments to be paid; and (5) the posting date and informa- tion on the rights exercisable under section 76.4 and the time within which they may be exer- cised. e pay equity audit commit- tee, or the employer in the absence of such a committee, shall, by a means of communication likely to reach the employees, inform them of the posting and provide details such as the posting date, the posting period and how they may access its content... 76.5. Subject to the third para- graph of section 101, the compen- sation adjustments apply from the date that is the time limit for the new posting under the second paragraph of section 76.4. Unpaid compensation adjust- ments shall bear interest at the legal rate from that date." Although Martin concluded the legislature was entitled to opt e court said a periodic audit of pay equity – rather than "continuous pay equity maintenance" – was OK, but the lack of retroactive payments was not. CONTRARY > pg. 6

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