Budget Implementation Act, 2018, No. 2 (S.C. 2018, c. 27)

Short Title

Marginal note:Short title

1 This Act may be cited as the Pay Equity Act.

Purpose

Marginal note:Purpose

2 The purpose of this Act is to achieve pay equity through proactive means by redressing the systemic gender-based discrimination in the compensation practices and systems of employers that is experienced by employees who occupy positions in predominantly female job classes so that they receive equal compensation for work of equal value, while taking into account the diverse needs of employers, and then to maintain pay equity through proactive means.

Interpretation

Marginal note:Definitions

• 3 (1) The following definitions apply in this Act.

  bank rate

  bank rate means the rate of interest established periodically by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to members of the Canadian Payments Association. (taux d’escompte)

  bargaining agent

  bargaining agent has the same meaning as in subsection 2(1) of the Federal Public Sector Labour Relations Act or the same meaning as in subsection 3(1) of the Canada Labour Code, as the case may be. (agent négociateur)

  bargaining unit

  bargaining unit has the same meaning as in subsection 2(1) of the Federal Public Sector Labour Relations Act or the same meaning as in subsection 3(1) of the Canada Labour Code, as the case may be. (unité de négociation)

  compensation

  compensation means any form of remuneration payable for work performed by an employee and includes

  • (a) salaries, commissions, vacation pay, severance pay and bonuses;

  • (b) payments in kind;

  • (c) employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and

  • (d) any other advantage received directly or indirectly from the employer. (rémunération)

  core public administration

  core public administration has the same meaning as in subsection 11(1) of the Financial Administration Act. (administration publique centrale)

  dependent contractor

  dependent contractor has the same meaning as in subsection 3(1) of the Canada Labour Code. (entrepreneur dépendant)

  employee

  employee means

  • (a) a person employed in the public service, other than

    • (i) a person appointed by the Governor in Council under an Act of Parliament to a statutory position described in that Act,

    • (ii) a person locally engaged outside Canada, or

    • (iii) a person employed under a program designated by the employer as a student employment program;

  • (b) an officer or non-commissioned member of the Canadian Forces;

  • (c) a person employed by an employer referred to in paragraph (2)(e) on or in connection with the operation of any federal work, undertaking or business, as defined in section 2 of the Canada Labour Code, including a private constable, as defined in subsection 3(1) of that Act, other than

    • (i) a person employed under a program designated by the employer as a student employment program, or

    • (ii) a student employed by the employer solely during the student’s vacation periods;

  • (c.1) a person employed by an employer referred to in paragraph (2)(e.1), other than

    • (i) a person employed under a program designated by the employer as a student employment program, or

    • (ii) a student employed by the employer solely during the student’s vacation periods;

  • (d) in respect of an employer referred to in paragraph (2)(f), a dependent contractor;

  • (e) a person employed by the government of Yukon;

  • (f) a person employed by the government of the Northwest Territories; and

  • (g) a person employed by the government of Nunavut. (employé)

  employee organization

  employee organization has the same meaning as in subsection 2(1) of the Federal Public Sector Labour Relations Act. (organisation syndicale)

  group of job classes

  group of job classes means a series of job classes that bear a relationship to each other because of the nature of the work required to be performed within each job class in the series and that are organized in successive levels. (groupe de catégories d’emplois)

  Minister

  Minister means the member of the Queen’s Privy Council for Canada designated under section 5. (ministre)

  non-unionized employee

  non-unionized employee means an employee who is not a member of a bargaining unit, other than an employee who occupies a position declared to be a managerial or confidential position as defined in subsection 2(1) of the Federal Public Sector Labour Relations Act or an employee who performs management functions or is employed in a confidential capacity in matters relating to industrial relations. (non syndiqué)

  Pay Equity Commissioner

  Pay Equity Commissioner means the Pay Equity Commissioner appointed under subsection 26(1) of the Canadian Human Rights Act. (Commissaire à l’équité salariale)

  payroll

  payroll, in respect of an employer, means the total of all salaries payable to the employer’s employees. (masse salariale)

  public service

  public service means the several positions in or under

  • (a) the departments named in Schedule I to the Financial Administration Act;

  • (b) the other portions of the federal public administration named in Schedule IV to that Act; and

  • (c) the separate agencies named in Schedule V to that Act. (fonction publique)

  trade union

  trade union has the same meaning as in subsection 3(1) of the Canada Labour Code. (syndicat)

  Tribunal

  Tribunal means the Canadian Human Rights Tribunal established by section 48.1 of the Canadian Human Rights Act. (Tribunal)

  unionized employee

  unionized employee means an employee who is a member of a bargaining unit that is represented by a bargaining agent. (syndiqué)

• Marginal note:Employers

  (2) For the purposes of this Act, each of the following is considered to be an employer:

  • (a) Her Majesty in right of Canada as represented by the Treasury Board, in respect of the aggregate of the departments and other portions of the federal public administration named in Schedules I and IV, respectively, to the Financial Administration Act, except that the reference to the Royal Canadian Mounted Police in that Schedule IV is deemed to be a reference to the Royal Canadian Mounted Police only in respect of civilian employees appointed or employed in accordance with section 10 of the Royal Canadian Mounted Police Act;

  • (b) Her Majesty in right of Canada as represented by the Treasury Board, in respect of the Canadian Forces;

  • (c) Her Majesty in right of Canada as represented by the Treasury Board, in respect of the Royal Canadian Mounted Police, in relation to members as defined in subsection 2(1) of the Royal Canadian Mounted Police Act;

  • (d) in respect of a separate agency, as defined in subsection 11(1) of the Financial Administration Act, Her Majesty in right of Canada as represented by the separate agency;

  • (e) each person who employs employees in connection with the operation of any federal work, undertaking or business, as defined in section 2 of the Canada Labour Code, other than a work, undertaking or business of a local or private nature in Yukon, the Northwest Territories or Nunavut;

  • (e.1) a corporation established to perform any duty or function on behalf of the Government of Canada, other than a corporation named in Schedule IV or V of the Financial Administration Act;

  • (f) in respect of a dependent contractor, an employer as defined in paragraph (b) of that expression in subsection 3(1) of the Canada Labour Code; 

  • (g) the government of Yukon;

  • (h) the government of the Northwest Territories; and

  • (i) the government of Nunavut.

• Marginal note:References to employees in regards to Her Majesty in right of Canada

  (3) For the purposes of this Act, every reference to an employer’s employees is to be read as a reference to,

  • (a) in the case of Her Majesty in right of Canada as represented by the Treasury Board, as employer in respect of the aggregate of the departments and other portions of the federal public administration referred to in paragraph (2)(a), only employees employed in those departments and other portions, other than members as defined in subsection 2(1) of the Royal Canadian Mounted Police Act;

  • (b) in the case of Her Majesty in right of Canada as represented by the Treasury Board, as employer in respect of the Canadian Forces, only officers and non-commissioned members of the Canadian Forces;

  • (c) in the case of Her Majesty in right of Canada as represented by the Treasury Board, as employer in respect of the Royal Canadian Mounted Police, only members as defined in subsection 2(1) of the Royal Canadian Mounted Police Act; and

  • (d) in the case of Her Majesty in right of Canada as represented by a separate agency, as employer in respect of the separate agency, only employees employed in that separate agency.

Marginal note:Group of employers

• 4 (1) Two or more employers described in any of paragraphs 3(2)(e) to (i) that are subject to this Act may form a group and apply to the Pay Equity Commissioner to have the group of employers recognized as a single employer.

• Marginal note:References to employers

  (2) If a group of employers is recognized by the Pay Equity Commissioner as a single employer under section 106, every reference in sections 19 to 21, 27, 32, 35, 38 to 41, 43 to 50 and 54, subsection 57(1), sections 64, 75, 78, 79 and 82, subsections 85(1) and 104(2), sections 111, 147, 148 and 151, subsection 157(1) and paragraph 181(1)(c) to an employer is, in respect of the group of employers, to be read as a reference to that group of employers, unless the context otherwise requires.

• Marginal note:References to employers

  (3) If a group of employers is recognized by the Pay Equity Commissioner as a single employer under section 106, every reference in sections 118 to 120, subsections 149(2) and 150(3), paragraph 158(1)(b), subsections 158(2) and (3) and section 168 to an employer may, in respect of the group of employers, is to be read as a reference to that group of employers or to any employer in the group, as the context requires.

• Marginal note:Date on which group becomes subject to Act

  (4) If the Pay Equity Commissioner recognizes a group of employers as a single employer, the date on which the group of employers is considered to have become subject to this Act for the purpose of subsection 55(1) and paragraphs 61(1)(b) and 89(2)(b) is the date chosen by that Commissioner.

Designation of Minister

Marginal note:Designation of Minister

5 The Governor in Council may, by order, designate a member of the Queen’s Privy Council for Canada as the Minister for the purposes of this Act.

Application

Marginal note:Employers subject to Act on coming into force

6 The following employers become subject to this Act on the date on which this section comes into force:

• (a) an employer referred to in any of paragraphs 3(2)(a) to (d) that

  • (i) is considered under subparagraph 8(a)(i) to have 10 to 99 employees, or

  • (ii) is considered under subparagraph 8(b)(i) to have 100 or more employees; and

• (b) an employer referred to in any of paragraphs 3(2)(e) to (i) that

  • (i) is considered under subparagraph 9(a)(i) to have 10 to 99 employees, or

  • (ii) is considered under subparagraph 9(b)(i) to have 100 or more employees.

Marginal note:Later date in public sector — 10 to 99 employees

• 7 (1) An employer referred to in any of paragraphs 3(2)(a) to (d) that is considered under subparagraph 8(a)(ii) to have 10 to 99 employees becomes subject to this Act on the first day of the fiscal year immediately after the fiscal year in which the average of the number of the employer’s employees was at least 10 but less than 100.

• Marginal note:Public sector — 100 or more employees

  (2) An employer referred to in any of paragraphs 3(2)(a) to (d) that is considered under subparagraph 8(b)(ii) to have 100 or more employees becomes subject to this Act on the first day of the fiscal year immediately after the fiscal year in which the average of the number of the employer’s employees was 100 or more.

• Marginal note:Private sector and territorial governments — 10 to 99 employees

  (3) An employer referred to in any of paragraphs 3(2)(e) to (i) that is considered under subparagraph 9(a)(ii) to have 10 to 99 employees becomes subject to this Act on January 1 of the calendar year immediately after the calendar year in which the average of the number of the employer’s employees was at least 10 but less than 100.

• Marginal note:Private sector and territorial governments — 100 or more employees

  (4) An employer referred to in any of paragraphs 3(2)(e) to (i) that is considered under subparagraph 9(b)(ii) to have 100 or more employees becomes subject to this Act on January 1 of the calendar year immediately after the calendar year in which the average of the number of the employer’s employees was more than 100.

Marginal note:Determination of number of employees — public sector

8 For the purpose of sections 6 and 7

• (a) an employer referred to in any of paragraphs 3(2)(a) to (d) is considered to have 10 to 99 employees if

  • (i) the average of the number of the employer’s employees in the fiscal year immediately before the fiscal year in which this section comes into force is at least 10 but less than 100, or

  • (ii) the average of the number of the employer’s employees in the fiscal year in which this section comes into force or in any subsequent fiscal year is at least 10 but less than 100; and

• (b) an employer referred to in any of paragraphs 3(2)(a) to (d) is considered to have 100 or more employees if

  • (i) the average of the number of the employer’s employees in the fiscal year immediately before the fiscal year in which this section comes into force is 100 or more, or

  • (ii) the average of the number of the employer’s employees in the fiscal year in which this section comes into force or in any subsequent fiscal year is 100 or more.

Marginal note:Determination of number of employees — private sector and territorial governments

9 For the purpose of sections 6 and 7

• (a) an employer referred to in any of paragraphs 3(2)(e) to (i) is considered to have 10 to 99 employees if

  • (i) the average of the number of the employer’s employees in the calendar year immediately before the calendar year in which this section comes into force is at least 10 but less than 100, or

  • (ii) the average of the number of the employer’s employees in the calendar year in which this section comes into force or in any subsequent calendar year is at least 10 but less than 100; and

• (b) an employer referred to in any of paragraphs 3(2)(e) to (i) is considered to have 100 or more employees if

  • (i) the average of the number of the employer’s employees in the calendar year immediately before the calendar year in which this section comes into force is 100 or more, or

  • (ii) the average of the number of the employer’s employees in the calendar year in which this section comes into force or in any subsequent calendar year is 100 or more.

Marginal note:Exemption

10 The governments of Yukon, the Northwest Territories and Nunavut are exempt from the application of this Act until the date that the Governor in Council may, by order, specify in respect of that government.

Marginal note:Exemption

• 11 (1) Indigenous governing bodies that are employers are exempt from the application of this Act until the date that the Governor in Council may, by order, specify.

• Marginal note:Definition of Indigenous governing body

  (2) In this section, Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

PART 1Pay Equity Plan

Marginal note:Requirement to establish plan

12 Every employer must establish a pay equity plan in accordance with this Act in respect of its employees.

Marginal note:Requirement to establish plan — group of employers

13 Every group of employers must establish a pay equity plan in accordance with this Act in respect of the employees of the employers in the group.

Marginal note:Notice — employers referred to in subsection 16(1)

• 14 (1) An employer referred to in subsection 16(1) must post a notice

  • (a) setting out its obligation

    • (i) to establish a pay equity plan, and

    • (ii) to make all reasonable efforts to establish a pay equity committee for that purpose;

  • (b) setting out the requirements for the committee’s membership;

  • (c) informing its non-unionized employees, if any, of their right to designate the committee members who will represent them; and

  • (d) informing its unionized employees, if any, that their bargaining agent will select the committee members who will represent the employees who are members of any bargaining unit represented by that bargaining agent.

• Marginal note:Notice — employers referred to in subsection 16(2)

  (2) An employer referred to in subsection 16(2) must post a notice

  • (a) setting out its obligation to establish a pay equity plan; and

  • (b) if it has decided to establish a pay equity committee,

    • (i) setting out the requirements for the committee’s membership, and

    • (ii) informing its employees of their right to designate the committee members who will represent them.

Marginal note:Notice — group of employers referred to in subsection 17(1)

• 15 (1) Each employer that is in a group of employers referred to in subsection 17(1) must post a notice

  • (a) indicating that it is in a group of employers;

  • (b) setting out the group’s obligation

    • (i) to establish a pay equity plan, and

    • (ii) to make all reasonable efforts to establish a pay equity committee for that purpose;

  • (c) setting out the requirements for the committee’s membership;

  • (d) informing the employer’s non-unionized employees, if any, of their right to designate the committee members who will represent the non-unionized employees of all of the employers in the group of employers; and

  • (e) informing the employer’s unionized employees, if any, that their bargaining agent will select the committee members who will represent the employees — of all of the employers in the group of employers — who are members of any bargaining unit represented by that bargaining agent.

• Marginal note:Notice — group of employers referred to in subsection 17(2)

  (2) Each employer that is in a group of employers referred to in subsection 17(2) must post a notice

  • (a) indicating that it is in a group of employers;

  • (b) setting out the group’s obligation to establish a pay equity plan; and

  • (c) if the group has decided to establish a pay equity committee,

    • (i) setting out the requirements for the committee’s membership, and

    • (ii) informing the employer’s employees of their right to designate the committee members who will represent the employees of all of the employers in the group of employers.

Marginal note:Requirement to establish pay equity committee

• 16 (1) The following employers must, in respect of the pay equity plan that the employer is required to establish, make all reasonable efforts to establish a pay equity committee:

  • (a) an employer that is considered to have 100 or more employees for the purpose of section 6 or 7, as the case may be; or

  • (b) an employer that is considered to have 10 to 99 employees for the purpose of section 6 or 7, as the case may be, if some or all of its employees were unionized employees on the date on which the employer became subject to this Act.

• Marginal note:Voluntary establishment of pay equity committee

  (2) An employer that is considered to have 10 to 99 employees for the purpose of section 6 or 7, as the case may be, may, on its own initiative or at the request of an employee, decide to establish a pay equity committee if all of its employees were non-unionized employees on the date on which the employer became subject to this Act.

• Marginal note:Notice to Pay Equity Commissioner

  (3) An employer referred to in subsection (2) that establishes a pay equity committee must notify the Pay Equity Commissioner that it has done so.

Marginal note:Requirement to establish pay equity committee — group of employers

• 17 (1) The following groups of employers must, in respect of the pay equity plan that the group is required to establish, make all reasonable efforts to establish a pay equity committee:

  • (a) a group of employers that is considered under section 18 to have 100 or more employees; or

  • (b) a group of employers that is considered under section 18 to have 10 to 99 employees, if at least one of the employers in the group had unionized employees on the date on which it became subject to this Act.

• Marginal note:Voluntary establishment of pay equity committee

  (2) A group of employers that is considered under section 18 to have 10 to 99 employees, may, on its own initiative or at the request of an employee, decide to establish a pay equity committee if each of the employers in the group had only non-unionized employees on the date on which it became subject to this Act.

• Marginal note:Notice to Pay Equity Commissioner

  (3) A group of employers referred to in subsection (2) that establishes a pay equity committee must notify the Pay Equity Commissioner that it has done so.

Marginal note:Number of employees — group of employers

18 For the purpose of section 17,

• (a) a group of employers is considered to have 100 or more employees if the sum of the average of the number of employees of each of the employers in the group — that average, for each of those employers, being the average of the number described in paragraph 9(a) or (b) that determined the date on which the employer became subject to this Act — is 100 or more; and

• (b) a group of employers is considered to have 10 to 99 employees if the sum of the average of the number of employees of each of the employers in the group — that average, for each of those employers, being the average of the number described in paragraph 9(a) that determined the date on which the employer became subject to this Act — is at least 10 but less than 100.

