Guidelines Respecting the Application of Section 11 of the Canadian Human Rights Act and Prescribing Factors Justifying Different Wages for Work of Equal Value
The Canadian Human Rights Commission, pursuant to subsections 11(3) and 22(2)Footnote * of the Canadian Human Rights ActFootnote **, hereby revokes the Equal Wages Guidelines, made on September 18, 1978Footnote ***, and makes the annexed Guidelines respecting the application of section 11 of the Canadian Human Rights Act and prescribing factors justifying different wages for work of equal value, in substitution therefor.
Ottawa, November 18, 1986
ASSESSMENT OF VALUE
3. For the purposes of subsection 11(2) of the Act, intellectual and physical qualifications acquired by experience, training, education or natural ability shall be considered in assessing the skill required in the performance of work.
4. The methods by which employees acquire the qualifications referred to in section 3 shall not be considered in assessing the skill of different employees.
5. For the purposes of subsection 11(2) of the Act, intellectual and physical effort shall be considered in assessing the effort required in the performance of work.
6. For the purpose of section 5, intellectual and physical effort may be compared.
7. For the purposes of subsection 11(2) of the Act, the extent of responsibility by the employee for technical, financial and human resources shall be considered in assessing the responsibility required in the performance of work.
8. (1) For the purposes of subsection 11(2) of the Act, the physical and psychological work environments, including noise, temperature, isolation, physical danger, health hazards and stress, shall be considered in assessing the conditions under which the work is performed.
(2) For the purposes of subsection 11(2) of the Act, the requirement to work overtime or to work shifts is not to be considered in assessing working conditions where a wage, in excess of the basic wage, is paid for that overtime or shift work.
METHOD OF ASSESSMENT OF VALUE
9. Where an employer relies on a system in assessing the value of work performed by employees employed in the same establishment, that system shall be used in the investigation of any complaint alleging a difference in wages, if that system
(a) operates without any sexual bias;
(b) is capable of measuring the relative value of work of all jobs in the establishment; and
(c) assesses the skill, effort and responsibility and the working conditions determined in accordance with sections 3 to 8.
EMPLOYEES OF AN ESTABLISHMENT
10. For the purpose of section 11 of the Act, employees of an establishment include, notwithstanding any collective agreement applicable to any employees of the establishment, all employees of the employer subject to a common personnel and wage policy, whether or not such policy is administered centrally.
COMPLAINTS BY INDIVIDUALS
11. (1) Where a complaint alleging a difference in wages is filed by or on behalf of an individual who is a member of an identifiable occupational group, the composition of the group according to sex is a factor in determining whether the practice complained of is discriminatory on the ground of sex.
(2) In the case of a complaint by an individual, where at least two other employees of the establishment perform work of equal value, the weighted average wage paid to those employees shall be used to calculate the adjustment to the complainant’s wages.
COMPLAINTS BY GROUPS
12. Where a complaint alleging different wages is filed by or on behalf of an identifiable occupational group, the group must be predominantly of one sex and the group to which the comparison is made must be predominantly of the other sex.
13. For the purpose of section 12, an occupational group is composed predominantly of one sex where the number of members of that sex constituted, for the year immediately preceding the day on which the complaint is filed, at least
(a) 70 per cent of the occupational group, if the group has less than 100 members;
(b) 60 per cent of the occupational group, if the group has from 100 to 500 members; and
(c) 55 per cent of the occupational group, if the group has more than 500 members.
14. Where a comparison is made between the occupational group that filed a complaint alleging a difference in wages and other occupational groups, those other groups are deemed to be one group.
15. (1) Where a complaint alleging a difference in wages between an occupational group and any other occupational group is filed and a direct comparison of the value of the work performed and the wages received by employees of the occupational groups cannot be made, for the purposes of section 11 of the Act, the work performed and the wages received by the employees of each occupational group may be compared indirectly.
(2) For the purposes of comparing wages received by employees of the occupational groups referred to in subsection (1), the wage curve of the other occupational group referred to in that subsection shall be used to establish the difference in wages, if any, between the employees of the occupational group on behalf of which the complaint is made and the other occupational group.
16. For the purpose of subsection 11(3) of the Act, a difference in wages between male and female employees performing work of equal value in an establishment is justified by
(a) different performance ratings, where employees are subject to a formal system of performance appraisal that has been brought to their attention;
(b) seniority, where a system of remuneration that applies to the employees provides that they receive periodic increases in wages based on their length of service with the employer;
(c) a re-evaluation and downgrading of the position of an employee, where the wages of that employee are temporarily fixed, or the increases in the wages of that employee are temporarily curtailed, until the wages appropriate to the downgraded position are equivalent to or higher than the wages of that employee;
(d) a rehabilitation assignment, where an employer pays to an employee wages that are higher than justified by the value of the work performed by that employee during recuperation of limited duration from an injury or illness;
(e) a demotion procedure, where the employer, without decreasing the employee’s wages, reassigns an employee to a position at a lower level as a result of the unsatisfactory work performance of the employee caused by factors beyond the employee’s control, such as the increasing complexity of the job or the impaired health or partial disability of the employee, or as a result of an internal labour force surplus that necessitates the reassignment;
(f) a procedure of gradually reducing wages for any of the reasons set out in paragraph (e);
(g) a temporary training position, where, for the purposes of an employee development program that is equally available to male and female employees and leads to the career advancement of the employees who take part in the program, an employee temporarily assigned to the position receives wages at a different level than an employee working in such a position on a permanent basis;
(h) the existence of an internal labour shortage in a particular job classification;
(i) a reclassification of a position to a lower level, where the incumbent continues to receive wages on the scale established for the former higher classification; and
(j) regional rates of wages, where the wage scale that applies to the employees provides for different rates of wages for the same job depending on the defined geographic area of the workplace.
17. For the purpose of justifying a difference in wages on the basis of a factor set out in section 16, an employer is required to establish that the factor is applied consistently and equitably in calculating and paying the wages of all male and female employees employed in an establishment who are performing work of equal value.
18. In addition to the requirement of section 17, for the purpose of justifying a difference in wages on the basis of paragraph 16(h), an employer is required to establish that similar differences exist between the group of employees in the job classification affected by the shortage and another group of employees predominantly of the same sex as the group affected by the shortage, who are performing work of equal value.
19. In addition to the requirement of section 17, for the purpose of justifying a difference in wages on the basis of paragraph 16(i), an employer is required to establish that
(a) since the reclassification, no new employee has received wages on the scale established for the former classification; and
(b) there is a difference between the incumbents receiving wages on the scale established for the former classification and another group of employees, predominantly of the same sex as the first group, who are performing work of equal value.
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