Canadian HR Reporter

CANADIAN HR REPORTER September 7, 2015 24 FEATURES/NEWS get the experience until they get a job and, on top of that, you layer in a very competitive marketplace and a student debt load… the pressure on these individuals and the need to do whatever it takes takes on a different level for them. In many cases, I'm sure some of them think they have to do this, even though they can't afford it." In April, the federal govern- ment proposed amendments to the Canada Labour Code that would cover interns under occu- pational health and safety laws. But the changes aren't enough to solve the numerous issues created by unpaid internships, according to Claire Seaborn, founder and president of the Canadian Intern Association in Toronto. A key challenge is there's virtu- ally no collected data in Canada to quantify the scope of the problem, said Seaborn. "at's been a real issue for us in terms of our lobbying with the government because they're con- stantly asking for data, but there isn't any. So a lot of policy-makers and politicians are finding it more challenging to make those argu- ments when they don't have the data to support it," she said. "For that reason, the past three times that I've appeared before the House (of Commons) finance committee, we've urged Statistics Canada to begin collecting data on unpaid internships and intern- ships in general, as well as work- integrated learning programs. "Hopefully, that would include the socio-economic backgrounds of interns so we could get a better idea of whether people from more privileged backgrounds are more likely to be doing unpaid work. Of course, anecdotally, that's the case." Business risks Seaborn and the Canadian Intern Association receive a vast amount of email from young workers who are unable to do unpaid intern- ships because they simply can't af- ford it. at's bad for those young workers but it's also bad for em- ployers, said Seaborn. "Essentially, those businesses are just cutting out a whole group of workers who are unable to do that internship," she said. It effectively creates a paywall which is particularly challenging for the creative industries, said Alec Dudson, creator of Intern Magazine in Manchester, U.K. "Surely, creativity isn't some- thing that's exclusive to the wealthy?" he said. "A Sutton Trust study (in the U.K.) recently claimed that it costs a single person £926 a month to work an unpaid internship in London. It's an extreme figure… but one that shows you just how many people aren't able to take these positions on." Many who do unpaid intern- ships have to simultaneously work paid jobs, which can significantly strain the worker's productivity and well-being, said Seaborn. "For that reason, we tend to urge companies — even if they're running legal unpaid internships through academic programs — to restrict the number of hours to 20, 30 hours per week to allow the unpaid intern to do a paid position on top of their unpaid internship, so that way it becomes a lot more accessible for people who can't af- ford it." And regardless of sector, un- paid internships are a reputational risk for organizations, said Perlin. "(For) some employers who have openly advertised unpaid in- ternships… it really has backfired." HootSuite is one Canadian company that faced backlash in 2013 for unpaid internship prac- tices, said Perlin, which resulted in the company ending the prac- tice and providing backpay to interns. "ere's a growing awareness that you have to pay for real work," he said. ere are many solid business reasons why strong organizations put diversity at the heart of re- cruitment efforts, said Perlin. "It can be kind of impossible to know exactly what sets of skills and what sets of backgrounds you're going to need in the evolu- tion of your business and the evo- lution of society," he said. "For larger organizations in gen- eral, it's very clear-cut that there is real demand for representation. If you don't have a workforce, if you don't have a pool of talent at the table when you're making deci- sions that is representative of the society and the market and the world that you're looking to reach, it's very likely that you won't know how to reach it. And people look- ing from the outside will say, 'is organization doesn't get it. ey don't represent me, where I'm coming from.'" Employers missing out on valuable talent pool INTERNS < pg. 11 LABOUR RELATIONS Renewed hope for female workers Court ruling could settle historic wage discrimination claim at Nav Canada By Sabrina Nanji A recent court decision has renewed a wage dis- crimination fight for fe- male employees at Nav Canada, the nation's civil air navigation system. The decision from the Federal Court of Appeal addresses a 15-year-old historic settlement between the Public Service Alli- ance of Canada (PSAC) and the federal government. Back in 1999, the parties reached a $3.6-billion deal that settled pay discrimination for thousands of workers in female-dominated po- sitions going back decades. How- ever, one group of employees was