Marginal note:Composition of committee

• 19 (1) A pay equity committee is to be composed of at least three members and must also meet the following requirements:

  • (a) at least two-thirds of the members must represent the employees to whom the pay equity plan relates;

  • (b) at least 50% of the members must be women;

  • (c) at least one member must be a person selected by the employer to represent it;

  • (d) if some or all of the employees to whom the pay equity plan relates are unionized employees, there must be at least the same number of members to represent those employees as there are bargaining agents, with each bargaining agent selecting at least one person to be a member and to represent employees who are members of any bargaining unit represented by that bargaining agent; and

  • (e) if some or all of the employees to whom the pay equity plan relates are non-unionized employees, at least one member must be a person selected by those employees to represent them.

• Marginal note:Non-unionized employees

  (2) Non-unionized employees must select members to represent them by a majority of votes.

• Marginal note:Committee cannot be established

  (3) If the employer is unable to establish a pay equity committee that meets the requirements set out in any of paragraphs (1)(a), (b), (d) and (e), it must apply to the Pay Equity Commissioner for authorization to establish a committee with different requirements than the ones set out in that paragraph.

Marginal note:Vote

• 20 (1) The members who represent employees have, as a group, one vote and the members who represent the employer have, as a group, one vote. A decision of a group counts as a vote only if it is unanimous. If the members who represent employees cannot, as a group, reach a unanimous decision on a matter, that group forfeits its right to vote and the vote of the group of members who represent the employer prevails.

• Marginal note:Minimum composition required for vote

  (2) The pay equity committee may hold a vote only if there is present for it

  • (a) at least one member who represents the employer;

  • (b) for each bargaining agent, if any, that selected members, at least one such member; and

  • (c) one member who represents non-unionized employees, if any.

Marginal note:Directions from employer

• 21 (1) An employer must give to any member of a pay equity committee who represents the employer sufficient direction to permit the member to perform their work as the employer’s representative on the committee.

• Marginal note:Directions from bargaining agent

  (2) A bargaining agent must give to any member of a pay equity committee who represents employees who are members of any bargaining unit represented by the bargaining agent sufficient direction to permit the member to perform their work as those employees’ representative on the committee.

Marginal note:Measures to facilitate the selection of members

• 22 (1) To facilitate the selection of employee representatives on a pay equity committee, an employer must make available, as necessary, its premises and equipment and must permit its employees to take time away from their work, as required, to participate in the selection process.

• Marginal note:Measures to support work of committee

  (2) Once the pay equity committee is established, the employer must make available, as necessary, its premises and equipment for the work of the committee and must permit employees who are members of the committee to take time away from their work, as required, to participate in training sessions and meetings of the committee and to perform their work as a member of the committee.

• Marginal note:Employee deemed at work

  (3) An employee who takes time away from their work in accordance with subsection (1) or (2) is deemed to be at work for all purposes.

Marginal note:Requirement to provide information — employer

• 23 (1) An employer must provide the pay equity committee with any information in the employer’s possession that the committee considers necessary for the establishment of the pay equity plan.

• Marginal note:Requirement to provide information — employees and bargaining agents

  (2) Every employee to whom the pay equity plan relates and, if some of those employees are unionized employees, every bargaining agent that represents those unionized employees, must provide the pay equity committee with any information within their knowledge or control that the committee considers necessary for the establishment of the pay equity plan.

Marginal note:Requirement to keep information confidential — committee members

• 24 (1) Each person who is or was a member of a pay equity committee to which information is provided in accordance with section 23 must keep confidential — except for the purpose for which it is provided — any of the information that is specified by the employer, employee or bargaining agent, as the case may be, as being confidential.

• Marginal note:Employers and bargaining agents

  (2) Each employer and each bargaining agent that receives, from a member of a pay equity committee, information that the member is required under subsection (1) to keep confidential, must also keep the information confidential.

Marginal note:Notice of establishment of plan without committee

25 If an employer, despite having made all reasonable efforts, is unable to establish a pay equity committee, the employer must apply to the Pay Equity Commissioner for authorization to establish the pay equity plan without a pay equity committee. If that authorization is granted, the employer must post a notice informing the employees to whom the pay equity plan relates that the employer will establish the pay equity plan without a pay equity committee.

Marginal note:Notice of establishment of plan without committee — group of employers

26 If a group of employers, despite having made all reasonable efforts, is unable to establish a pay equity committee, the group must apply to the Pay Equity Commissioner for authorization to establish the pay equity plan without a committee. If that authorization is granted, each employer in the group must post a notice informing its employees to whom the pay equity plan relates that the group of employers will establish the pay equity plan without a committee.

Marginal note:Committee does not meet requirement after establishment

27 If a pay equity committee established by an employer does not, at any time after it has been established, meet the requirements set out in any of paragraphs 19(1)(a), (b), (d) and (e), the employer must apply to the Pay Equity Commissioner for authorization for the continuation of the committee with different requirements than the ones set out in that paragraph.

Marginal note:Committee cannot perform work

28 If, at any time after establishing a pay equity committee, an employer is of the opinion that the committee is unable to perform its work, the employer may apply to the Pay Equity Commissioner for authorization to establish the pay equity plan without a committee. If that authorization is granted, the employer must post a notice informing the employees to whom the pay equity plan relates that the employer will establish the pay equity plan without a committee.

Marginal note:Committee cannot perform work — group of employers

29 If, at any time after establishing a pay equity committee, a group of employers is of the opinion that the committee is unable to perform its work, the group may apply to the Pay Equity Commissioner for authorization to establish the pay equity plan without a committee. If that authorization is granted, each employer in the group must post a notice informing its employees to whom the pay equity plan relates that the group of employers will establish the pay equity plan without a committee.

Marginal note:Multiple plans

• 30 (1) An employer referred to in subsection 16(1) or (3), a bargaining agent for any unionized employees of the employer or a non-unionized employee of the employer may apply to the Pay Equity Commissioner to approve the establishment of more than one pay equity plan.

• Marginal note:Multiple plans — group of employers

  (2) A group of employers referred to in subsection 17(1) or (3), a bargaining agent for any unionized employees of an employer that is in the group or a non-unionized employee of an employer that is in the group may apply to the Pay Equity Commissioner to approve the establishment of more than one pay equity plan.

• Marginal note:Application — required information

  (3) The employer, group of employers, bargaining agent or employee, as the case may be, must, in the application,

  • (a) indicate the number of pay equity plans being proposed; and

  • (b) identify the employer’s employees — or, if the employer is in a group of employers, all of the employees of the employers in the group — to whom each pay equity plan would relate.

• Marginal note:Evidence and representations

  (4) The Pay Equity Commissioner must give an opportunity to make representations, in the manner that he or she specifies, to the applicant, to the employer or group of employers, if it is not the applicant, and to any bargaining agents and non-unionized employees that are not the applicant and that the Pay Equity Commissioner considers would be affected by the application.

• Marginal note:Denial of application

  (5) The Pay Equity Commissioner must deny the application if he or she is of the opinion that, if more than one pay equity plan were to be established it would not be possible for the employer or group of employers, or a pay equity committee, as the case may be, to identify enough predominantly male job classes for a comparison of compensation to be made under section 47 in respect of each of those pay equity plans.

• Marginal note:Approval of application

  (6) If the Pay Equity Commissioner approves the application, the employer or group of employers, as the case may be, must establish, in accordance with this Act, each of the pay equity plans whose establishment is approved.

PART 2Process for Establishment of Pay Equity Plan

Purpose

Marginal note:Steps to be followed

31 The purpose of this Part is to set out the steps leading to the establishment of a pay equity plan.

Identification of Job Classes

Marginal note:Job classes

32 An employer — or, if a pay equity committee has been established, that committee — must start by identifying the job class of positions occupied or that may be occupied by employees to whom the pay equity plan relates. Subject to section 34, positions are considered to be in the same job class if

• (a) they have similar duties and responsibilities;

• (b) they require similar qualifications; and

• (c) they are part of the same compensation plan and are within the same range of salary rates.

Marginal note:One-position job classes

33 A job class may consist of only one position.

Marginal note:Job classes in core public administration

34 Positions in the core public administration that are at the same group and level comprise a single job class.

Determination of Predominantly Female and Predominantly Male Job Classes

Marginal note:Determination

35 Once an employer — or, if a pay equity committee has been established, that committee — has identified all of the job classes under section 32, it must determine which of them are predominantly female job classes and which of them are predominantly male job classes.

Marginal note:Predominantly female job classes

36 A job class is considered to be a predominantly female job class if

• (a) at least 60% of the positions in the job class are occupied by women;

• (b) historically, at least 60% of the positions in the job class were occupied by women; or

• (c) the job class is one that is commonly associated with women due to gender-based occupational stereotyping.

Marginal note:Predominantly male job classes

37 A job class is considered to be a predominantly male job class if

• (a) at least 60% of the positions in the job class are occupied by men;

• (b) historically, at least 60% of the positions in the job class were occupied by men; or

• (c) the job class is one that is commonly associated with men due to gender-based occupational stereotyping.

Marginal note:Group of job classes

• 38 (1) An employer — or, if a pay equity committee has been established, that committee — may treat a group of job classes as a single predominantly female job class if at least 60% of the positions in the group are occupied by women.

• Marginal note:Interpretation

  (2) If an employer or pay equity committee, as the case may be, treats a group of job classes as a single predominantly female job class, this Act applies in respect of the group of job classes as if it were a single predominantly female job class, unless the context otherwise requires.

Marginal note:Notice to Pay Equity Commissioner

39 If an employer — or, if a pay equity committee has been established, that committee — determines under section 35 that there is at least one predominantly female job class but that there are no predominantly male job classes, and no regulations have been made under paragraph 181(1)(c), the employer must notify the Pay Equity Commissioner of that determination.

Marginal note:Application of regulations

40 If regulations have been made under paragraph 181(1)(c), those regulations apply in place of sections 41 to 50.

Determination of Value of Work

Marginal note:Determination

• 41 (1) If an employer — or, if a pay equity committee has been established, that committee — determines under section 35 that there is at least one predominantly female job class and at least one predominantly male job class, the employer or committee, as the case may be, must determine the value of the work performed in each of the predominantly female and predominantly male job classes determined under that section.

• Marginal note:Value already determined

  (2) For greater certainty, an employer referred to in any of paragraphs 3(2)(a) to (d) or a pay equity committee established by such an employer, as the case may be, may determine that the value of the work performed in each of the predominantly female and predominantly male job classes determined under section 35 is the value that has already been determined by means of a method that complies with the requirements set out in sections 42 and 43 and any other requirements that are prescribed by regulation.

• Marginal note:Group of job classes

  (3) If an employer or pay equity committee, as the case may be, treats a group of job classes as a predominantly female job class in accordance with section 38, the value of the work performed in that job class is considered to be the value of the work performed in the individual predominantly female job class within the group that has the greatest number of employees.

Marginal note:Criterion

42 The criterion to be applied in determining the value of the work performed is the composite of the skill required to perform the work, the effort required to perform the work, the responsibility required in the performance of the work and the conditions under which the work is performed.

Marginal note:Method

43 In addition, an employer — or, if a pay equity committee has been established, that committee — must, to determine the value of the work performed, use a method that

• (a) does not discriminate on the basis of gender; and

• (b) makes it possible to determine the relative value of the work performed in all of the predominantly female and predominantly male job classes determined under section 35.

Calculation of Compensation

Marginal note:Calculation

• 44 (1) An employer — or, if a pay equity committee has been established, that committee — must calculate the compensation, expressed in dollars per hour, associated with each job class for which it has determined, under section 41, the value of the work performed.

• Marginal note:Group of job classes

  (2) If an employer or pay equity committee, as the case may be, treats a group of job classes as a predominantly female job class in accordance with section 38, the compensation associated with that job class is considered to be the compensation associated with the individual predominantly female job class within the group that has the greatest number of employees.

• Marginal note:Salary

  (3) For the purpose of determining salary in the calculation of the compensation associated with a job class, the salary at the highest rate in the range of salary rates for positions in the job class is to be used.

Marginal note:Exclusions from compensation

45 An employer — or, if a pay equity committee has been established, that committee — may exclude from the calculation of compensation, with respect to each job class in respect of which compensation is required to be calculated, any form of compensation that is equally available, and provided without discrimination on the basis of gender, in respect of all of those job classes.

Marginal note:Differences in compensation excluded

46 An employer — or, if a pay equity committee has been established, that committee — must exclude from the calculation of compensation associated with a job class any differences in compensation that either increase or decrease compensation in any or all positions in that job class as compared with the compensation that would otherwise be associated with the position, if the differences are based on any one or more of the following factors and those factors have been designed and are applied so as not to discriminate on the basis of gender:

• (a) the existence of a system of compensation that is based on seniority or length of service;

• (b) the practice of temporarily maintaining an employee’s compensation following their reclassification or demotion to a position that has a lower rate of compensation until the rate of compensation for the position is equivalent to or greater than the rate of compensation payable to the employee immediately before the reclassification or demotion;

• (c) a shortage of skilled workers that causes an employer to temporarily increase compensation due to its difficulty in recruiting or retaining employees with the requisite skills for positions in a job class;

• (d) the geographic area in which an employee works;

• (e) the fact that an employee is in an employee development or training program and receives compensation at a rate different than that of an employee doing the same work in a position outside the program;

• (f) the non-receipt of compensation — in the form of benefits that have a monetary value — due to the temporary, casual or seasonal nature of a position;

• (g) the existence of a merit-based compensation plan that is based on a system of formal performance ratings and that has been brought to the attention of the employees; or

• (h) the provision of compensation for extra-duty services, including compensation for overtime, shift work, being on call, being called back to work and working or travelling on a day that is not a working day.

Comparison of Compensation

Marginal note:Comparison

47 An employer — or, if a pay equity committee has been established, that committee — that has calculated under section 44 the compensation associated with each job class must, using the compensation so calculated, compare, in accordance with sections 48 to 50, the compensation associated with the predominantly female job classes with the compensation associated with the predominantly male job classes, for the purpose of determining whether there is any difference in compensation between those job classes.

Marginal note:Compensation comparison methods

• 48 (1) The comparison of compensation must be made in accordance with the equal average method set out in section 49 or the equal line method set out in section 50.

• Marginal note:Other methods

  (2) Despite subsection (1),

  • (a) if an employer determines that neither of the methods referred to in that subsection can be used, the employer must

    • (i) apply to the Pay Equity Commissioner for authorization to use a method for the comparison of compensation that is prescribed by regulation or, if the regulations do not prescribe a method or the employer is of the opinion that the prescribed method cannot be used, a method that it proposes, and

    • (ii) use the method for the comparison of compensation that the Pay Equity Commissioner authorizes; and

  • (b) if a pay equity committee determines that neither of the methods referred to in that subsection can be used, the committee must use a method for the comparison of compensation that is prescribed by regulation or, if the regulations do not prescribe a method or the committee is of the opinion that the prescribed method cannot be used, a method that it considers appropriate.

Marginal note:Equal average method

• 49 (1) An employer or pay equity committee, as the case may be, that uses the equal average method of comparison of compensation must apply the following rules:

  • (a) the average compensation associated with the predominantly female job classes within a band — or, if there is only one such job class within a band, the compensation associated with that job class — is to be compared to

    • (i) if there is more than one predominantly male job class within the band, the average compensation associated with the predominantly male job classes within the band,

    • (ii) if there is only one predominantly male job class within the band, the compensation associated with that job class, or

    • (iii) if there are no predominantly male job classes within the band, the compensation calculated under paragraph (b);

  • (b) the compensation for the purpose of subparagraph (a)(iii) is the following:

    • (i) the amount determined by the formula

      (A × B)/C

      where

      A

      is the average compensation associated with the predominantly male job classes — or if there is only one such job class, the compensation associated with that job class — that are within the band that is closest to the band within which the predominantly female job class or classes are located,

      B

      is the average value of the work performed in the predominantly female job classes within the band or, if there is only one such job class, the value of the work performed in that job class, and

      C

      is the average value of the work performed in the predominantly male job classes within the band referred to in the description of A or, if there is only one such job class, the value of the work performed in that job class, or

    • (ii) despite subparagraph (i), if there is at least one predominantly male job class within each of two bands that are equidistant from the band within which the predominantly female job class or classes are located, and there is no other band containing at least one predominantly male job class that is closer to that band, the amount determined by the formula

      (A + B)/2

      where

      A

      is the average compensation associated with the predominantly male job classes within one of the two bands or, if there is only one such job class, the compensation associated with that job class, and

      B

      is the average compensation associated with the predominantly male job classes within the other band or, if there is only one such job class, the compensation associated with that job class;

  • (c) the compensation associated with a predominantly female job class within a band is to be increased only if

    • (i) that compensation is lower than the compensation or average compensation referred to subparagraph (a)(i), (ii) or (iii), as the case may be, and

    • (ii) the average compensation associated with the predominantly female job classes within the band — or, if there is only one such job class, the compensation associated with that job class — is lower than the compensation or average compensation referred to subparagraph (a)(i), (ii) or (iii), as the case may be;

  • (d) if the compensation associated with a predominantly female job class within a band is to be increased, the increase is to be determined by multiplying the factor calculated in accordance with the regulations by an amount equal to the difference between the compensation associated with the job class and the compensation or average compensation referred to subparagraph (a)(i), (ii) or (iii), as the case may be; and

  • (e) an increase in compensation associated with the predominantly female job class or classes within a band is to be made in such a way that, after the increase, the average compensation associated with the predominantly female job classes within the band — or, if there is only one such job class, the compensation associated with that job class — is equal to the compensation or average compensation referred to subparagraph (a)(i), (ii) or (iii), as the case may be.

