“It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are per- forming work of equal value.” –Canadian Human Rights Act, §. 11, 1975-76)
According to the Canadian Charter of Rights and Freedoms: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” However, more than 25 years after the adoption of the Charter, the obligation to implement pay equity is still unmet. Although women now have the legal right to participate in the workforce and benefit economically from their labour without discrimination on the basis of sex, regardless of age, occupation or education, full-time working women still earn only 72.5 per cent of men’s salaries. A test case for why the legal obligation to implement pay equity remains unfulfilled has recently been played out in Canada’s courts and federal/provincial system involving unionized female health-care workers in Newfoundland.
The Fight for Pay Equity
Back in 1988, the Newfoundland Association of Public Employees (NAPE) and the Newfoundland government negotiated a “Pay Equity Agreement.” The government agreed there had been systemic discrimination against women employees in the provincial public service for decades. The parties negotiated a partial repayment and a pay-equity process.
The first wage increase was to be made effective April 1, 1988, and paid in increments over four years, with the full balance to achieve pay equity paid out in the fifth year, on April 1, 1992. Three years later, when the joint union/government Pay Equity Steering Committee completed the job classifications and wage-adjustment schedules, the provincial government estimated the immediate cost of the agreement at $24 million.
In 1991, however, the Government of Canada cut Newfoundland’s transfer payments by $130 million. Threatened with a drop in its international credit rating, the Newfoundland government then declared a “severe fiscal crisis.” In April, 1991, projecting a current- year deficit of $120 million, and a $200-million deficit for 1991/92, the government passed the Public Sector Restraint Act in the House of Assembly, made retroactive to April 1, 1991. This act froze the wage scales of all public-sector employees for one year, and delayed the first pay-equity increases to its female workforce for an additional three years. This meant not only that women’s agreed-upon pay adjustments were confiscated by legislation, but also that the wage restraint was disproportionately worse for female employees, because their wages were frozen at the discriminatory rate.
The union then filed grievances against the non-payment of the pay-equity wage adjustments, with an arbitration board subsequently ruling that the Public sector restraint act infringed the Charter because it “would have an adverse economic impact on females who had been subjected to widely recognized gender dis- crimination.” The Arbitration Board declared Section 9 of the Public Sector Restraint Act void on the grounds that it adversely affected a group of women working in the public sector, depriving them of the benefit of pay equity with employees in male-dominated job classifications. The board then ordered the government to comply with the original terms of the Pay Equity Agreement. Notwithstanding this development, Ronald Noseworthy, the government nominee on the board, dismissed the grievances on the grounds that the act was legislation “of an emergency nature,” and a “high degree of deference” is owed to the House of Assembly “when they are allocating scarce resources amongst competing groups.”
This fundamental disagreement about what sort of fiscal crisis, if any, can justify limiting a right guaranteed in the Canadian Charter of Rights and Freedoms played itself out in three levels of court over the next seven years.
Three (Bad) Court Decisions
In 1998, the Newfoundland Supreme Court, Trial Division, quashed the decision of the board and dismissed the grievances. Judge Mercer agreed that Section 9 of the Act infringed Section 15(1) of the Charter, but held that the courts should defer to the legislature when that body responds to social problems–including the resolution of competing rights between different sectors of society.
In Judge Mercer’s view, the objective of reducing expenditures in a period of severe fiscal restraint for Newfoundland was sufficiently important to justify limiting equality rights. Section 1 of the charter, he argued, guarantees universal rights and freedoms “sub- ject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
In 2002, the Newfoundland Court of Appeal argued that the government had made reasonable efforts to minimize the infringe- ment of female workers’ equality rights, and also dismissed the appeal.
In 2004, the Supreme Court of Canada’s NAPE v. Newfoundland decision concluded that the Public Sector Restraint Act amounted to gender discrimination–but also argued that the Government of Newfoundland and Labrador was justified in cancelling pay adjustments that would have eliminated discrimination in the wages of women health-care workers.
The Supreme Court accepted the government’s claim of fiscal crisis on what it acknowledged was “a casually introduced record” of Public Accounts and Hansard excerpts with statements from the Treasury Board president and finance minister.
Newfoundland and Labrador women workers’ right to equal pay “did not outweigh the importance of preserving the fiscal health of a provincial government through a temporary but serious financial crisis,” said the Supreme Court, and dismissed the appeal.
Crisis? What Crisis?
In a pay-equity bulletin posted on its website, the National Association of Women and the Law (NAWL) suggested that the government’s fiscal state of affairs cannot reasonably be considered “unprecedented,” as it was significantly better than it had been for years. “The Court accepted the government’s word that violating women’s rights was necessary on shockingly weak evidence, and did not seriously test the Newfoundland government’s claim regarding the ‘severe fiscal crisis.’”
The evidence supports their claim. According to the Newfoundland Public Accounts, deficits in each of the previous five years were higher than the projected $120-million deficit for 1991. In 1986, Newfoundland suffered a deficit of $256 million without declaring a crisis.
On December 10, 2004, the 56th anniversary of the United Nations Universal Declaration on Human Rights, NAWL, the Feminist Alliance for International Action (FAFIA) and Newfoundland and Labrador’s Provincial Advisory Council on the Status of Women (PACSW) launched a national protest against the Supreme Court’s decision. They demanded that the Government of Canada demonstrate its commitment to women’s human rights and help the Government of Newfoundland and Labrador to repay the $80-million debt to women health-care workers.
NAWL spokeswoman Andre Cote has stated: “We want Prime Minister Paul Martin to reject this approach by governments, as it is in contravention of Canada’s commitment to promote the substantive equality of women. women and other groups that are socially and economically disadvantaged in canada count on governments to allocate resources in ways that will bring us up to the standard of equality. If the court stops upholding rights when money is at stake, it will always be women, and others who are unequal, whose equality rights will be overridden.”
In a show of support, over a hundred equality-seeking groups from every region of Canada have written to Premier Danny Williams to protest the refusal to pay women back for decades of wage discriminations. They have also urged Prime Minister Paul Martin to direct officials and lawyers acting for the Government of Canada not to endorse the notion that women’s human rights can be ignored because of “fiscal crisis.”
A vigorous national lobbying effort was needed to ensure the inclusion of women’s equality rights in the Charter. Women will only succeed in achieving respect for their human rights by actively participating in public campaigns to force the governments at both provincial and federal levels to respect principles of equality.
Women shouldn’t have to accept discriminatory treatment in the name of debatable claims for fiscal restraint. No excuse is accept- able for Canada failing to meet its obligation to pay women fair and equitable wages. Women’s equality rights cannot be rejected at the whim of government accountants and book-keepers.
April 17 will mark the twentieth anniversary of constitutional equality rights in canada. NAPE v. Newfoundland demonstrates that women have not achieved the promise of the Charter. The fight for justice, dignity and equality must continue.
Lois Moorcroft was Minister of Justice, Education and the Women’s Directorate in the Yukon’s NDP government from 1996 to 2000. She is an advocate for women’s equality and a consultant on labour, First Nations and human rights. Her work has appeared in The Canadian Parliamentary Review and the OptiMSt.
This article appeared in the March/April 2005 issue of Canadian Dimension .