only compensated for the years they worked at Transport Canada, until 1996, when Nav Canada took over the air navigation system. ere was no adjustment for any work done at Nav Canada, which the union alleges contin- ued to use discriminatory prac- tices until 2011, when it adopted a non-discriminatory wage scheme. PSAC took the case to the Ca- nadian Human Rights Commis- sion in 2002. at case was dis- missed without an investigation in 2012 on the basis it fell outside the commission's jurisdiction. In July, the federal appeals court overturned the commission's rul- ing, dismissing its conclusion that PSAC's allegations against Nav Canada as an individual employ- er, and separate from the Treasury Board, were unfounded. "e commission's role is to de- termine whether the alleged facts, taken as true, give rise to a sustain- able complaint," said the decision. "Making a finding on this issue — determining the employer for the purposes of a human rights com- plaint — required the commission to apply a legal standard to a set of facts in an area in which it has specialized expertise." For PSAC, the decision has re- vived the fight for equal pay and will hopefully lead to a full inves- tigation. at could mean retroac- tive pay amounting to thousands of dollars for 75 to 100 female employees who held positions between 1997 and 2011. "PSAC started fighting pay eq- uity cases as soon as it became federal law back in the late 1970s. What we've experienced con- sistently is the reluctance of em- ployers to accept pay equity as a human right, under the law," says Robyn Benson, PSAC's national president, adding that, in the case of lengthy pay equity disputes, a victory can be bittersweet. "Nav Canada is just one more example of employers resisting the law and dragging out pay equity complaints in the courts — all to the detriment of the women who are entitled to pay equity," says Benson. "is case isn't over yet and could end up back in court. We're getting tired of seeing retro- active pay equity payments made to the estates of women who were entitled to the money during their lifetimes." Nav Canada declined an oppor- tunity for comment as the case is currently before the courts. Litigation lag It is not uncommon for pay equity claims to drag on, says Sundeep Gokhale, a labour lawyer at Sher- rard Kuzz in Toronto. And that can have implications for both the employer and employees. "is shows employers every- where — provincially or federally regulated — that the clock doesn't stop. And the damages are con- tinuing to accrue," he says. "In this case, you're looking at 14 years of potential damages for failure to abide by the increases and that includes people who have retired, people who have quit, people who have been terminated. And you have to go back to not just one person — it could be multiple people who had done that job for the last 14 years." e challenge is then relying on the employer's job evaluation system. Gokhale says the method by which the employer created a pay equity plan and attached value to the job function can oftentimes be challenged by a union or party conducting an investigation. "The human rights commis- sion or union at this point will come in and say, 'No, that wasn't a fair assessment' and oftentimes you get into litigation of what is a fair assessment," he says, adding that employers would do well to strengthen their job evaluation tools to avoid further dispute. Because of the amount of time and resources spent on wage dis- crimination claims, there is always a question of liability, says Alison McEwen, a labour and employ- ment lawyer at Nelligan O'Brien Payne in Ottawa. But it's not just about the mon- ey, she says. Settling claims can also be a way for an employer to evaluate and ensure it won't be back in courts in another decade. "For sure, it's partially about the money, but it's also partially about equality going forward," she says. "Especially in workplaces where the pay equity hasn't been re- solved, I think parties should look at not only what they can pay to settle the past, but also really turn their minds to what they need in the future to make it an equitable workplace — so that they're not just doing this exact same thing again in five years." Closer look by unions When high-profile cases such as the Nav Canada decision come into the spotlight, it could prompt unions to look at pay equity with a more discerning eye, says Gokhale. "Unions are going to realize that there's potentially money out there and it may cause them to start to critically analyze existing pay eq- uity plans," he says. "In collective bargaining, a lot of unions simply want to cross off the box, to say, 'Yes there's a pay eq- uity plan in place.' But when these types of high-profile pieces of liti- gation arrive, I think unions may now start to look deeper into pay equity plans to make sure they're accurate." "Unions are going to realize there's potentially more money out there and... critically analyze pay equity plans."

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