• Marginal note:Definition of band

  (2) In this section, band means a range, as determined by an employer or pay equity committee, as the case may be, of values of work that the employer or committee considers comparable.

Marginal note:Equal line method

• 50 (1) An employer or pay equity committee, as the case may be, that uses the equal line method of comparison of compensation must apply the following rules:

  • (a) a female regression line must be established for the predominantly female job classes and a male regression line must be established for the predominantly male job classes;

  • (b) the compensation associated with a predominantly female job class is to be increased only if

    • (i) the female regression line is entirely below the male regression line, and

    • (ii) the predominantly female job class is located below the male regression line;

  • (c) if the compensation associated with a predominantly female job class is to be increased, the increase is to be determined by multiplying the factor calculated in accordance with the regulations by an amount equal to the difference between the compensation associated with the predominantly female job class and the compensation associated with a predominantly male job class, were such a job class located on the male regression line, in which the value of the work performed is equal to that of the predominantly female job class; and

  • (d) an increase in compensation associated with the predominantly female job classes is to be made in such a way that, after the increase, the female regression line coincides with the male regression line.

• Marginal note:Crossed regression lines

  (2) Despite paragraphs (1)(b) to (d), if the female regression line crosses the male regression line, an employer or pay equity committee, as the case may be, must apply the rules for the comparison of compensation that are prescribed by regulation.

Contents and Posting

Marginal note:Contents of plan

51 A pay equity plan must

• (a) indicate the number of pay equity plans required to be established in respect of the employer’s employees or, if the employer is in a group of employers, in respect of the employees of the employers in the group;

• (b) indicate the number of employees that the employer — or, in the case of a group of employers, each employer in the group — was considered to have for the purpose of determining whether a pay equity committee was required to be established in respect of the pay equity plan;

• (c) indicate whether a pay equity committee has been established and, if so, whether it meets the requirements set out in subsection 19(1) or, if not, whether the employer or group of employers, as the case may be, obtained the authorization of the Pay Equity Commissioner to establish a pay equity committee with different requirements;

• (d) set out a list of the job classes that have been identified to be job classes of positions occupied or that may be occupied by employees to whom the pay equity plan relates;

• (e) indicate whether any job classes referred to in paragraph (d) were determined to be predominantly female job classes and, if so, set out a list of those job classes;

• (f) indicate whether any job classes referred to in paragraph (d) were determined to be predominantly male job classes and, if so, set out a list of those job classes;

• (g) indicate whether a group of job classes has been treated as a single predominantly female job class and, if so, set out a list of the job classes referred to in paragraph (d) that are included in the group of job classes and identify the individual predominantly female job class within the group that was used for the purpose of subsections 41(3) and 44(2);

• (h) if there was a determination of the value of work performed in certain job classes, then, for each of those job classes, describe the method of valuation that was used and set out the results of the valuation;

• (i) indicate any job classes in which differences in compensation have been excluded from the calculation of compensation under section 46 and give the reasons why;

• (j) if a comparison of compensation was made, indicate which of the methods referred to in subsection 48(1) was used to make the comparison — or, if neither was used, explain why not and describe the method that was used — and set out the results of the comparison;

• (k) identify each predominantly female job class that requires an increase in compensation under this Act and describe how the employer — or, in the case of a group of employers, each employer in the group — will increase the compensation in that job class and the amount, in dollars per hour, of the increase;

• (l) set out the date on which the increase in compensation, or the first increase, as the case may be, is payable under this Act; and

• (m) provide information on the dispute resolution procedures that are available under Part 8 to employees to whom the pay equity plan relates, including any timelines.

Marginal note:Draft pay equity plan and notice

52 Once an employer — or, if a pay equity committee has been established, that committee — has prepared a draft of the pay equity plan, the employer must post the draft as well as a notice informing employees to whom it relates of their right to provide the employer or committee, as the case may be, with comments on the draft and the time within which and the manner in which they may exercise that right.

Marginal note:Draft pay equity plan and notice — group of employers

• 53 (1) Once a group of employers — or, if a pay equity committee has been established, that committee — has prepared a draft of the pay equity plan, each employer in the group must post the draft as well as a notice informing the employer’s employees to whom it relates of their right to provide that group of employers or that committee, as the case may be, with comments on the draft and the time within which and the manner in which they may exercise that right.

• Marginal note:Same-day posting

  (2) Employers that are in a group of employers must all post the draft pay equity plan on the same day.

Marginal note:Written comments

• 54 (1) Employees to whom the draft pay equity plan relates have 60 days following the day on which it is posted to provide the employer — or, if a pay equity committee has been established, that committee — with written comments on it.

• Marginal note:Consideration of comments

  (2) The employer or pay equity committee, as the case may be, must consider any comments that have been provided under subsection (1) when preparing the final version of the pay equity plan.

Marginal note:Final version — three-year maximum

• 55 (1) An employer — or, in the case of a group of employers, each employer in the group — must post the final version of the pay equity plan no later than the third anniversary of the date on which the employer or the group of employers, as the case may be, became subject to this Act.

• Marginal note:Same-day posting

  (2) Employers that are in a group of employers must all post the final version of the pay equity plan on the same day.

Marginal note:Notice of increases

• 56 (1) An employer must post, before the date on which an increase in compensation — and any lump sum — is payable under section 61 or 62, a notice indicating the following:

  • (a) if the pay equity plan was posted in accordance with section 55 or paragraph 94(1)(b),

    • (i) the date on which any increase in compensation is payable under subsection 61(1), and

    • (ii) if the employer has chosen to phase in the increase in accordance with subsection 61(2), the dates on which each increase will be made and the percentage of the increase referred to in paragraph 51(k) that each increase represents; and

  • (b) if the pay equity plan was posted in accordance with subsection 57(2),

    • (i) the date on which any increase in compensation under subsection 62(1) and any lump sum under subsection 62(2) or (3) is payable, and

    • (ii) if the employer has chosen to phase in the increase in accordance with subsection 62(4), the dates on which each increase will be made and the percentage of the increase referred to in paragraph 51(k) that each increase represents.

• Marginal note:Notice for longer phase-in period

  (2) If an employer is authorized by the Pay Equity Commissioner to phase in the increase in compensation over a longer phase-in period than the one set out in paragraph 61(2)(c) or (d) or 62(4)(e) or (f), as the case may be, the employer must post, as soon as feasible after obtaining the authorization, a notice indicating the new dates on which the increases will be made and the percentage of the increase referred to in paragraph 51(k) that each increase represents.

Marginal note:Extension of time limit for posting

• 57 (1) An employer may apply to the Pay Equity Commissioner for an extension of the period set out in subsection 55(1) or paragraph 94(1)(b), as the case may be, for the posting of a final pay equity plan.

• Marginal note:Authorization of Pay Equity Commissioner

  (2) If the Pay Equity Commissioner authorizes an extension, the employer — or, in the case of a group of employers, each employer in the group — must

  • (a) post, as soon as feasible after obtaining the authorization, a notice indicating the date on which the extended period ends; and

  • (b) despite subsection 55(1) and paragraph 94(1)(b), post the final pay equity plan within the extended period.

• Marginal note:Same-day posting

  (3) Employers that are in a group of employers must all post the final version of the pay equity plan on the same day.

Marginal note:Establishment of pay equity plan

58 An employer is deemed to have established a pay equity plan on the day on which it posts the pay equity plan in accordance with subsection 55(1) or 57(2) or paragraph 94(1)(b), as the case may be.

Marginal note:Establishment of pay equity plan — group of employers

59 A group of employers is deemed to have established a pay equity plan on the day on which each employer in the group posts the pay equity plan in accordance with subsections 55(1) and (2) or 57(2) and (3), as the case may be.

Increases in Compensation

Marginal note:Obligation to increase compensation

60 If a pay equity plan posted by an employer in accordance with section 55, subsection 57(2) or paragraph 94(1)(b), as the case may be, discloses differences in compensation between predominantly female job classes and predominantly male job classes or, if there are no predominantly male job classes, differences in compensation that are determined in accordance with regulations made under paragraph 181(1)(c), the employer must increase — in accordance with the provisions of the pay equity plan that meet the requirements set out in paragraph 51(k) — the compensation that is payable to its employees who occupy positions in the predominantly female job classes for which an increase in compensation is required to be made under that pay equity plan.

Marginal note:Date payable — plan posted under section 55 or paragraph 94(1)(b)

• 61 (1) In the case of an employer that posted a pay equity plan in accordance with section 55 or paragraph 94(1)(b), as the case may be, the increase in compensation required to be made under section 60 is payable,

  • (a) subject to paragraph (b),

    • (i) if the pay equity plan was posted in accordance with subsection 55(1), on the day after the third anniversary of the date on which the employer became subject to this Act, or

    • (ii) if the pay equity plan was posted in accordance with paragraph 94(1)(b), on the day after the day that is 18 months after the date on which the employer became subject to this Act; or

  • (b) in the case of an employer that is in a group of employers, on the day after the third anniversary of the date on which the group of employers became subject to this Act.

• Marginal note:Phase in of increase

  (2) Despite subsection (1), if an employer posted a pay equity plan in accordance with section 55 or paragraph 94(1)(b), as the case may be — or posted, on the same day, more than one pay equity plan in accordance with that section or paragraph — and if the total amount, in dollars, of the increase in compensation required to be made by the employer under section 60 in respect of all employees to whom the pay equity plan or plans relate is, for the year in which the increase is required to be made under subsection (1), more than 1% of the employer’s payroll for the year that is immediately before that year, the employer may choose to phase in the increase in respect of that plan or those plans, in which case

  • (a) the employer must establish, in accordance with the following, a schedule of increases for the phase-in period:

    • (i) the increases

      • (A) are to begin on the day after the third anniversary of the date referred to in subparagraph (1)(a)(i) or paragraph (1)(b), as the case may be, and end on the day on which the phase-in period ends, if the pay equity plan or plans were posted in accordance with section 55, or

      • (B) are to begin on the day after the day that is 18 months after the date on which the employer became subject to this Act and end on the day on which the phase-in period ends, if the pay equity plan or plans were posted in accordance with paragraph 94(1)(b),

    • (ii) each increase is to be made on the anniversary date of the previous increase, and

    • (iii) for each year in which an increase is to be made, the total amount, in dollars, of the increase in compensation required to be made by the employer in respect of all employees to whom the pay equity plan or plans relate is to be equal to or more than 1% of the employer’s payroll for the year that is immediately before the year in which the increase is required to be made under subsection (1), except for the final increase, which is, in respect of all employees, to be in an amount that is sufficient to eliminate the differences in compensation;

  • (b) the employer must make the increases in accordance with the schedule;

  • (c) if the employer is considered to have 100 or more employees for the purpose of section 6 or 7, as the case may be, it must make the final increase no later than

    • (i) the day after the sixth anniversary of the date referred to in subparagraph (1)(a)(i) or paragraph (1)(b), as the case may be, if the pay equity plan or plans were posted in accordance with section 55, or

    • (ii) the day after the day that is 54 months after the date on which the employer became subject to this Act, if the pay equity plan or plans were posted in accordance with paragraph 94(1)(b); and

  • (d) if the employer is considered to have 10 to 99 employees for the purpose of section 6 or 7, as the case may be, it must make the final increase no later than

    • (i) the day after the eighth anniversary of the date referred to in subparagraph (1)(a)(i) or paragraph (1)(b), as the case may be, if the pay equity plan or plans were posted in accordance with section 55, or

    • (ii) the day after the day that is 78 months after the date on which the employer became subject to this Act, if the pay equity plan or plans were posted in accordance with paragraph 94(1)(b).

• Marginal note:Definition of year

  (3) For the purpose of subsection (2), year means,

  • (a) in the case of an employer referred to in any of paragraphs 3(2)(a) to (d), its fiscal year; and

  • (b) in the case of an employer referred to in any of paragraphs 3(2)(e) to (i), the calendar year.

Marginal note:Date payable — plan posted under subsection 57(2)

• 62 (1) In the case of an employer that posted a pay equity plan in accordance with subsection 57(2), the increase in compensation required to be made under section 60 is payable on the day after the day on which the employer posted the pay equity plan in accordance with subsection 57(2).

• Marginal note:Lump sum

  (2) In the case of an employer that, but for the authorization referred to in subsection 57(2), would have been required to post a pay equity plan under section 55, the employer is, on the day on which compensation is required to be increased under subsection (1), also required to pay to each of its employees referred to in section 60, as a lump sum — for the period beginning on the day after the third anniversary of the date referred to in subparagraph 61(1)(a)(i) or paragraph 61(1)(b), as the case may be, and ending on the day after the day on which the employer posted the pay equity plan in accordance with subsection 57(2), or for any shorter period within that period during which the employee occupied a position referred to in section 60 — an amount in dollars equal to the increase in compensation that would have been payable to the employee had that increase been made starting on the day after the third anniversary of the date referred to in subparagraph 61(1)(a)(i) or paragraph 61(1)(b).

• Marginal note:Lump sum — person that carried out or operated provincial business

  (3) In the case of an employer that, but for the authorization referred to in subsection 57(2), would have been required to post a pay equity plan in accordance with paragraph 94(1)(b), the employer is, on the day on which compensation is required to be increased under subsection (1), also required to pay to each of its employees referred to in section 60, as a lump sum — for the period beginning on the day after the day that is 18 months after the date on which the employer became subject to this Act and ending on the day after the day on which the employer posted the pay equity plan in accordance with subsection 57(2), or for any shorter period within that period during which the employee occupied a position referred to in section 60 — an amount in dollars equal to the increase in compensation that would have been payable to the employee had the increase been made starting on the day after the day that is 18 months after the date on which the employer became subject to this Act.

• Marginal note:Phase in of increase

  (4) Despite subsection (1), if an employer posted a pay equity plan in accordance with subsection 57(2) — or posted, on the same day, more than one pay equity plan in accordance with that subsection — and if the total amount, in dollars, of the increase in compensation required to be made by the employer under section 60 in respect of all employees to whom the pay equity plan or plans relate is, for the year in which the increase is required to be made under subsection (1), more than 1% of the employer’s payroll for the year that is immediately before that year, the employer may choose to phase in the increase in respect of that plan or those plans, in which case

  • (a) the phase-in period is deemed to have started

    • (i) on the day after the third anniversary of the date referred to in subparagraph 61(1)(a)(i) or paragraph 61(1)(b), as the case may be, if the pay equity plan or plans were posted in accordance with section 55, or

    • (ii) on the day after the day that is 18 months after the date on which the employer became subject to this Act, if the pay equity plan or plans were posted in accordance with paragraph 94(1)(b);

  • (b) the employer must establish, in accordance with the following, a schedule of increases for the phase-in period:

    • (i) the increases are to begin on the day on which the phase-in period is deemed to have started under paragraph (a) and end on the day on which the phase-in period ends,

    • (ii) each increase is to be made on the anniversary date of the previous increase, and

    • (iii) for each year in which an increase is to be made, the total amount, in dollars, of the increase in compensation required to be made by the employer in respect of all employees to whom the pay equity plan or plans relate is to be equal to or more than 1% of the employer’s payroll for the year that is immediately before the year in which the increase is required to be made under subsection (1), except for the final increase, which is, in respect of all employees, to be in an amount that is sufficient to eliminate the differences in compensation;

  • (c) on the day after the day on which the employer posts the pay equity plan or plans in accordance with subsection 57(2), the employer must make the increase indicated in the schedule that corresponds to that day, and then make any subsequent increases in accordance with the schedule;

  • (d) the employer must

    • (i) determine, for each employee, for the period beginning on the day on which the phase-in period is deemed to have started under paragraph (a) and ending on the day on which the employer posts the pay equity plan or plans in accordance with subsection 57(2), or for any shorter period within that period during which the employee occupied a position referred to in section 60, an amount in dollars equal to the amount of the increase or increases that would have been payable to the employee had the increase or increases been made, in accordance with the schedule, during that period, and

    • (ii) pay to the employee, as a lump sum, the amount so determined, on the day after the day on which the employer posts the pay equity plan or plans in accordance with subsection 57(2);

  • (e) if the employer is considered to have 100 or more employees for the purpose of section 6 or 7, as the case may be, it must make the final increase no later than

    • (i) subject to subparagraph (ii), the day after the sixth anniversary of the date referred to in subparagraph 61(1)(a)(i) or paragraph 61(1)(b), as the case may be, or

    • (ii) in the case of an employer that, but for the authorization referred to in subsection 57(2), would have been required to post the pay equity plan or plans in accordance with paragraph 94(1)(b), the day after the day that is 54 months after the date on which the employer became subject to this Act; and

  • (f) if the employer is considered to have 10 to 99 employees for the purpose of section 6 or 7, as the case may be, it must make the final increase no later than

    • (i) subject to subparagraph (ii), the day after the eighth anniversary of the date referred to in subparagraph 61(1)(a)(i) or paragraph 61(1)(b), as the case may be, or

    • (ii) in the case of an employer that, but for the authorization referred to in subsection 57(2), would have been required to post the pay equity plan or plans in accordance with paragraph 94(1)(b), the day after the day that is 78 months after the date on which the employer became subject to this Act.

• Marginal note:Interest

  (5) An employer that is required to pay a lump sum to an employee under subsection (2) or (3) or subparagraph (4)(d)(ii) must also

  • (a) in the case of a lump sum paid under subsection (2) or (3), pay interest on the amount of each increase that the employee would have received at each payday within the period for which the lump sum is payable had the employer posted the pay equity plan in accordance with section 55 or paragraph 94(1)(b), as the case may be, and had not phased in the increase; and

  • (b) in the case of a lump sum paid under subparagraph (4)(d)(ii), pay interest on the amount of each increase that the employee would have received — at each payday within the period for which the lump sum is payable — based on the schedule established in accordance with subsection (4).

