Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER March 24, 2014 March 24, 2014 6 NEWS NEWS for the periodic method of audit- ing the pay equity maintenance, the lack of retroactivity appli- cable to an employer's obliga- tion to pay compensation adjust- ments following changes within the employer was, according to him, a source of gender-based discrimination. To support this conclusion, Martin referred in particular to evidence presented by the par- ties that claimed the potential compensation losses resulting from the lack of retroactivity of payments were not negligible, especially for employees retiring before the expiry of the fi ve-year audit period. e reduced wages earned by such employees would have a ripple effect on the retirement benefi ts paid to them. These compensation adjust- ments should be payable retroac- tively from the date on which the changes within the organization occurred, said Martin. Moreover, the fact that section 76.3 did not require employers to inform employees of the date on which such changes had oc- curred also aff ected their right to equal pay without distinction based on gender, he found. For these reasons, "sections 76.3 and 76.5 of the PEA leave behind a lingering whiff of the systemic discrimination the PEA was intended to eliminate. Such a situation runs contrary to the acquired rights we consider to be fundamental and cannot be toler- ated in a free and democratic so- ciety," concluded Martin.(Trans- lated from French.) Suspended conclusions Although Martin declared sections 76.3 and 76.5 to be invalid, inapplicable and of no force or effect, he also ordered that his conclusions be suspended for a maximum of one year or until the legislature remedies the situ- ation — whichever circumstance occurs fi rst. e province has announced its intention to appeal the Alliance decision. The Court of Appeal will therefore be called upon to rule on the validity of such statu- tory provisions. Catherine Gagné is an associate in the labour and employment group at Blakes in Montreal. She can be reached at catherine.gagne@blakes. com, (514) 982-5061 or visit www. blakes.com for more information. Contrary to rights Contrary to rights PAY EQUITY < pg. 5 them on the grounds engineers from countries such as Ireland and France are typically exempt from confi rmatory exams. Mihaly was also assigned the National Professional Practice Exam, which all engineers — even Canadian-trained ones — are re- quired to write. He took the exam three times but was unable to pass. After hearing a discrimination complaint by Mihaly, Alberta's hu- man rights tribunal, in a decision by chair Moosa Jiwaji, ordered Al- berta's engineering licensing body to pay Mihaly $10,000 and imple- ment a number of new measures in reassessing his case. e extent of the remedy that was issued is surprising, said Tim- othy Mitchell, partner at Norton Rose Fulbright in Calgary. "It places a very high obligation on self-regulated professional bodies to take signifi cant positive steps," he said. "(It sets out) a very high threshold." Appeal possible Alberta's licensing body for engi- neers — the Association of Pro- fessional Engineers and Geosci- entists of Alberta (APEGA) — has appealed the tribunal decision. But if the decision stands, APEGA will face a number of remedies. Aside from the $10,000 in gen- eral damages to be paid to Mihaly, APEGA was ordered to consult Mihaly's educational institutions to review his transcripts, allow him to challenge specifi c exami- nations where he is not granted an exemption and establish a committee of foreign-trained en- gineers to assess Mihaly's case. e association was also or- dered to assign Mihaly a mentor and direct him to professional re- sources and community resources to increase his English-language profi ciency. "Foreign-trained engineers face diffi culties when seeking employ- ment in Canada because they do not have any prior Canadian experience," wrote Jiwaji in the decision. "It potentially lends to the ex- ploitation of these foreign profes- sionals who, under pressure to ob- tain an income to provide for their families, usually end up accepting low-paying jobs in engineering fi rms or elsewhere to make ends meet and trying to satisfy APE- GA's requirements." e sheer extent of these rem- edies marks a departure from previous decisions in regards to self-regulated professions, said Mitchell. "I would say that the extent to which they went here is far further than I've ever seen in any decision involving an association before." e decision has certainly cap- tured the attention of other self- regulated professions in the prov- ince, including the Law Society of Alberta and the College of Physi- cians and Surgeons of Alberta. Both organizations