  The interest is to be calculated and compounded daily on the amount, at the rate that is prescribed by regulation or calculated in a manner that is prescribed by regulation, for the period beginning on the day on which the amount would have been required to have been paid and ending on the day on which it is paid.

• Marginal note:Interest rate if none prescribed

  (6) If no regulations are made for the purpose of subsection (5), the rate of interest is the rate per annum that is the aggregate of 2% per annum and the bank rate in effect on the day in respect of which the interest is calculated.

• Marginal note:Former employees

  (7) The requirement under this section to pay a lump sum and interest to employees also applies to former employees who occupied a position referred to in section 60 during the period described in subsection (2) or (3) or paragraph 4(d), as the case may be.

• Marginal note:Definition of year

  (8) For the purpose of subsection (4), year means,

  • (a) in the case of an employer referred to in any of paragraphs 3(2)(a) to (d), its fiscal year; and

  • (b) in the case of an employer referred to in any of paragraphs 3(2)(e) to (i), the calendar year.

Marginal note:Longer phase-in period

• 63 (1) An employer may apply to the Pay Equity Commissioner for authorization to phase in increases in compensation that are required to be made under a pay equity plan over a longer phase-in period than the one set out in paragraph 61(2)(c) or (d) or 62(4)(e) or (f).

• Marginal note:Authorization of Pay Equity Commissioner

  (2) If the Pay Equity Commissioner authorizes a longer phase-in period, the employer must make the increases in compensation in accordance with the authorization.

PART 3Pay Equity Maintenance Review

Updated Pay Equity Plan

Marginal note:Requirement to update plan

64 An employer that has established a pay equity plan must update the version of the pay equity plan most recently posted in accordance with section 55, subsection 57(2), section 83, subsection 85(2) or paragraph 94(1)(b), as the case may be, in accordance with this Act.

Marginal note:Notice — employers referred to in subsection 67(1)

• 65 (1) An employer referred to in subsection 67(1) must post a notice

  • (a) setting out its obligation

    • (i) to update the most recent version of the pay equity plan identified in the notice, and

    • (ii) to make all reasonable efforts to establish a pay equity committee for that purpose;

  • (b) setting out the requirements for the committee’s membership;

  • (c) informing its non-unionized employees, if any, of their right to designate the committee members who will represent them; and

  • (d) informing its unionized employees, if any, that their bargaining agent will select the committee members who will represent the employees who are members of any bargaining unit represented by that bargaining agent.

• Marginal note:Notice — employers referred to in subsection 67(2)

  (2) An employer referred to in subsection 67(2) must post a notice

  • (a) setting out its obligation to update the most recent version of the pay equity plan identified in the notice; and

  • (b) if it has decided to establish a pay equity committee,

    • (i) setting out the requirements for the committee’s membership, and

    • (ii) informing its employees of their right to designate the committee members who will represent them.

Marginal note:Notice — group of employers referred to in subsection 68(1)

• 66 (1) Each employer that is in a group of employers referred to in subsection 68(1) must post a notice

  • (a) indicating that it is in a group of employers;

  • (b) setting out the group’s obligation

    • (i) to update the most recent version of the pay equity plan identified in the notice, and

    • (ii) to make all reasonable efforts to establish a pay equity committee for that purpose;

  • (c) setting out the requirements for the committee’s membership;

  • (d) informing the employer’s non-unionized employees, if any, of their right to designate the committee members who will represent the non-unionized employees of all of the employers in the group of employers; and

  • (e) informing the employer’s unionized employees, if any, that their bargaining agent will select the committee members who will represent the employees — of all of the employers in the group of employers — who are members of any bargaining unit represented by that bargaining agent.

• Marginal note:Notice — group of employers referred to in subsection 68(2)

  (2) Each employer that is in a group of employers referred to in subsection 68(2) must post a notice

  • (a) indicating that it is in a group of employers;

  • (b) setting out the group’s obligation to update the most recent version of the pay equity plan identified in the notice; and

  • (c) if the group has decided to establish a pay equity committee,

    • (i) setting out the requirements for the committee’s membership, and

    • (ii) informing the employer’s employees of their right to designate the committee members who will represent the employees of all of the employers in the group of employers.

• Marginal note:Same-day posting

  (3) Employers that are in a group of employers must all post the notice on the same day.

Marginal note:Requirement to establish pay equity committee

• 67 (1) The following employers must, in respect of a pay equity plan that the employer is required to update, make all reasonable efforts to establish a pay equity committee:

  • (a) an employer referred to in any of paragraphs 3(2)(a) to (d) or (2)(e) to (i) that is considered under paragraph 69(a) or 70(a) to have 100 or more employees; or

  • (b) an employer referred to in any of paragraphs 3(2)(a) to (d) or (2)(e) to (i) that is considered under paragraph 69(b) or 70(b) to have less than 100 employees, if some or all of its employees are unionized employees on the day on which the employer posts the notice under subsection 65(1) in respect of the pay equity plan.

• Marginal note:Voluntary establishment of pay equity committee

  (2) An employer referred to in any of paragraphs 3(2)(a) to (d) or (2)(e) to (i) that is considered under paragraph 69(b) or 70(b) to have less than 100 employees may, on its own initiative or at the request of an employee, decide to establish a pay equity committee if it has all non-unionized employees on the day on which it posts the notice under subsection 65(1) in respect of the pay equity plan that it is required to update.

• Marginal note:Notice to Pay Equity Commissioner

  (3) An employer referred in subsection (2) that establishes a pay equity committee must notify the Pay Equity Commissioner that it has done so.

• Marginal note:Composition of committee

  (4) A pay equity committee must meet the requirements set out in subsection 19(1).

• Marginal note:Non-unionized employees

  (5) Non-unionized employees must select members to represent them by a majority of votes.

• Marginal note:Committee cannot be established

  (6) If an employer is unable to establish a pay equity committee that meets the requirements set out in any of paragraphs 19(1)(a), (b), (d) and (e), it must apply to the Pay Equity Commissioner for authorization to establish a pay equity committee with different requirements than the ones set out in that paragraph.

Marginal note:Requirement to establish pay equity committee — group of employers

• 68 (1) The following groups of employers must, in respect of a pay equity plan that the group is required to update, make all reasonable efforts to establish a pay equity committee:

  • (a) a group of employers that is considered under section 71 to have 100 or more employees; or

  • (b) a group of employers that is considered under section 71 to have less than 100 employees, if at least one of the employers in the group has unionized employees on the day on which the notice is posted in accordance with subsection 66(1) in respect of the pay equity plan.

• Marginal note:Voluntary establishment of pay equity committee

  (2) A group of employers that is considered under section 71 to have less than 100 employees may, on its own initiative or at the request of an employee, decide to establish a pay equity committee if each of the employers in the group had all non-unionized employees on the day on which the notice is posted in accordance with subsection 66(1) in respect of the pay equity plan that the group is required to update.

• Marginal note:Notice to Pay Equity Commissioner

  (3) A group of employers referred to in subsection (2) that establishes a pay equity committee must notify the Pay Equity Commissioner that it has done so.

• Marginal note:Composition of committee

  (4) A pay equity committee must meet the requirements set out in subsection 19(1).

• Marginal note:Non-unionized employees

  (5) Non-unionized employees must select members to represent them by a majority of votes.

• Marginal note:Committee cannot be established

  (6) If a group of employers is unable to establish a pay equity committee that meets the requirements set out in any of paragraphs 19(1)(a), (b), (d) and (e), it must apply to the Pay Equity Commissioner for authorization to establish a pay equity committee with different requirements than the ones set out in that paragraph.

Marginal note:Determination of number of employees — public sector

69 For the purpose of section 67,

• (a) an employer referred to in any of paragraphs 3(2)(a) to (d) is considered to have 100 or more employees if the average of the number of the employer’s employees — in the fiscal year immediately before the fiscal year in which the employer posts the notice in accordance with subsection 65(1) in respect of the pay equity plan that the employer is required to update — is 100 or more; or

• (b) an employer referred to in any of paragraphs 3(2)(a) to (d) is considered to have less than 100 employees if the average of the number of the employer’s employees — in the fiscal year immediately before the fiscal year in which the employer posts the notice in accordance with subsection 65(1) or (2), as the case may be, in respect of the pay equity plan that the employer is required to update — is less than 100.

Marginal note:Determination of number of employees — private sector and territorial governments

70 For the purpose of section 67,

• (a) an employer referred to in any of paragraphs 3(2)(e) to (i) is considered to have 100 or more employees if the average of the number of the employer’s employees — in the calendar year immediately before the calendar year in which the employer posts the notice in accordance with subsection 65(1) in respect of the pay equity plan that the employer is required to update — is 100 or more; or

• (b) an employer referred to in any of paragraphs 3(2)(e) to (i) is considered to have less than 100 employees if the average of the number of the employer’s employees — in the calendar year immediately before the calendar year in which the employer posts the notice in accordance with subsection 65(1) or (2), as the case may be, in respect of the pay equity plan that the employer is required to update — is less than 100.

Marginal note:Determination of number of employees — group of employers

71 For the purpose of section 68,

• (a) a group of employers is considered to have 100 or more employees if the sum of the average of the number of employees of each of the employers in the group — in the calendar year immediately before the calendar year in which the notice is posted in accordance with subsection 66(1) in respect of the pay equity plan that the group is required to update — is 100 or more; or

• (b) a group of employers is considered to have less than 100 employees if the sum of the average of the number of employees of each of the employers in the group — in the calendar year immediately before the calendar year in which the notice is posted in accordance with subsection 66(1) or (2), as the case may be, in respect of the pay equity plan that the group is required to update — is less than 100.

Marginal note:Application of sections 20 to 24

72 Sections 20 to 24 apply in respect of a pay equity committee established under this Part, except that “establishment” is to be read as “updating”.

Marginal note:Notice of update of plan without committee

73 If an employer, despite having made all reasonable efforts, is unable to establish a pay equity committee in respect of a pay equity plan that it is required to update, the employer must apply to the Pay Equity Commissioner for authorization to update the pay equity plan without a committee. If that authorization is granted, the employer must post a notice informing the employees to whom the pay equity plan relates that the employer will update the pay equity plan without a committee.

Marginal note:Notice of update of plan without committee — group of employers

74 If a group of employers, despite having made all reasonable efforts, is unable to establish a pay equity committee in respect of a pay equity plan that it is required to update, the group must apply to the Pay Equity Commissioner for authorization to update the pay equity plan without a committee. If that authorization is granted, each employer in the group must post a notice informing its employees to whom the pay equity plan relates that the group of employers will update the pay equity plan without a committee.

Marginal note:Committee does not meet requirement after establishment

75 If a pay equity committee established by an employer does not, at any time after it has been established, meet the requirements set out in any of paragraphs 19(1)(a), (b), (d) and (e), the employer must apply to the Pay Equity Commissioner for authorization for the continuation of the committee with different requirements than the ones set out in that paragraph.

Marginal note:Committee cannot perform work

76 If, at any time after establishing a pay equity committee, an employer is of the opinion that the committee is unable to perform its work, the employer may apply to the Pay Equity Commissioner for authorization to update the pay equity plan without a committee. If that authorization is granted, the employer must post a notice informing the employees to whom the pay equity plan relates that the employer will update the pay equity plan without a committee.

Marginal note:Committee cannot perform work — group of employers

77 If, at any time after establishing a pay equity committee, a group of employers is of the opinion that the committee is unable to perform its work, it may apply to the Pay Equity Commissioner for authorization to update the pay equity plan without a committee. If that authorization is granted, each employer in the group must post a notice informing its employees to whom the pay equity plan relates that the group of employers will update the pay equity plan without a committee.

Process for Updating Pay Equity Plan

Marginal note:Identification of new differences in compensation

• 78 (1) An employer — or, if a pay equity committee has been established, that committee — must — by applying the rules, criteria and factors, as adapted by regulation, that are set out in sections 32 to 50 and by applying any regulations made under section 181 — identify, as of the times or in the circumstances that are prescribed by the regulations, any differences in compensation between the predominantly female job classes and the predominantly male job classes as a result of any change, since the most recent posting of the pay equity plan, that is likely to have had an impact on pay equity, other than any change excluded by regulation.

• Marginal note:Multiple plans

  (2) If an employer has established more than one pay equity plan and if, at the time that the employer — or, if a pay equity committee has been established, that committee — is carrying out its obligations under this Act in respect of any one of those plans, the employer or pay equity committee, as the case may be, determines that there are no longer any predominantly male job classes under that plan but that there is at least one such job class under at least one of the other plans, that employer or committee must compare, in accordance with sections 48 to 50, the compensation associated with the predominantly female job classes under that plan with the compensation associated with the predominantly male job classes under the other plans.

Marginal note:Revision of pay equity plan

• 79 (1) The employer — or, if a pay equity committee has been established, that committee — must revise the content of the pay equity plan, as set out in section 51, taking into account any differences in compensation identified under section 78.

• Marginal note:Documentation of changes

  (2) The employer or pay equity committee, as the case may be, must set out in a document any changes made to the pay equity plan.

Posting

Marginal note:Revised pay equity plan and notice

80 Once a pay equity plan is revised, the employer must post, close together and all at once, the following documents:

• (a) the revised pay equity plan;

• (b) a draft of the document referred to in subsection 79(2); and

• (c) a notice informing employees to whom the revised pay equity plan relates of their right to provide the employer — or, if a pay equity committee has been established, that committee — with comments on the documents referred to in paragraphs (a) and (b) and the time within which and the manner in which they may exercise that right.

Marginal note:Revised pay equity plan and notice — group of employers

• 81 (1) Once the pay equity plan is revised, each employer in a group of employers must post, close together and all at once, the following documents:

  • (a) the revised pay equity plan;

  • (b) a draft of the document referred to in subsection 79(2); and

  • (c) a notice informing employees to whom the revised pay equity plan relates of their right to provide that group of employers — or, if a pay equity committee has been established, that committee — with comments on the documents referred to in paragraphs (a) and (b) and the time within which and the manner in which they may exercise that right.

• Marginal note:Same-day posting

  (2) Employers that are in a group of employers must all post the documents referred to in paragraphs (1)(a) to (c) on the same day.

Marginal note:Written comments

• 82 (1) Employees to whom the revised pay equity plan and the draft of the document referred to in subsection 79(2) relate have 60 days following the day on which they are posted to provide the employer — or, if a pay equity committee has been established, that committee — with written comments on them.

• Marginal note:Consideration of comments

  (2) The employer or pay equity committee, as the case may be, must consider any comments that have been provided under subsection (1) when preparing the final version of the revised pay equity plan and of the document referred to in subsection 79(2).

Marginal note:Final version — five-year maximum

• 83 (1) An employer — or, in the case of a group of employers, each employer in the group — must post the final version of the revised pay equity plan and of the document referred to in subsection 79(2) no later than the fifth anniversary of the day on which the employer posted, as the case may be,

  • (a) the pay equity plan in accordance with section 55, subsection 57(2) or paragraph 94(1)(b); or

  • (b) the previous final version of the revised pay equity plan and the previous final version of the document referred to in subsection 79(2), in accordance with this subsection or subsection 85(2).

• Marginal note:Same-day posting

  (2) Employers that are in a group of employers must all post, on the same day, the final version of the revised pay equity plan.

Marginal note:Notice of increases

84 An employer must post, before the date on which an increase in compensation — and any lump sum — is payable under subsection 88(4), a notice indicating that date.

Marginal note:Extension of time limit for posting

• 85 (1) An employer may apply to the Pay Equity Commissioner for an extension of the period set out in subsection 83(1) for the posting of a final version of the revised pay equity plan and of the document referred to in subsection 79(2).

• Marginal note:Authorization of Pay Equity Commissioner

  (2) If the Pay Equity Commissioner authorizes an extension, the employer — or, in the case of a group of employers, each employer in the group — must

  • (a) post, as soon as feasible after obtaining the authorization, a notice indicating the date on which the extended period ends; and

  • (b) despite subsection 83(1), post the final version of the revised pay equity plan and the document referred to in subsection 79(2) within the extended period.

• Marginal note:Same-day posting

  (3) Employers that are in a group of employers must all post, on the same day, the final version of the revised pay equity plan.

Marginal note:Updated pay equity plan

86 An employer is deemed to have updated a pay equity plan on the day on which it posts the revised pay equity plan in accordance with subsection 83(1) or 85(2), as the case may be.

Marginal note:Updated pay equity plan — group of employers

87 A group of employers is deemed to have updated a pay equity plan on the day on which each employer in the group posts the revised pay equity plan in accordance with subsections 83(1) and (2), or subsection 85(2), as the case may be.

Increases in Compensation

Marginal note:Obligation to increase compensation

• 88 (1) If a revised pay equity plan posted by an employer in accordance with section 83 or subsection 85(2) discloses differences in compensation identified in accordance with section 78, the employer must increase — in accordance with the provisions of the revised pay equity plan that meet the requirements set out in paragraph 51(k) — the compensation that is payable to its employees who occupy positions in the predominantly female job classes for which an increase in compensation is required to be made under that revised pay equity plan.

• Marginal note:Lump sum

  (2) If an employee referred to in subsection (1) is entitled, as determined in accordance with the regulations, to a lump sum in respect of a period determined in accordance with the regulations — which period is to begin on or after the day on which the previous pay equity plan was posted in accordance with section 55, subsection 57(2), section 83, subsection 85(2) or paragraph 94(1)(b), as the case may be, and end no later than the day on which the revised pay equity plan was posted in accordance with section 83 or, if the employer posted it in accordance with subsection 85(2), the fifth anniversary of the day referred to in subsection 83(1) — and in an amount determined in accordance with the regulations, the employer is also required to pay to the employee, on the day on which compensation is required to be increased under subsection (4), that lump sum.

• Marginal note:Lump sum — posting under subsection 85(2)

  (3) An employer that posts a revised pay equity plan in accordance with subsection 85(2) must also pay, on the day on which compensation is required to be increased under subsection (4), to each of its employees referred to in subsection (1), as a lump sum — for the period beginning on the last day on which the revised pay equity plan could have been posted in accordance with section 83 and ending on the day on which it was posted in accordance with subsection 85(2), or for any shorter period within that period during which the employee occupied a position referred to in subsection (1) — an amount in dollars equal to the increase in compensation that would have been payable to the employee had that increase been made starting on the day after the last day on which the revised pay equity plan could have been posted in accordance with section 83.

• Marginal note:Date increase is payable

  (4) The increase in compensation and any lump sum required to be paid under any of subsections (1) to (3) is payable on the day after the day on which the revised pay equity plan is posted in accordance with section 83 or subsection 85(2), as the case may be.

• Marginal note:Interest

  (5) An employer that posts a revised pay equity plan in accordance with subsection 85(2) must also pay to any employee who is entitled to a lump sum under subsection (2) interest on that lump sum. The interest is to be calculated and compounded daily on the lump sum, at the rate that is prescribed by regulation or calculated in a manner that is prescribed by regulation, for the period beginning on the last day on which the revised pay equity plan could have been posted in accordance with section 83 and ending on the day on which the revised pay equity plan was posted in accordance with subsection 85(2).

• Marginal note:Interest — posting under subsection 85(2)

  (6) An employer that is required to pay a lump sum to an employee under subsection (3) must also pay interest on the amount of each increase that the employee would have received at each payday within the period for which the lump sum is payable had the employer posted the pay equity plan in accordance with section 83. The interest is to be calculated and compounded daily on the amount, at the rate that is prescribed by regulation or calculated in a manner that is prescribed by regulation, for the period beginning on the day on which the amount would have been required to have been paid and ending on the day on which it is paid.

• Marginal note:Interest rate if none prescribed

  (7) If no regulations are made for the purpose of subsection (5) or (6), the rate of interest is the rate per annum that is the aggregate of 2% per annum and the bank rate in effect on the day in respect of which the interest is calculated.

• Marginal note:Former employees

  (8) The requirement under this section to pay a lump sum and interest to employees also applies to former employees who occupied a position referred to in subsection (1) during the period determined for the purpose of subsection (2) or set out in subsection (3), as the case may be.

PART 4General Provisions — Pay Equity Plans

Annual Statement

Marginal note:Contents

• 89 (1) Subject to subsection (3), each employer that is subject to this Act must submit to the Pay Equity Commissioner, in accordance with this section, an annual statement that contains the following:

  • (a) the name of the employer;

  • (b) the date on which the employer became subject to this Act;

  • (c) an indication as to whether the version of the pay equity plan most recently posted in accordance with subsection 55(1) or 57(2), section 83, subsection 85(2), or paragraph 94(1)(b), as the case may be, was established or updated, as the case may be, with or without a pay equity committee;

  • (d) the number of employees employed by the employer on the last day of the year immediately before the year in which the annual statement is submitted;

  • (e) in respect of each pay equity plan that the employer is required to establish, the date of the version of the pay equity plan most recently posted in accordance with subsection 55(1) or 57(2), section 83, subsection 85(2) or paragraph 94(1)(b), as the case may be;

  • (f) if applicable, in respect of each pay equity plan that the employer is required to establish, the number of predominantly female job classes for which an increase in compensation is required in accordance with the version of the pay equity plan most recently posted in accordance with subsection 55(1) or 57(2), section 83, subsection 85(2) or paragraph 94(1)(b), as the case may be;

  • (g) for each of the job classes referred to in paragraph (f), if that paragraph applies,

    • (i) the amount, in dollars per hour, of the increase in compensation and the percentage of the increase in the compensation of that job class that the increase represents,

    • (ii) if applicable, the aggregate amount of all lump sums paid to its employees under subsection 62(2) or (3), subparagraph 62(4)(d)(ii) or subsection 88(2) or (3) and all interest paid on those amounts under subsection 62(5) or 88(5) or (6),

    • (iii) the total number of employees occupying positions in that job class who are entitled to the increase and lump sum referred to in subparagraphs (i) and (ii), and

    • (iv) among the employees referred to in subparagraph (iii), the total number of them who are women; and

  • (h) any other information that is prescribed by regulation.

• Marginal note:Contents — group of employers

  (2) Every group of employers must submit to the Pay Equity Commissioner, in accordance with this section, an annual statement that contains the following:

  • (a) the name of each employer in the group;

  • (b) the date on which the group became subject to this Act;

  • (c) an indication as to whether the version of the pay equity plan most recently posted in accordance with subsections 55(1) and (2), subsections 57(2) and (3), section 83 or subsections 85(2) and (3), as the case may be, was established or updated, as the case may be, with or without a pay equity committee;

  • (d) the sum of the number of employees employed by each employer in the group on the last day of the year immediately before the year in which the annual statement is submitted;

  • (e) in respect of each pay equity plan that the group is required to establish, the date of the version of the pay equity plan most recently posted in accordance with subsections 55(1) and (2), subsections 57(2) and (3), section 83 or subsections 85(2) and (3), as the case may be;

  • (f) if applicable, in respect of each pay equity plan that the group is required to establish, the number of predominantly female job classes for which an increase in compensation is required in accordance with the version of the pay equity plan most recently posted in accordance with subsections 55(1) and (2), subsections 57(2) and (3), section 83 or subsections 85(2) and (3), as the case may be;

  • (g) for each of the job classes referred to in paragraph (f), if that paragraph applies,

    • (i) the amount, in dollars per hour, of the increase and the percentage of the increase in the compensation of that job class that the increase represents,

    • (ii) if applicable, the aggregate amount of all lump sums paid to employees under subsection 62(2), subparagraph 62(4)(d)(ii) or subsection 88(2) or (3) and all interest paid on those amounts under subsection 62(5) or 88(5) or (6),

    • (iii) the total number of employees occupying positions in that job class who are entitled to the increase and lump sum referred to in subparagraphs (i) and (ii), and

    • (iv) among the employees referred to in subparagraph (iii), the total number of them who are women; and

  • (h) any other information that is prescribed by regulation.

• Marginal note:First annual statement

  (3) The first annual statement must be submitted on or before June 30 — or during any other period that is prescribed by regulation — in the calendar year following,

  • (a) subject to paragraph (b), the calendar year in which falls the third anniversary of the date referred to in subparagraph 61(1)(a)(i) or paragraph 61(1)(b), as the case may be; or

  • (b) in the case of an employer that, but for the authorization granted in accordance with subsection 57(2), would have been required to post a pay equity plan in accordance with paragraph 94(1)(b), the calendar year in which falls the day that is 18 months after the date on which the employer became subject to this Act.

• Marginal note:Subsequent annual statements

  (4) Subsequent annual statements must be submitted on or before June 30 — or during any other period that is prescribed by regulation — in the calendar year following the calendar year in which the previous annual statement was submitted.

• Marginal note:Definition of year

  (5) For the purpose of paragraphs (1)(d) and (2)(d), year means,

  • (a) in the case of an employer referred to in any of paragraphs 3(2)(a) to (d), its fiscal year; and

  • (b) in the case of an employer referred to in any of paragraphs 3(2)(e) to (i), the calendar year.

Record Keeping

Marginal note:Private sector and territorial governments — establishment of pay equity plan

• 90 (1) An employer referred to in any of paragraphs 3(2)(e) to (i) must

  • (a) retain a copy of the final version of any pay equity plan that it posts in accordance with section 55, subsection 57(2) or paragraph 94(1)(b) until the day on which it posts in accordance with section 83 or subsection 85(2) the final version of the pay equity plan as first updated, or any later date that is prescribed by regulation; and

  • (b) retain all records, reports, electronic data or other documents relevant to the establishment of the pay equity plan for the period during which it is required under paragraph (a) to retain a copy of the final version of the pay equity plan.

• Marginal note:Private sector and territorial governments — update of pay equity plan

  (2) An employer referred to in any of paragraphs 3(2)(e) to (i) must

  • (a) retain a copy of any revised pay equity plan that it posts in accordance with section 83 or subsection 85(2) — as well as a copy of the document referred to in subsection 79(2) that it posts under that section or subsection — until the day on which it posts the next revised pay equity plan in accordance with section 83 or subsection 85(2), or any later day that is prescribed by regulation; and

  • (b) retain all records, reports, electronic data or other documents relevant to the update of the pay equity plan for the period during which it is required under paragraph (a) to retain a copy of the final version of the revised pay equity plan.

Marginal note:Extension of time for retaining documents

• 91 (1) The Pay Equity Commissioner may order an employer referred to in section 90 to retain the copies and other documents referred to in that section for any period set out in the order that is longer than the period that they are required to retain them under that section.

• Marginal note:Obligation to retain documents for extended period

  (2) The employer must retain the copies and other documents referred to in section 90 for the period set out in the order unless it receives a copy of the order after the end of the period that it is required to retain the copies and other documents under that section and it has already disposed of them.

Transfers or Leases

Marginal note:Federal private sector — transfer or lease

92 If a federal work, undertaking or business, as defined in section 2 of the Canada Labour Code, or any part of it — or a corporation established to perform any duty or function on behalf of the Government of Canada, or any part of the corporation, other than a corporation named in Schedule IV or V of the Financial Administration Act — is leased or transferred by sale, merger or other­wise from one employer, in this section referred to as the “former employer”, to another employer, in this section referred to as the “new employer”, and the former employer had posted, or is deemed to be the employer that had posted, as the case may be, a pay equity plan in accordance with section 55, subsection 57(2), section 83 or subsection 85(2),

• (a) the new employer is deemed to be the employer that posted the pay equity plan;

• (b) the new employer is liable for the former employer’s obligations under this Act that arose as a result of the posting of the pay equity plan; and

• (c) if the new employer was not subject to this Act immediately before the day of the transfer or lease, it becomes subject to this Act on that day.

Marginal note:Federal private sector — re-tendering

93 If, by reason of a contract being awarded through a re-tendering process, an employer, in this section referred to as the “new employer”, becomes responsible for the carrying out or the operation of a federal work, undertaking or business, as defined in section 2 of the Canada Labour Code, or any part of it, that was previously carried out or operated by another employer, in this section referred to as the “former employer”, and the former employer had posted, or is deemed to be the employer that had posted, as the case may be, a pay equity plan in accordance with section 55, subsection 57(2), section 83 or subsection 85(2),

• (a) the new employer is deemed to be the employer that posted the pay equity plan;

• (b) the new employer is liable for the former employer’s obligations under this Act that arose as a result of the posting of the pay equity plan; and

• (c) if the new employer was not subject to this Act immediately before the day on which the contract becomes effective, it becomes subject to this Act on that day.

Marginal note:Provincial business

• 94 (1) If, after the coming into force of this section, a person that carries out or operates a provincial business becomes an employer referred to in any of paragraphs 3(2)(e) to (i), and the person was, while carrying out or operating the provincial business, required to establish a pay equity plan under the laws of a province,

  • (a) for the purpose of calculating, under subparagraph 9(a)(ii) or (b)(ii), the average of the number of the employer’s employees in the calendar year in which the person becomes an employer, the persons who were employed in the provincial business in that calendar year are deemed to have been employees of that employer in that calendar year; and

  • (b) if the employer becomes subject to this Act on a day that is on or after the day that is 18 months after the date on which this section comes into force, the employer must, despite subsection 55(1), post the final version of the pay equity plan no later than the day that is 18 months after the date on which the employer became subject to this Act.

• Marginal note:Definition of provincial business

  (2) In subsection (1), provincial business means a work, undertaking or business, or any part of a work, undertaking or business that is subject to the employment laws of a province.

Collective Agreements

Marginal note:Effect on collective agreements

95 In the event of an inconsistency between the version of a pay equity plan most recently posted in accordance with section 55, 57, 83 or 85 or paragraph 94(1)(b), as the case may be, and any collective agreement governing the employees to whom the pay equity plan relates, that pay equity plan prevails to the extent of the inconsistency. Any increase in compensation payable by an employer to employees under this Act is deemed to be incorporated into and form part of the collective agreements governing those employees.

Implementation

Marginal note:90-day period

96 Despite any other provision of this Act, an employer may not be the subject of a complaint under this Act, or be served with a notice of violation under this Act, where the subject-matter of the complaint or alleged violation is the failure of the employer to pay the amount of any increase in compensation — or any lump sum — payable under this Act within the first 90 days after the day on which that amount is payable.

Interest

Marginal note:Failure to pay amount due

• 97 (1) If an employer fails to pay an amount to an employee when required under section 61, 62 or 88, as the case may be, the employer must pay to the employee interest on the amount. The interest is to be calculated and compounded daily on the amount, at the rate that is prescribed by regulation or calculated in a manner that is prescribed by regulation, for the period beginning on the first day after the day on which the amount was required to be paid and ending on the day on which the amount is paid.

• Marginal note:Interest rate if none prescribed

  (2) If no regulations are made for the purpose of subsection (1), the rate of interest is the rate per annum that is the aggregate of 2% per annum and the bank rate in effect on the day in respect of which the interest is calculated.

Prohibitions

Marginal note:Reduction of compensation

98 An employer must not reduce the compensation payable to any of its employees in order to achieve pay equity.

Marginal note:Obstruction

99 It is prohibited to obstruct, by act or omission, the Pay Equity Commissioner or his or her delegate while they are engaged in the exercise of powers or the performance of duties or functions under this Act.

Marginal note:False or misleading statements — Pay Equity Commissioner

100 It is prohibited to knowingly make any false or misleading statement verbally or in writing to the Pay Equity Commissioner, or to his or her delegate, while they are engaged in the exercise of powers or the performance of duties or functions under this Act.

Marginal note:False or misleading statements — records, reports, etc.

101 It is prohibited for any person to knowingly make, or participate in, assent to or acquiesce in the making of a false or misleading statement in any record, report, electronic data or other document that the person is required to prepare, retain or provide under this Act.

Marginal note:Reprisal by employer

102 No employer and no person acting on an employer’s behalf is to take reprisal against a person, including by refusing to employ or to continue to employ the person, or suspending or laying off the person or otherwise discriminating against the person with respect to employment, pay or any other term of employment or intimidating, threatening or disciplining the person, because the person has

• (a) testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Act;

• (b) filed a complaint or exercised any right under this Act; or

• (c) taken an action in compliance with this Act or refused to take an action that would have resulted in non-compliance with this Act.

Marginal note:Reprisal by bargaining agent

103 No bargaining agent or person acting on behalf of a bargaining agent is to take reprisal against a person, including by

• (a) taking disciplinary action against or imposing any form of penalty on the person by applying to that person in a discriminatory manner the standards of discipline of the bargaining agent, because that person

  • (i) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Act,

  • (ii) has filed a complaint or exercised any right under this Act, or

  • (iii) has taken an action in compliance with this Act or refused to take an action that would have resulted in non-compliance with this Act;

• (b) expelling or suspending the person from membership in the trade union or employee organization or taking disciplinary action against or imposing any form of penalty on the person by reason of that person having refused to perform an act that is contrary to this Act; or

• (c) discriminating against the person with respect to employment, a term of employment or membership in a trade union or employee organization, or intimidating or coercing the person or imposing a financial or other penalty on the person, because that person

  • (i) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Act,

  • (ii) has filed a complaint or exercised any right under this Act, or

  • (iii) has taken an action in compliance with this Act or refused to take an action that would have resulted in non-compliance with this Act.

PART 5Pay Equity Commissioner

Pay Equity Commissioner’s Role

Marginal note:Mandate — Pay Equity Commissioner

• 104 (1) The Pay Equity Commissioner’s mandate is to

  • (a) ensure the administration and enforcement of this Act;

  • (b) assist persons in understanding their rights and obligations under this Act; and

  • (c) facilitate the resolution of disputes relating to pay equity.

• Marginal note:Duties

  (2) In carrying out his or her mandate, the Pay Equity Commissioner must

  • (a) monitor the implementation of this Act, including the establishment and updating of pay equity plans;

  • (b) offer assistance to employers, employees and bargaining agents in relation to pay equity matters and applications, including in relation to complaints, objections and disputes, and decide any matter or application over which he or she has jurisdiction under this Act;

  • (c) develop tools to promote compliance with this Act;

  • (d) educate and inform employers, employees and bargaining agents of their rights and obligations under this Act;

  • (e) undertake and publish research related to pay equity matters; and

  • (f) maintain close liaison with similar bodies or authorities in the provinces in order to coordinate efforts when appropriate.

Marginal note:Delegation

• 105 (1) The Pay Equity Commissioner may delegate, subject to any restrictions or limitations that he or she may specify, any of his or her powers, duties and functions under this Act — other than those set out in sections 104, 114, 115 and 117 and the power to delegate under this section — to any person or class of persons other than the Chief Commissioner of the Canadian Human Rights Commission.

• Marginal note:Certificate of delegation

  (2) Each person to whom powers, duties or functions are delegated under subsection (1) must be provided with a certificate of delegation in the form established by the Pay Equity Commissioner and that person must, when exercising those powers or performing those duties or functions, produce the certificate to any person who asks to see it.

Authorizations by Pay Equity Commissioner

Marginal note:Recognition of group as single employer

• 106 (1) On receipt of an application referred to in subsection 4(1), the Pay Equity Commissioner may recognize the group as a single employer if he or she is of the opinion that the employers

  • (a) are part of the same industry;

  • (b) have similar compensation practices; and

  • (c) have positions with similar duties and responsibilities.