said they will be watching the appeals process closely. Licensing process APEGA has a complex process in place for evaluating foreign- trained engineering credentials, according to Edmonton-based APEGA registrar Carol Moen — and that process is there for a reason. "With dozens of diff erent coun- tries and thousands of diff erent institutions, there is a fairly elabo- rate process for how we do review all the academics," she said. "After you look at academics, you always look at experience as well." In many cases, foreign-trained engineers will not have to take any confi rmatory exams if they are covered by a mutual recognition agreement (MRA), as with coun- tries such as France, Australia, the United States, Hong Kong, Japan and numerous others. "We review those academics with the intention of always look- ing to exempt them from exams," said Moen, adding 50 to 60 per cent of foreign-trained engineers are licensed without having to take additional exams. Experience is also a major fac- tor in waiving exams. Confi rma- tory exams are generally only as- signed when APEGA is not famil- iar with the school or degree and wishes to confi rm the applicant's education is suffi cient. "But there are cases where we don't see a high level of quality experience such that we are com- fortable to verify their technical knowledge and simply 'let them go' relative to practising engineer- ing in the province," said Moen. "(We must) ensure that only qualifi ed, capable and ethical indi- viduals are practising engineering or geo-science in the province… on a day-to-day basis, they're making decisions that can abso- lutely impact our citizens." It really is a thorny issue, said Mitchell. "While I feel for Mihaly, I bal- ance that with APEGA's obliga- tion… to ensure that there's a minimum standard in place," he said. " ey have to set reasonable standards and, in so doing, ensur- ing the safety of Albertans." Implications Whether the engineering asso- ciation is successful in its appeal remains to be seen. But should the decision stand, it could create a precedent for self-regulated pro- fessions' licensing requirements, said Mitchell. "It has huge precedential pos- sibility — for lawyers, for doctors, chiropractors, any of the (self-reg- ulated) professions which require their applicants for membership to take equivalency exams and to pass certain examinations," he said. "It's going to have signifi cant implications to those organiza- tions as far as how far they have to go in accommodating those people that seek to gain member- ship… e issue really in this case is more about the right of these associations to set these equiva- lency exams, and to (set) certain steps and hurdles before you have the right to take those national exams." Safety concerns If self-regulated professions are forced to accommodate foreign workers beyond a certain point, it could create a public safety issue, according to John Gamble, presi- dent of the Association of Con- sulting Engineering Companies, based in Ottawa. "Canada has one of the best regulatory regimes in the world and, by design, has very rigorous standards," he said. "It's very troubling that some- body can come in and not only not feel that they should have to justify their qualifi cations but to actually take the exams and fail them… it's very troubling that a quasi-judiciary process could make a decision that, taken to the extreme, could actually put Cana- dian lives in danger." Engineers in particular have "the luxury of being invisible," said Gamble — you don't think much about their work because mishaps are so extraordinarily rare. But that's because of Canada's regime of high regulatory stan- dards — which could be threat- ened by the decision, he said. "I would hate for that re- gime to be weakened or even jeopardized." If the decision is upheld, em- ployers may have to do more due diligence to ensure they are hir- ing the most qualifi ed candidates, said Mitchell. " e takeaway for employers is, if this decision stands... they're going to have to more carefully look at their positions that they have, their job descriptions and what is required by those posi- tions, rather than simply assum- ing that somebody who has met the requirements to become an engineer has all the necessary re- quirements," he said. " ey're going to have to be more thoughtful in their exami- nation of the particular aspects of the job to ensure that they have the best-qualifi ed applicant fi lling those positions." Association must set reasonable standards Association must set reasonable standards CREDENTIALS < pg. 1 "(We must) ensure only qualifi ed, capable and ethical individuals are practising engineering… they're making decisions that can impact our citizens."

• Cover