• Marginal note:Choice of date

  (2) If the Pay Equity Commissioner recognizes a group as a single employer under subsection (1), he or she must choose the day on which the group becomes subject to this Act for the purpose of subsection 55(1), and paragraphs 61(1)(b) and 89(2)(b). He or she must choose a day that

  • (a) is after the day on which one of the employers in the group becomes subject to this Act; and

  • (b) is, in his or her opinion, the earliest day that would give the group sufficient time to meet its obligations under this Act.

Marginal note:Authority — multiple pay equity plans

107 On receipt of an application referred to in subsection 30(1) or (2) and after giving an opportunity to make representations under subsection 30(4), the Pay Equity Commissioner may, if the application has not been denied under subsection 30(5) and if he or she is of the opinion that it is appropriate in the circumstances, authorize the establishment of more than one pay equity plan.

Marginal note:Authority — plan without committee

108 On receipt of an application referred to in section 25, 26, 73 or 74, the Pay Equity Commissioner may, if he or she is of the opinion that it is appropriate in the circumstances and in accordance with any regulations made under paragraph 181(1)(o), authorize the establishment or update, as the case may be, of a pay equity plan without a pay equity committee.

Marginal note:Authority — different committee membership

109 On receipt of an application referred to in subsection 19(3), section 27, subsection 67(6) or 68(6) or section 75, the Pay Equity Commissioner may, if he or she is of the opinion that it is appropriate in the circumstances and in accordance with any regulations made under paragraph 181(1)(o), authorize the establishment or continuation, as the case may be, of a pay equity committee that does not comply with the requirements set out in any of paragraphs 19(1)(a), (b), (d) and (e).

Marginal note:Authority — Committee cannot perform work

110 On receipt of an application referred to in section 28, 29, 76 or 77, the Pay Equity Commissioner must

• (a) attempt to assist the pay equity committee in the performance of its work; and

• (b) if he or she is of the opinion that the pay equity committee is unable to perform its work and that it is appropriate in the circumstances, authorize the establishment or update, as the case may be, of a pay equity plan without a pay equity committee.

Marginal note:Authority — other compensation comparison method

111 On receipt of an application referred to in subparagraph 48(2)(a)(i), the Pay Equity Commissioner may, if he or she is of the opinion that it is appropriate in the circumstances, authorize the use of a method for the comparison of compensation that is prescribed by regulation or, if no such method is prescribed or the employer is of the opinion that a method prescribed by regulation cannot be used, the method proposed by the employer.

Marginal note:Authority — extension for posting final plan

• 112 (1) On receipt of an application referred to in subsection 57(1), the Pay Equity Commissioner may, if he or she is of the opinion that it is appropriate in the circumstances and in accordance with any regulations made under paragraph 181(1)(o), authorize an extension of the period set out in subsection 55(1) or paragraph 94(1)(b), as the case may be, for the posting of a final pay equity plan.

• Marginal note:Authority — extension for posting final revised plan

  (2) On receipt of an application referred to in subsection 85(1), the Pay Equity Commissioner may, if he or she is of the opinion that it is appropriate in the circumstances and in accordance with any regulations made under paragraph 181(1)(o), authorize an extension of the period set out in subsection 83(1) for the posting of a final version of the revised pay equity plan and the final version of the document referred to in subsection 79(2).

Marginal note:Authority — longer phase-in period

113 On receipt of an application referred to in subsection 63(1), the Pay Equity Commissioner may, if he or she is of the opinion that it is justified on the basis that the employer has demonstrated extreme financial hardship, authorize the employer to phase in increases in compensation that are required to be made under a pay equity plan over a longer phase-in period than the one set out in paragraph 61(2)(c) or (d) or 62(4)(e) or (f).

Information and Reports

Marginal note:Provision of information or advice

114 The Pay Equity Commissioner may — or, if requested to do so by the Minister, must — provide the Minister with information or advice in respect of systemic or emerging pay equity issues.

Marginal note:Special reports

• 115 (1) The Pay Equity Commissioner may — or, if requested to do so by the Minister, must — prepare a report to the Senate and the House of Commons in respect of issues arising from the administration and enforcement of this Act or in respect of systemic or emerging pay equity issues.

• Marginal note:Transmission of special reports

  (2) As soon as feasible, but in any case within three months after the end of the fiscal year in which the report is prepared, the Pay Equity Commissioner must cause the report to be transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling in those Houses and provide the Minister and the Minister of Justice with a copy of the report.

Marginal note:Provision of data to Minister

116 The Pay Equity Commissioner must provide the Minister, on the request of and in the form specified by the Minister, with any data that the Minister requires to evaluate whether the purpose of the Act is being met.

Marginal note:Annual report

• 117 (1) The Pay Equity Commissioner must prepare an annual report to the Senate and the House of Commons on the administration and enforcement of this Act. The report may include information on systemic or emerging pay equity issues.

• Marginal note:Transmission of report and copy

  (2) Within three months after the end of each fiscal year, the Pay Equity Commissioner must cause the report to be transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling in those Houses and provide the Minister and the Minister of Justice with a copy of the report.

PART 6Investigations and Audits

Marginal note:Compliance audit

• 118 (1) The Pay Equity Commissioner may, for a purpose related to verifying compliance or preventing non-compliance with this Act or the regulations, conduct a compliance audit of any employer or bargaining agent on whom this Act imposes an obligation.

• Marginal note:Notification

  (2) The Pay Equity Commissioner must notify the employer or bargaining agent to be audited that he or she will commence a compliance audit.

• Marginal note:Powers

  (3) The Pay Equity Commissioner may, for the purpose of conducting a compliance audit,

  • (a) enter any place — including a conveyance — other than a dwelling-house, in which he or she has reasonable grounds to believe there is any record, report, electronic data or other document, or any information or thing, relevant to that purpose;

  • (b) examine any record, report, electronic data or other document or thing that is found in the place and make copies of it or take extracts from it;

  • (c) use or cause to be used any computer system at the place to examine any electronic data referred to in paragraph (b);

  • (d) reproduce any document from any electronic data referred to in paragraph (b), or cause it to be reproduced, in the form of a printout or other output;

  • (e) take the record, report or other document referred to in paragraph (b) or the printout or other output referred to in paragraph (d) for examination or copying;

  • (f) use or cause to be used any copying equipment at the place to make copies of any document; and

  • (g) order any person in the place to establish their identity to the Pay Equity Commissioner’s satisfaction, or to the satisfaction of the Pay Equity Commissioner’s delegate, as the case may be.

• Marginal note:Production of document or data

  (4) The Pay Equity Commissioner may make an order in writing requiring an employer or bargaining agent to produce for examination or reproduction all or part of any record, report, electronic data or other document that the Pay Equity Commissioner believes on reasonable grounds contain any information relevant to the purpose of conducting a compliance audit.

• Marginal note:Copies

  (5) The Pay Equity Commissioner may

  • (a) make copies or take extracts from the record, report, electronic data or other document produced under an order made under subsection (4); and

  • (b) reproduce any document from such electronic data, or cause it to be reproduced, in the form of a printout or other output.

• Marginal note:Additional powers

  (6) If, in the course of exercising the powers set out in subsection (3), the Pay Equity Commissioner identifies an issue that, in his or her opinion, requires investigation, he or she may exercise the powers set out in paragraphs 121(a) to (e).

• Marginal note:Completion of compliance audit

  (7) On completion of a compliance audit, the Pay Equity Commissioner may

  • (a) identify measures that the employer or bargaining agent is to take to remedy a non-compliance issue, and give notice, in writing, of those measures and the time within which they are to be taken to the employer or bargaining agent; or

  • (b) if he or she does not identify measures under subsection (a), issue an order under section 119.

• Marginal note:Order — failure to take measures

  (8) If the Pay Equity Commissioner is satisfied that the employer or bargaining agent, as the case may be, has not taken the measures identified in a notice under paragraph (7)(a) within the time specified in the notice, he or she may issue an order under section 119.

Marginal note:Power to order termination of contravention

119 If the Pay Equity Commissioner has reasonable grounds to believe that an employer, employee or bargaining agent is contravening or has contravened a provision of this Act or the regulations, or an order of the Pay Equity Commissioner or the Tribunal issued under this Act, he or she may, subject to subsections 118(7) and (8), make an order in writing requiring the employer, employee or bargaining agent to terminate the contravention within the time specified in the order or to take any measures specified in the order, within the time specified in the order, to ensure that the contravention does not continue or reoccur. The order must specify the time within which and the manner in which it may be appealed.

Marginal note:Internal audit order

• 120 (1) Subject to the regulations, the Pay Equity Commissioner may, in writing, for a purpose related to verifying compliance or preventing non-compliance with this Act, order an employer to

  • (a) conduct an internal audit of its practices and records, reports, electronic data or other documents to determine whether the employer is in compliance with any provision of this Act or the regulations; and

  • (b) provide a report of the results of the audit to the Pay Equity Commissioner.

• Marginal note:Contents of order

  (2) The Pay Equity Commissioner must, in the internal audit order, specify

  • (a) the employer to which it applies;

  • (b) the period of time to be covered by the internal audit;

  • (c) the provisions of this Act or the regulations with respect to which the internal audit is being ordered;

  • (d) the date by which the employer is to provide the report; and

  • (e) the form of the report.

• Marginal note:Information to include in report

  (3) The Pay Equity Commissioner may also specify in the order that the report is to contain any information specified in the order that he or she considers appropriate.

• Marginal note:Report — non-compliance

  (4) If the employer determines that it has not complied with any provision referred to in the order, the employer must set out in the report the nature of the employer’s non-compliance and the measures that have been or will be taken by the employer to comply with the provision.

• Marginal note:Compliance audit not precluded

  (5) For greater certainty, nothing in this section precludes the Pay Equity Commissioner from conducting a compliance audit under section 118.

Marginal note:Powers — investigation or application

121 In the conduct of an investigation under this Act or the consideration of an application submitted under this Act, the Pay Equity Commissioner may

• (a) summon and enforce the appearance of persons before the Pay Equity Commissioner and compel them to give oral or written evidence on oath and to produce any record, report, electronic data or other document, or any information or thing, that the Pay Equity Commissioner considers necessary, in the same manner and to the same extent as a superior court of record;

• (b) administer oaths;

• (c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Pay Equity Commissioner sees fit, whether or not it is or would be admissible in a court of law;

• (d) enter any place — including a conveyance — other than a dwelling-house;

• (e) converse in private with any person in any place entered under paragraph (d) and otherwise carry out in that place any inquiries that the Pay Equity Commissioner sees fit; and

• (f) exercise any of the powers referred to in any of paragraphs 118(3)(b) to (g).

Marginal note:Means of telecommunication

• 122 (1) For the purposes of subsection 118(3) and section 121, the Pay Equity Commissioner is considered to have entered a place when accessing it remotely by a means of telecommunication.

• Marginal note:Limitation — place not accessible to the public

  (2) If the Pay Equity Commissioner accesses remotely, by a means of telecommunication, a place that is not accessible to the public, he or she must do so with the knowledge of the owner or person in charge of the place and must be remotely in the place for no longer than the period necessary for the purpose of the compliance audit or the investigation, as the case may be.

Marginal note:Accompanying individual

123 The Pay Equity Commissioner may be accompanied by any other individual the Pay Equity Commissioner believes is necessary to help him or her exercise his or her powers or perform his or her duties or functions under section 118 or 121.

Marginal note:Assistance

124 The owner or other person in charge of a place entered by the Pay Equity Commissioner or his or her delegate under section 118 or 121 and every individual found in the place must give the Pay Equity Commissioner or the delegate, as the case may be, all reasonable assistance and provide the Pay Equity Commissioner or delegate with any information that the Pay Equity Commissioner or delegate may reasonably require.

PART 7Administrative Monetary Penalties

Definition

Marginal note:Meaning of penalty

125 In this Part, penalty means an administrative monetary penalty imposed under this Part for a violation.

Purpose

Marginal note:Purpose of penalty

126 The purpose of a penalty is to promote compliance with this Act and not to punish.

Regulations

Marginal note:Regulations

• 127 (1) The Governor in Council may make regulations

  • (a) designating, as a violation that may be proceeded with in accordance with this Part,

    • (i) the contravention of any specified provision of this Act or the regulations, or

    • (ii) the contravention of any order made or issued under any provision of this Act or the regulations;

  • (b) classifying each violation as a minor violation, a serious violation or a very serious violation;

  • (c) fixing a penalty, or a range of penalties, in respect of each violation, penalties which may be different for employers, groups of employers, bargaining agents and other persons;

  • (d) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established;

  • (e) respecting the circumstances under which, the criteria by which and the manner in which a penalty may be reduced;

  • (f) establishing the time and manner for paying a penalty;

  • (g) respecting the determination of a lesser amount than the penalty imposed that may be paid in complete satisfaction of the penalty if paid within the time and manner prescribed by regulation;

  • (h) respecting the service of documents required or authorized under this Part, including the documents or types of documents that must be served, the manner and proof of service and the circumstances under which documents are deemed to be served;

  • (i) respecting who can request a review in respect of a notice of violation or penalty and the manner of making the request; and

  • (j) specifying information for the purposes of section 146.

• Marginal note:Maximum penalty

  (2) The maximum penalty in respect of a violation that may be fixed under regulations made under paragraph (1)(c) is

  • (a) $30,000 for an employer that, at the time the notice of violation is served,

    • (i) is considered to have 10 to 99 employees for the purposes of paragraph 8(a) or 9(a), as the case may be, or

    • (ii) if the employer has posted one or more notices referred to in subsection 65(1), is considered to have less than 100 employees for the purposes of paragraph 69(b) or 70(b), as the case may be, in respect of the most recently-posted notice;

  • (b) $30,000 for a bargaining agent representing some or all of the unionized employees of an employer referred to in paragraph (a);

  • (c) $50,000 for an employer that, at the time the notice of violation is served,

    • (i) is considered to have 100 or more employees for the purposes of paragraph 8(b) or 9(b), as the case may be, or

    • (ii) if the employer has posted one or more notices referred to in subsection 65(1), is considered to have 100 or more employees for the purposes of paragraph 69(a) or 70(a), as the case may be, in respect of the most recently-posted notice; or

  • (d) $50,000 for a bargaining agent representing some or all of the unionized employees of an employer referred to in paragraph (c).

Pay Equity Commissioner’s Powers, Duties and Functions

Marginal note:Powers regarding notices of violation

128 The Pay Equity Commissioner may

• (a) establish the form of notices of violation; and

• (b) establish, in respect of each violation, a short-form description to be used in notices of violation.

Commission of Violations

Marginal note:Violations

129 Every employer, group of employers, bargaining agent or other person that contravenes a provision or order designated by regulations made under paragraph 127(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with regulations made under paragraph 127(1)(c).

Marginal note:Liability of parties to violation

130 If an employer or bargaining agent commits a violation, any of the following persons who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the employer or bargaining agent has been proceeded against in accordance with this Part:

• (a) any officer, director, agent or mandatary of the employer or bargaining agent;

• (b) any senior official of the employer or bargaining agent; or

• (c) any other person authorized to exercise managerial or supervisory functions on behalf of the employer or bargaining agent.

Marginal note:Employees or agents or mandataries

131 An employer or bargaining agent is liable for a violation that is committed by any of their employees or agents or mandataries acting in the course of their employment or the scope of their authority as agent or mandatary, whether or not the employee or agent or mandatary that actually committed the violation is identified.

Marginal note:Notice of violation

• 132 (1) If the Pay Equity Commissioner has reasonable grounds to believe that an employer, group of employers, bargaining agent or other person has committed a violation, he or she may issue a notice of violation and must cause it to be served on the employer, each employer in the group of employers, the bargaining agent or the other person.

• Marginal note:Contents

  (2) The notice of violation must

  • (a) name the employer, bargaining agent or other person that is believed to have committed the violation or, if it is believed that a group of employers committed, the violation, each employer in that group;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the penalty for the violation;

  • (d) set out any lesser amount determined in accordance with the regulations that may be paid in complete satisfaction of the penalty if paid within the time and in the manner prescribed by regulation;

  • (e) inform the employer, group of employers, bargaining agent or other person of their right to contest the facts of the alleged violation, the penalty or both, by way of review, and specify the time within which and the manner in which to do so in accordance with section 139;

  • (f) inform the employer, group of employers, bargaining agent or other person of the time within which and manner in which the penalty set out in the notice is to be paid; and

  • (g) inform the employer, each employer in the group of employers, the bargaining agent or the other person that, if they do not pay the penalty or exercise their right referred to in paragraph (e) within the time and in the manner prescribed by regulation, they will be considered to have committed the violation and that they are liable for the penalty set out in the notice.

Rules About Violations

Marginal note:Certain defences not available

• 133 (1) An employer, group of employers, bargaining agent or other person named in a notice of violation does not have a defence by reason that the employer, group of employers, bargaining agent or other person

  • (a) exercised due diligence to prevent the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the employer, group of employers, bargaining agent or other person.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse if the act or omission to which the violation relates could have been the subject of a charge for an offence under this Act but for section 135 applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Continuing violation

134 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Marginal note:For greater certainty

135 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation period

• 136 (1) No notice of violation may be issued in respect of a violation more than two years after the day on which the Pay Equity Commissioner becomes aware of the acts or omissions that constitute the alleged violation.

• Marginal note:Certification by Pay Equity Commissioner

  (2) A document appearing to have been issued by the Pay Equity Commissioner, certifying the day on which the acts or omissions that constitute the alleged violation became known to him or her, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and, in the absence of evidence to the contrary, is proof that the Pay Equity Commissioner became aware of the acts or omissions on that day.

Responsibility

Marginal note:Notices with penalty — payment

137 If a notice of violation sets out a penalty and the employer, group of employers, bargaining agent or other person named in the notice pays, within the time and in the manner specified in the notice, the amount of the penalty or the lesser amount set out in the notice,

• (a) they are deemed to have committed the violation in respect of which the amount is paid;

• (b) the Pay Equity Commissioner must accept that amount in complete satisfaction of the penalty; and

• (c) the proceedings commenced in respect of the violation are ended.

Marginal note:Failure to act

• 138 (1) An employer, bargaining agent or other person that neither pays a penalty set out in a notice of violation nor requests a review within the specified time is considered to have committed the violation and is liable for the penalty.

• Marginal note:Failure to act — group of employers

  (2) If a group of employers does not pay a penalty set out in a notice of violation or request a review within the specified time, each employer in the group of employers is considered to have committed the violation and is liable for the penalty.

Review

Marginal note:Request for review

• 139 (1) Instead of paying the penalty set out in a notice of violation or the lesser amount that may be paid in lieu of the penalty, the employer, group of employers, bargaining agent or other person named in the notice may, within 30 days after the day on which the notice is served or within any longer period that the Pay Equity Commissioner allows, and in the manner specified in the notice, file a request for review of the acts or omissions that constitute the violation or of the amount of the penalty, or both.

• Marginal note:Grounds for review

  (2) The request for review must state the grounds for review and describe the evidence that supports those grounds.

Marginal note:Variation or cancellation of notice of violation

140 At any time before a request for review is filed in accordance with section 139, the Pay Equity Commissioner may cancel the notice of violation or correct an error in it.

Marginal note:Review

141 On receipt of a request for review made under section 139, the Pay Equity Commissioner must review the facts of the alleged violation, the penalty or both, as the case may be.

Marginal note:Completion of review

• 142 (1) On completion of a review requested under section 139, the Pay Equity Commissioner must determine on a balance of probabilities whether, as the case may be, the employer, group of employers, bargaining agent or other person that requested the review committed the violation, the amount of the penalty was determined in accordance with regulations made under subsection 127(1), or both.

• Marginal note:Violation not committed — effect

  (2) If the Pay Equity Commissioner determines under subsection (1) that the employer, group of employers, bargaining agent or other person did not commit the violation, the proceedings commenced in respect of it are ended.

• Marginal note:Review — with respect to facts

  (3) On completion of a review with respect to the acts or omissions that constitute the alleged violation, if the Pay Equity Commissioner determines that the employer, group of employers, bargaining agent or other person committed the violation, the Pay Equity Commissioner may determine whether the amount of the penalty was determined in accordance with regulations made under subsection 127(1) and if he or she determines that it was not correctly determined, he or she must correct the amount.

• Marginal note:Review — with respect to penalty

  (4) On completion of a review with respect to the amount of the penalty, if the Pay Equity Commissioner determines that the amount of the penalty was not determined in accordance with the regulations, he or she must correct the amount.

• Marginal note:Decision

  (5) The Pay Equity Commissioner must cause the employer, each employer in the group of employers, the bargaining agent or the other person to be served with a notice that sets out his or her decision under this section and the reasons for it and, if the amount of the penalty was confirmed or corrected by the Pay Equity Commissioner, informs the employer, each employer in the group of employers, the bargaining agent or the other person of the time within which and the manner in which the penalty is to be paid.

• Marginal note:Obligation to pay

  (6) The employer, each employer in the group of employers, the bargaining agent or the other person is liable to pay, within the time and in the manner specified in the notice, the amount of the penalty confirmed or corrected by the Pay Equity Commissioner.

• Marginal note:Effect of payment

  (7) If the employer, any employer in the group of employers, the bargaining agent or the other person pays the amount referred to in subsection (6), the Pay Equity Commissioner must accept the amount in complete satisfaction of the penalty in respect of the violation and the proceedings commenced in respect of the violation are ended.

• Marginal note:Decision final

  (8) A decision made under this section is final and is not to be questioned or reviewed in any court.

Recovery of Penalties

Marginal note:Debt to Her Majesty

• 143 (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:

  • (a) the amount of a penalty, from the time the notice of violation setting out the amount of the penalty is served; and

  • (b) the amount of a penalty confirmed or corrected in the Pay Equity Commissioner’s notice of decision served under subsection 142(5), from the expiry of the time specified in the notice.

• Marginal note:Limitation or prescription period

  (2) No proceedings to recover the debt may be commenced after the expiry of five years after the day on which the debt became payable.

• Marginal note:Debt final

  (3) A debt referred to in subsection (1) is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 140 or 142.

Marginal note:Certificate

• 144 (1) Any debt referred to in subsection 143(1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Pay Equity Commissioner.

• Marginal note:Registration

  (2) Registration in the Federal Court of a certificate issued under subsection (1) has the same force and effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

General

Marginal note:Admissibility of documents

145 In the absence of evidence to the contrary, a document that appears to be a notice of violation served under subsection 132(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication

146 The Pay Equity Commissioner may make public

• (a) the name of an employer, each employer in a group of employers or a bargaining agent that is determined under section 142, or that is deemed by this Act, to have committed a violation;

• (b) the nature of the violation;

• (c) the amount of the penalty imposed; and

• (d) any other information specified by regulations made under paragraph 127(1)(j).

PART 8Dispute Resolution

Matters in Dispute, Objections and Complaints

Marginal note:Notice of matters in dispute

147 If a pay equity committee is established under this Act in respect of a pay equity plan, and if the members of the committee who represent employees and the members of the committee who represent the employer do not agree in respect of a matter at any step leading to the establishment or updating, as the case may be, of the pay equity plan, the employer, a bargaining agent or a member who represents non-unionized employees may notify the Pay Equity Commissioner of the particulars of the matters in dispute and if they do so, they must, as soon as feasible, notify the members of the committee that they have notified the Pay Equity Commissioner.

Marginal note:Notice of objection

148 If an employer, as opposed to a pay equity committee, carries out, in respect of a pay equity plan, all or any of the requirements, including as adapted by regulation, set out in sections 32 to 38 and 41 to 50, subsection 54(2) or any regulations that apply in respect of or in place of those sections, any employee to whom the pay equity plan relates — or, if any of those employees are unionized employees, any bargaining agent that represents any of those unionized employees — may, within 60 days after the day on which the pay equity plan is posted in accordance with section 55, subsection 57(2), section 83, subsection 85(2) or paragraph 94(1)(b), as the case may be, file a notice of objection with the Pay Equity Commissioner in respect of the pay equity plan that sets out the particulars of the objection.

Marginal note:Complaints — employees

• 149 (1) Any employee to whom a pay equity plan relates who has reasonable grounds to believe that there has been a contravention of any provision of this Act or the regulations — other than sections 32 to 51, 78 and 79 and any regulations made under any of paragraphs 181(1)(b) to (h) — or a contravention, in relation to that plan, of an order of the Pay Equity Commissioner or the Tribunal issued under this Act, and who is affected or is likely to be affected by the alleged contravention may, within 60 days after the day on which they become aware of the alleged contravention, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

• Marginal note:Complaints — employees

  (2) Any employee to whom a pay equity plan relates who has reasonable grounds to believe that the employer has attempted to influence or interfere with the selection by its non-unionized employees of members to represent them on a pay equity committee, or that the employer or a bargaining agent has acted in bad faith or in an arbitrary or discriminatory manner while exercising their powers or performing their duties and functions under this Act, and who is affected or is likely to be affected by the alleged behaviour may, within 60 days after the day on which they become aware of the alleged behaviour, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

Marginal note:Complaints — bargaining agents

• 150 (1) Any bargaining agent that represents unionized employees to whom a pay equity plan relates that has reasonable grounds to believe that there has been a contravention of any provision of this Act or the regulations — other than sections 32 to 51, 78 and 79 and any regulations made under any of paragraphs 181(1)(b) to (h) — or a contravention, in relation to that plan, of an order of the Pay Equity Commissioner or the Tribunal issued under this Act may, within 60 days after the day on which it becomes aware of the alleged contravention, if the alleged contravention affects or is likely to affect the employees to whom the pay equity plan relates, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

• Marginal note:Exception

  (2) Despite subsection (1), a bargaining agent does not have a right to file a complaint referred to in that subsection if the pay equity plan is established or updated without a pay equity committee, or, if section 28, 29, 76 or 77 applies, to file such a complaint in respect to any alleged contravention that takes place during the period in which the plan is established or updated without a committee.

• Marginal note:Complaints — bargaining agents

  (3) Any bargaining agent that represents unionized employees to whom a pay equity plan relates that has reasonable grounds to believe that the employer has attempted to influence or interfere with the selection by its non-unionized employees of members to represent them on a pay equity committee, or that the employer or another bargaining agent has acted in bad faith or in an arbitrary or discriminatory manner while exercising its powers or performing its duties and functions under this Act may, within 60 days after the day on which it becomes aware of the alleged behaviour, if the alleged behaviour affects or is likely to affect the employees to whom the pay equity plan relates, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

Marginal note:Complaints — employer

• 151 (1) If a pay equity committee is established under this Act in respect of a pay equity plan, an employer that has reasonable grounds to believe that a bargaining agent has contravened subsection 24(2) or an order of the Pay Equity Commissioner or the Tribunal issued under this Act may, if the employer is affected or is likely to be affected by the alleged contravention, within 60 days after the day on which it becomes aware of the alleged contravention, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

• Marginal note:Complaints — employer

  (2) If a pay equity committee is established under this Act in respect of a pay equity plan, an employer that has reasonable grounds to believe that a bargaining agent has acted in bad faith or in an arbitrary or discriminatory manner while exercising its powers or performing its duties and functions under this Act may, if the employer is affected or is likely to be affected by the alleged behaviour, within 60 days after the day on which it becomes aware of the alleged behaviour, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

Marginal note:Complaint to Pay Equity Commissioner

• 152 (1) Any person may file a complaint with the Pay Equity Commissioner if they believe that their employer or bargaining agent has taken reprisal against them in contravention of section 102 or 103. The complaint is to set out the particulars of the complaint.

• Marginal note:Time for making complaint

  (2) A complaint referred to in subsection (1) must be made to the Pay Equity Commissioner within 60 days after the day on which the person knew or, in the Pay Equity Commissioner’s opinion, ought to have known of the action or circumstances giving rise to the complaint.

• Marginal note:Burden of proof

  (3) A complaint made under subsection (1) is itself evidence that the reprisal was actually taken and, if a party to the complaint proceedings alleges that the reprisal was not taken, the burden of proof is on that party.

Marginal note:Extension of time

153 If the Pay Equity Commissioner considers it appropriate in the circumstances, he or she may extend the period within which a notice of objection or a complaint may be filed under any of sections 148 to 152.

Resolution by Pay Equity Commissioner

Marginal note:Role of Pay Equity Commissioner

• 154 (1) Subject to subsection (2), if a notice of a matter in dispute is received under section 147, or a notice of objection or a complaint is filed under any of sections 148 to 152, the Pay Equity Commissioner must

  • (a) attempt to assist the parties to settle all or any part of the matter that he or she considers appropriate for settlement; and

  • (b) determine, in accordance with sections 156 to 160 and subject to section 162, any matters that, in the Pay Equity Commissioner’s opinion, are either not appropriate for settlement or cannot be settled by the parties.

• Marginal note:Dismissal – reasons

  (2) The Pay Equity Commissioner may dismiss all or any part of a matter in dispute, objection or complaint if, in his or her opinion,

  • (a) it is trivial, frivolous, vexatious or made in bad faith;

  • (b) it is beyond the jurisdiction of the Pay Equity Commissioner; or

  • (c) its subject-matter has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under an Act of Parliament, other than this Act, or a collective agreement.

• Marginal note:Dismissal — late filing

  (3) Subject to section 153, the Pay Equity Commissioner must dismiss an objection or complaint if a notice of objection or a complaint was not filed within the period specified in section 148 to 152, as the case may be.

• Marginal note:Notice

  (4) The Pay Equity Commissioner must notify the parties, in writing, of his or her decision to dismiss all or any part of a matter in dispute, objection or complaint. The notice must set out the reasons for the decision and specify the time within which and the manner in which a party may request a review of the decision under section 161.

Marginal note:Voluntary settlement

• 155 (1) If the parties agree to settle all or any part of a matter in dispute, objection or complaint, with or without the assistance of the Pay Equity Commissioner, the parties must provide the Pay Equity Commissioner with the terms of the settlement, in writing.

• Marginal note:Effect of voluntary settlement

  (2) On receipt of the terms of a settlement, all or any part of the matter in dispute, objection or complaint that has been settled is deemed to be withdrawn unless the Pay Equity Commissioner is of the opinion that it is appropriate in the circumstances to continue to deal with it despite the settlement.

Marginal note:Investigation

• 156 (1) The Pay Equity Commissioner may conduct an investigation into all or any part of a matter in dispute, objection or complaint referred to in subsection 154(1).

• Marginal note:Joined investigation

  (2) If the Pay Equity Commissioner is of the opinion that two or more matters in dispute, objections or complaints involve substantially the same issues of fact or law, he or she may join the investigations into the matters in dispute, objections or complaints.

• Marginal note:Notification

  (3) The Pay Equity Commissioner must notify the parties when he or she commences an investigation.

• Marginal note:Discontinuance of investigation

  (4) The Pay Equity Commissioner may discontinue the investigation of all or any part of a matter in dispute, objection or complaint if he or she is of the opinion that

  • (a) there is insufficient evidence to pursue the investigation; or

  • (b) any of the circumstances mentioned in paragraphs 154(2)(a) to (c) applies.

• Marginal note:Notice of discontinuance

  (5) The Pay Equity Commissioner must notify the parties of his or her decision to discontinue all or any part of an investigation. The notice must set out the reasons for the decision and specify the time within which and the manner in which a party may request a review of the decision under section 161.

Marginal note:Determination of matter in dispute

• 157 (1) In order to determine a matter in dispute in respect of which the Pay Equity Commissioner has received notice under section 147, the Pay Equity Commissioner must, subject to subsection 155(2), give the employer, the bargaining agent, if the bargaining agent selected a person to be a member of the pay equity committee, and the member that represents non-unionized employee, if any, an opportunity to present evidence and make representations.

• Marginal note:Order settling matter in dispute

  (2) After giving the opportunity to present evidence and make representations under subsection (1), the Pay Equity Commissioner must make an order in writing settling the matter in dispute in respect of the establishment or updating of a pay equity plan. The order must specify the time within which and the manner in which it may be appealed.

• Marginal note:Effect of order

  (3) If specified in the order, the contents of the order are deemed to form part of the pay equity plan.

Marginal note:Determination of objection

• 158 (1) After concluding the investigation of an objection in respect of which a notice was filed under section 148, the Pay Equity Commissioner must,

  • (a) if he or she finds that all or any part of the objection is not substantiated, dismiss the objection in whole or in part; or

  • (b) if he or she finds that all or any part of the objection is substantiated, make an order in writing directing the employer to, within the time specified in the order,

    • (i) take any measures that the Pay Equity Commissioner considers appropriate in relation to the pay equity plan in question, including the payment of any differences in compensation and interest that are owed to employees in accordance with any of sections 60 to 63 or 88, with any adaptations that may be required, or

    • (ii) amend the pay equity plan.

• Marginal note:Amendments to pay equity plan

  (2) If the Pay Equity Commissioner makes an order under subparagraph (1)(b)(i) or (ii), the employer must provide to the Pay Equity Commissioner, within the time specified in the order, the amendments that have been made to the pay equity plan. If the Pay Equity Commissioner did not, under paragraph (1)(b), order the employer to pay any differences in compensation and interest, the employer must notify the Pay Equity Commissioner of any differences in compensation and interest payable to employees as a result of those amendments.

• Marginal note:Order to pay compensation and interest

  (3) If the Pay Equity Commissioner finds that the employer determined the differences in compensation and interest payable incorrectly, the Pay Equity Commissioner may order the employer to, within the time specified in the order, pay any difference in compensation and interest determined by the Pay Equity Commissioner.

• Marginal note:Integration of amendments to plan

  (4) The employer or group of employers, as the case may be, must integrate the amendments to the pay equity plan into the final version of the pay equity plan posted in accordance with subsection 55(1) or 57(2), section 83, subsection 85(2) or paragraph 94(1)(b), as the case may be. The employer — or, if applicable, each employer in a group of employers — must post a notice to inform employees to whom the plan relates of the amendments to the final version of the pay equity plan.

• Marginal note:Notice

  (5) The Pay Equity Commissioner must notify the parties, in writing, of his or her decision to dismiss all or any part of the objection. The notice must set out the reasons for the decision and specify the time within which and the manner in which the decision may be appealed.

Marginal note:Determination of complaint

• 159 (1) After concluding the investigation of a complaint filed under any of sections 149 to 151, the Pay Equity Commissioner must,

  • (a) if he or she finds that all or any part of the complaint is not substantiated, dismiss the complaint in whole or in part; or

  • (b) if he or she finds that all or any part of the complaint is substantiated,

    • (i) in respect of a complaint filed under any of subsections 149(1), 150(1) or 151(1), make an order in writing under section 119, or

    • (ii) in respect of a complaint filed under any of subsections 149(2), 150(3) or 151(2), make an order in writing requiring the employer or bargaining agent to terminate the behaviour within the time specified in the order or to take any measures specified in the order, within the time specified in the order, to ensure that the behaviour does not continue or reoccur.

• Marginal note:Order made under subparagraph (1)(b)(ii)

  (2) An order made under subparagraph (1)(b)(ii) must specify the time within which and the manner in which it may be appealed.

• Marginal note:Notice

  (3) The Pay Equity Commissioner must notify, in writing, the parties of his or her decision to dismiss all or any part of the complaint. The notice must set out the reasons for the decision and specify the time within which and the manner in which the decision may be appealed.

Marginal note:Determination — complaint about reprisal

• 160 (1) After concluding the investigation of a complaint filed under section 152, the Pay Equity Commissioner,

  • (a) must, if he or she finds that all or any part of the complaint is not substantiated, dismiss the complaint in whole or in part;

  • (b) must, if the complaint involves an alleged contravention of section 102 and he or she finds that all or any part of the complaint is substantiated, make an order in writing requiring the employer to cease engaging in or to rescind the reprisal and may, if applicable, make an order in writing requiring the employer to

    • (i) permit the employee who filed the complaint to return to the duties of their employment,

    • (ii) reinstate the employee,

    • (iii) pay to the employee a sum not exceeding the sum that, in the Pay Equity Commissioner’s opinion, is equivalent to the compensation that would, but for the reprisal, have been paid by the employer to the employee,

    • (iv) pay to the employee a sum not exceeding the sum that, in the Pay Equity Commissioner’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer, and

    • (v) do any other thing that the Pay Equity Commissioner considers equitable for the employer to do to remedy or counteract any consequence of the reprisal; or

  • (c) must, if the complaint involves an alleged contravention of section 103 and he or she finds that all or any part of the complaint is substantiated, make an order in writing requiring the bargaining agent to cease engaging in or to rescind the reprisal and may, if applicable, make an order in writing requiring the bargaining agent to

    • (i) reinstate or admit the person as a member of the trade union or employee organization,

    • (ii) rescind any reprisal taken in respect of and pay a sum to the person, not exceeding the sum that, in the Pay Equity Commissioner’s opinion, is equivalent to any financial or other penalty imposed on the person by the bargaining agent, and

    • (iii) do any other thing that the Pay Equity Commissioner considers equitable for the bargaining agent to do to remedy or counteract any consequence of the reprisal.

• Marginal note:Notice

  (2) The Pay Equity Commissioner must notify the parties, in writing, of his or her decision to dismiss all or any part of the complaint. The notice must set out the reasons for the decision and specify the time within which and the manner in which the decision may be appealed.

Review

Marginal note:Review

• 161 (1) A party to a matter in dispute, objection or complaint referred to in subsection 154(1) may, within 30 days after receiving notice of a decision made under subsection 154(2) or (3) or 156(4), request a review of that decision by the Pay Equity Commissioner.

• Marginal note:Extension of time

  (2) If the Pay Equity Commissioner considers it appropriate in the circumstances, he or she may extend the 30-day period within which a person may request a review under subsection (1).

• Marginal note:Grounds for review

  (3) The request for review must state the grounds for review and set out the evidence that supports those grounds.

• Marginal note:Review

  (4) On receipt of a request for review made under subsection (1), the Pay Equity Commissioner must review the decision.

• Marginal note:Powers

  (5) After concluding the review, the Pay Equity Commissioner must

  • (a) confirm the decision to dismiss some or all of the matter in dispute, objection or complaint;

  • (b) investigate any part of the matter in dispute, objection or complaint for which the decision to dismiss was not confirmed under paragraph (a);

  • (c) confirm the decision to discontinue the investigation of some or all of the matter in dispute, objection or complaint; or

  • (d) investigate any part of the matter in dispute, objection or complaint for which the decision to discontinue was not confirmed under paragraph (c).

• Marginal note:Decision

  (6) The Pay Equity Commissioner must cause the parties to be served with a notice that sets out the Pay Equity Commissioner’s decision under this section and the reasons for it.

• Marginal note:Decision final

  (7) Every decision made by the Pay Equity Commissioner under any of paragraphs (5)(a) to (d) is final and is not to be questioned or reviewed in any court.

Referral to Tribunal

Marginal note:Referral to Tribunal

162 At any stage after a notice of a matter in dispute is received under section 147, or a notice of objection or a complaint is filed under any of sections 148 to 152, the Pay Equity Commissioner may refer to the Chairperson of the Tribunal an important question of law or a question of jurisdiction which would, in the Pay Equity Commissioner’s opinion, be more appropriate for the Tribunal to determine.

Marginal note:Chairperson to institute inquiry

• 163 (1) On receipt of a referral under section 162, the Chairperson must institute an inquiry by assigning a member of the Tribunal, however the Chairperson may assign a panel of three members if he or she considers that the complexity of the question requires the inquiry to be conducted by three members.

• Marginal note:Chair of panel

  (2) If a panel of three members is assigned, the Chairperson must designate one of them to be its chair, but the Chairperson is to be the chair if he or she is a member of the panel.

• Marginal note:Qualification of member

  (3) If the referral involves a question about whether another Act or a regulation made under another Act is inconsistent with this Act or a regulation made under it, the member assigned to the inquiry or, if three members have been assigned, the member chairing the inquiry, must be a member of the bar of a province or the Chambre des notaires du Québec.

• Marginal note:Question raised subsequently

  (4) If a question as described in subsection (3) arises after a member or panel has been assigned and the requirements of that subsection are not met, the inquiry is to nevertheless proceed with the designated member or panel.

Marginal note:Conduct of inquiry

• 164 (1) Subject to subsection (2), after due notice to the Pay Equity Commissioner, the parties to the matter at issue and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel must inquire into the question.

• Marginal note:Dismissal of inquiry

  (2) At any stage of an inquiry into a question requested under section 162, the panel or member conducting the inquiry may dismiss the question if the panel or member is satisfied

  • (a) in the case of a question of jurisdiction, that an inquiry is not warranted; or

  • (b) in the case of any question, that it would be more appropriate in the circumstances for the Pay Equity Commissioner to determine the question.

• Marginal note:Additional powers

  (3) In relation to a hearing of the inquiry, the member or panel may

  • (a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the question;

  • (b) administer oaths;

  • (c) subject to subsection (4), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law;

  • (d) lengthen or shorten any time limit established by the rules of procedure established under subsection 48.9(2) of the Canadian Human Rights Act; and

  • (e) decide any procedural or evidentiary question arising during the hearing.

• Marginal note:Limitation in relation to evidence

  (4) The member or panel must not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

• Marginal note:Witness fees

  (5) Any person summoned to attend the hearing is entitled in the discretion of the member or panel to receive the same fees and allowances as those paid to persons summoned to attend before the Federal Court.

Marginal note:Duty of Pay Equity Commissioner on appearing

165 The Pay Equity Commissioner may participate in any inquiry before the member or panel conducting the inquiry if he or she receives notice under subsection 164(1). If he or she participates at an inquiry, then the Pay Equity Commissioner must adopt a position that, in his or her opinion, is in the public interest.

Marginal note:Hearing in public subject to confidentiality order

• 166 (1) A hearing must be conducted in public, but the member or panel conducting the inquiry may, on application, take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the hearing if the member or panel is satisfied, during the hearing or as a result of the hearing being conducted in public, that

  • (a) there is a real and substantial risk that matters involving public security will be disclosed;

  • (b) there is a real and substantial risk to the fairness of the hearing such that the need to prevent disclosure outweighs the societal interest that the hearing be conducted in public;

  • (c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the hearing be conducted in public; or

  • (d) there is a serious possibility that the life, liberty or security of a person will be endangered.

• Marginal note:Confidentiality of application

  (2) If the member or panel considers it appropriate, the member or panel may take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (1).

Marginal note:Determination

• 167 (1) Subject to subsection 155(2), at the conclusion of an inquiry into a question of law or jurisdiction referred to the Chairperson of the Tribunal under section 162, the member or panel must determine the question and provide a copy of the determination to the Pay Equity Commissioner and the parties given notice under subsection 164(1).

• Marginal note:Posting of determination

  (2) The member or panel may require an employer — or, if applicable, each employer in a group of employers — to post any determination referred to in subsection (1).

• Marginal note:Panel’s decision

  (3) A decision made by a majority of the members of the panel is the decision of the panel or, if no decision is supported by the majority, the decision of the panel’s chair is the decision of the panel.

Appeal

Marginal note:Appeal — decision or order

• 168 (1) An employer, bargaining agent or other person that is affected by a decision made under paragraph 158(1)(a), 159(1)(a) or 160(1)(a) or an order made under section 119, subsection 157(2), paragraph 158(1)(b), subsection 158(3), subparagraph 159(1)(b)(ii) or paragraph 160(1)(b) or (c) may appeal the decision or order to the Tribunal, in writing, within 30 days after the day on which a copy of the order or notice of the decision is served.

• Marginal note:Order in effect

  (2) An order made under section 119, subsection 157(2), paragraph 158(1)(b), subsection 158(3), subparagraph 159(1)(b)(ii) or paragraph 160(1)(b) or (c) continues to apply during an appeal unless the Tribunal decides otherwise.

• Marginal note:Grounds for appeal

  (3) The application for appeal must state the grounds for appeal and describe the evidence that supports those grounds.

Marginal note:Assignment of member

• 169 (1) On receipt of an application for an appeal, the Chairperson of the Tribunal must assign a member of the Tribunal to hear the appeal, however the Chairperson may assign a panel of three members of the Tribunal to hear the appeal if he or she considers that the complexity of the matters under appeal requires three members.

• Marginal note:Chair of panel

  (2) If a panel of three members is assigned, the Chairperson must designate one of them to be its chair, but the Chairperson is to be the chair if he or she is a member of the panel.

Marginal note:Decision

• 170 (1) The member or panel of members of the Tribunal assigned to hear an appeal may, by order, confirm, vary or rescind the decision or order to which the appeal relates, or refer the decision to which the appeal relates back to the Pay Equity Commissioner for redetermination in accordance with any directions that the member or panel of members considers to be appropriate.

• Marginal note:Other terms

  (2) In addition, the member or panel of members may include in the order any terms that the member or panel, as the case may be, considers equitable to remedy or counteract any consequence of the matter under appeal.

• Marginal note:Panel’s decision

  (3) A decision made by a majority of the members of the panel is the decision of the panel or, if no decision is supported by the majority, the decision of the panel’s chair is the decision of the panel.

• Marginal note:Copy of decision or order

  (4) The member or panel of members must provide a copy of any decision or order made under subsection (1) or (2) to the Pay Equity Commissioner and to the parties to the appeal.

Marginal note:Decision final

171 Every decision made under section 170 is final and is not to be questioned or reviewed in any court.

PART 9Ministerial Staff

Marginal note:Definition of Minister

172 In section 173, minister has the same meaning as in subsection 2(1) of the Public Service Employment Act.

Marginal note:Application

• 173 (1) This Act and section 40.2 of the Canadian Human Rights Act apply, subject to the regulations, with respect to any person appointed by a minister under subsection 128(1) of the Public Service Employment Act as if they were an employee as defined in subsection 3(1) of this Act and their employer were an employer referred to in paragraph 3(2)(a) of this Act, except that, for the purpose of that application, the Governor in Council may, by order, group two or more ministers’ offices for the purpose of establishing and updating a single pay equity plan for any such grouping.

• Marginal note:Exclusion

  (2) Despite subsection (1), nothing in this Act or section 40.2 of the Canadian Human Rights Act applies with respect to any person appointed as a student staff member by a minister under subsection 128(1) of the Public Service Employment Act.

PART 10Miscellaneous Provisions

Marginal note:Wages

174 An employee who is party to, or has been summoned to attend at, a proceeding before the Tribunal under this Act and who attends is entitled to be paid by the employer at the employee’s regular rate of wages for the time spent at the proceeding that would otherwise have been time at work.

Marginal note:Manner and form

175 The Pay Equity Commissioner may establish the manner and form for submitting or filing notices, applications and complaints that are to be submitted to or filed with the Pay Equity Commissioner.

Marginal note:Posting of documents

176 The Pay Equity Commissioner may require an employer — or, if applicable, each employer in a group of employers — to post any decision, order, notice of violation or other document issued by that Commissioner.

Marginal note:Copies as evidence

177 Any document purporting to be certified by the Pay Equity Commissioner to be a copy of or extract from a document, or to be a printout of or extract from electronic data, made under paragraph 118(3)(e) or subsection 118(5) is evidence of the nature and content of the original document or data and has the same probative force as the original document or data would have if it were proven in the ordinary way.

Marginal note:Immunity

178 No action or other proceeding of a civil nature lies against the Pay Equity Commissioner, or any person acting on behalf or under the direction of that Commissioner, in respect of anything that is done or omitted to be done in good faith while exercising or purporting to exercise their powers or performing or purporting to perform their duties and functions under this Act.

Marginal note:Evidence in civil suits precluded

179 The Pay Equity Commissioner, his or her delegate, any person who has accompanied or assisted the Pay Equity Commissioner in carrying out his or her duties and functions, and any member of the Tribunal is not competent or compellable to appear as a witness in any civil action, suit or other proceeding between private parties respecting information obtained in the exercise of their powers or the performance of their duties and functions.

Marginal note:Enforcement of order

180 An order made under subsection 91(1) or 118(4), section 119, subsection 120(1) or 157(2), paragraph 158(1)(b), subsection 158(3), subparagraph 159(1)(b)(ii), paragraph 160(1)(b) or (c) or subsection 170(1) or (2) may, for the purpose of enforcement, be made an order of the Federal Court by following the usual procedure or by the Pay Equity Commissioner filing in the Registry of that court a copy of the order certified by the Pay Equity Commissioner to be a true copy.

Marginal note:Regulations

• 181 (1) The Governor in Council may make regulations

  • (a) exempting, with or without conditions, any employer, employee or position, or any class of employers, employees or positions, from the application of any provision of this Act;

  • (b) prescribing a manner for determining the monetary value of any forms of remuneration payable for work performed by an employee, for the purpose of the calculation of the compensation associated with a job class;

  • (c) respecting the obligations of an employer or, if a pay equity committee has been established, that committee, in regards to the determination of differences in compensation for the purpose of section 60, when the employer or committee, as the case may be, has determined that there are no predominantly male job classes, including its obligations in relation to the determination, based on different criteria than those set out in sections 36 to 38, of the predominantly female or predominantly male job classes;

  • (d) providing for changes to the information required to be included in a pay equity plan under section 51 — or setting out additional information required to be included in it — as a result of regulations made under paragraph (c);

  • (e) establishing methods of calculating factors for the purpose of paragraphs 49(1)(d) and 50(1)(c);

  • (f) adapting the rules, criteria and factors set out in sections 32 to 50 for the purpose of their being applied under subsection 78(1);

  • (g) specifying, for the purpose of subsection 78(1), any changes that are to be excluded for the purpose of the revision of a pay equity plan;

  • (h) specifying the changes that are required to be included in the document referred to in subsection 79(2);

  • (i) respecting the posting of anything that is required to be posted under this Act, including the accessibility of the thing posted;

  • (j) respecting lump sums under subsection 88(2);

  • (k) respecting the submission to the Pay Equity Commissioner, by employers, of any document that they are required to retain under this Act, including the time, manner and form in which they are to be submitted;

  • (l) prescribing rules respecting the confidentiality or disclosure of any information obtained under this Act;

  • (m) prescribing any additional conditions or parameters related to the use of internal audits referred to in section 120;

  • (n) prescribing the time within which notices — other than a notice under section 147 or 148 — and applications are to be submitted to or filed with the Pay Equity Commissioner;

  • (o) prescribing any conditions or criteria that an employer or group of employers must meet in order for the Pay Equity Commissioner to grant an authorization under section 108, 109 or 112;

  • (p) respecting the application of this Act with respect to any person appointed by a minister, as defined in section 172, under subsection 128(1) of the Public Service Employment Act, including in order to

    • (i) exempt from the application of any provision of this Act or the regulations, with or without conditions, all persons or classes of persons so appointed or any position or employer, class of positions or employers or minister’s office or grouping of ministers’ offices created by an order made under subsection 173(1), and

    • (ii) provide that any provision of this Act or the regulations applies to all persons or classes of persons so appointed or to any position or employer, class of positions or employers or minister’s office or grouping of ministers’ offices created by an order made under subsection 173(1) in the manner and to the extent provided for in the regulations made under this paragraph and adapt that provision for the purpose of that application;

  • (q) prescribing anything that is to be prescribed under this Act; and

  • (r) generally, for carrying out the purposes and provisions of this Act.

• Marginal note:Adaptation of Act to certain employers

  (2) The Governor in Council may make regulations to adapt any provision of this Act or the regulations to accommodate employers referred to in section 11.

Marginal note:Regulations

182 The Pay Equity Commissioner may, with the approval of the Governor in Council, make regulations

• (a) respecting the service of documents under this Act, other than Part 7, including the documents or types of documents that must be served, the manner and proof of service and the circumstances under which documents are deemed to be served; and

• (b) prescribing the procedures to be followed for the purposes of section 118, 121, 154, 156 or 161.

Marginal note:Non-application of Statutory Instruments Act

183 The Statutory Instruments Act does not apply in respect of orders made under subsection 91(1) or 118(4), section 119, subsection 120(1) or 157(2), paragraph 158(1)(b), subsection 158(3), subparagraph 159(1)(b)(ii), or paragraph 160(1)(b) or (c).

Marginal note:Review by Senate and House of Commons

• 184 (1) Ten years after the day on which this subsection comes into force, or as soon as feasible after that tenth year anniversary, and every five years after that, a comprehensive review of the provisions and operation of this Act and Part II.1 of the Parliamentary Employment and Staff Relations Act is to be commenced by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate, the House of Commons or both Houses of Parliament, as the case may be, for that purpose.

• Marginal note:Report

  (2) Within six months, or any further time that is authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, after the day on which the review is completed, the committee must submit a report on that review to the Senate, the House of Commons or both Houses of Parliament, as the case may be, together with a statement of any changes recommended by the committee.