Public Sector Equitable Compensation Act
S.C. 2009, c. 2, s. 394
Assented to 2009-03-12
An Act respecting the provision of equitable compensation in the public sector of Canada
Preamble
Whereas Parliament affirms that women in the public sector of Canada should receive equal pay for work of equal value;
Whereas Parliament affirms that it is desirable to accomplish that goal through proactive means;
And whereas employers in the public sector of Canada operate in a market-driven economy;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short Title
Marginal note:Short title
1 This Act may be cited as the Public Sector Equitable Compensation Act.
Interpretation
Marginal note:Definitions
2 (1) The following definitions apply in this Act.
bargaining agent
agent négociateur
bargaining agent means an employee organization that is certified by the Board as the bargaining agent for the employees in a bargaining unit. (agent négociateur)
bargaining unit
unité de négociation
bargaining unit means a group of two or more employees that is determined by the Board to constitute a unit of employees appropriate for collective bargaining. (unité de négociation)
Board
Commission
Board means the Public Service Labour Relations Board. (Commission)
collective agreement
convention collective
collective agreement means an agreement in writing, entered into under Part 1 of the Public Service Labour Relations Act between the employer and a bargaining agent, containing provisions respecting terms and conditions of employment and related matters. (convention collective)
compensation
rémunération
compensation means any form of remuneration payable for work performed by an employee and includes
(a) salaries, commissions, vacation pay, sev- erance 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)
employee
employé
employee means a person who is employed by an employer, other than a person who is
(a) appointed by the Governor in Council under an Act of Parliament to a statutory position described in that Act; or
(b) locally engaged outside Canada. (employé)
employer
employeur
employer means Her Majesty in right of Canada as represented by
(a) the Treasury Board, in the case of a department named in Schedule I to the Financial Administration Act or another portion of the federal public administration named in Schedule IV to that Act; and
(b) the separate agency, in the case of a portion of the federal public administration named in Schedule V to the Financial Administration Act. (employeur)
female predominant
à prédominance féminine
female predominant, in relation to a job group or a job class, means a job group or job class, as the case may be, composed of at least 70% female employees. (à prédominance féminine)
job class
catégorie d’emplois
job class means two or more positions in the same job group that have similar duties and responsibilities, require similar qualifications, are part of the same compensation plan and are within the same range of salary rates. (catégorie d’emplois)
job group
groupe d’emplois
job group has the meaning assigned by the regulations. (groupe d’emplois)
non-unionized employee
employé non syndiqué
non-unionized employee means an employee who is not a member of a bargaining unit that is represented by a bargaining agent. (employé non syndiqué)
prescribed
Version anglaise seulement
prescribed means prescribed by regulation. (Version anglaise seulement)
unionized employee
employé syndiqué
unionized employee means an employee who is a member of a bargaining unit that is represented by a bargaining agent. (employé syndiqué)
Marginal note:Royal Canadian Mounted Police
(2) For greater certainty, members of the Royal Canadian Mounted Police are employees for the purposes of this Act.
Marginal note:Canadian Forces
(3) For the purposes of this Act,
(a) officers and non-commissioned members of the Canadian Forces are deemed to be employees; and
(b) Her Majesty in right of Canada, as represented by the Treasury Board, is deemed to be the employer of those officers and members.
Obligation to Provide Equitable Compensation
Marginal note:Obligations of employers and bargaining agents
3 (1) An employer shall, in respect of its non-unionized employees, take measures to provide them with equitable compensation in accordance with this Act. In the case of unionized employees, the employer and the bargaining agent shall take measures to provide those employees with equitable compensation in accordance with this Act.
Marginal note:Notice to employees
(2) Every employer shall post, in the prescribed manner, a notice setting out the text of subsection (1) and describing the rights employees have under this Act.
Equitable Compensation Assessment
Marginal note:Equitable compensation assessment
4 (1) An equitable compensation assessment under this Act assesses, without gender bias, the value of work performed by employees in a job group or a job class and identifies, by taking into account the prescribed factors, whether an equitable compensation matter exists.
Marginal note:Determining value
(2) The criteria to be applied in assessing the value of the work performed by employees in a job group or a job class are
(a) the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed; and
(b) the employer’s recruitment and retention needs in respect of employees in that job group or job class, taking into account the qualifications required to perform the work and the market forces operating in respect of employees with those qualifications.
Marginal note:Precision
(3) Subject to the regulations, an equitable compensation assessment in respect of a job group or job class is to be conducted having regard to
(a) with the exception of a job group or job class described in paragraph (d), in the case of a job group or job class within a portion of the federal public administration, including a department, described in paragraph (a) of the definition employer in subsection 2(1), only job groups or job classes, as the case may be, within any of those portions of the federal public administration, other than job groups or job classes described in paragraph (d);
(b) in the case of a job group or job class within a separate agency named in Schedule V to the Financial Administration Act, only job groups or job classes, as the case may be, within the separate agency;
(c) in the case of a job group or job class within the Canadian Forces, only job groups or job classes, as the case may be, within the Canadian Forces that consist of officers and non-commissioned members of the Canadian Forces; and
(d) in the case of a job group or job class within the Royal Canadian Mounted Police that consists of members of that organization, only job groups or job classes, as the case may be, within that organization that consist of such members.
Marginal note:Equitable compensation matter
(4) An equitable compensation matter exists in respect of a job group or a job class if an equitable compensation assessment determines, after taking into account the prescribed factors referred to in subsection (1), that equitable compensation is not being provided to employees in that job group or job class.
Marginal note:Regulations
(5) The Governor in Council may make regulations
(a) respecting, for the purposes of subsection (1), the conducting of an equitable compensation assessment;
(b) respecting, for the purposes of paragraph (2)(a), what constitutes the skill, effort and responsibility required in the performance of work and the conditions under which the work is performed;
(c) respecting, for the purposes of paragraph (2)(b), what constitutes qualifications, and how an employer’s recruitment and retention needs are to be determined; and
(d) restricting, for the purposes of subsection (3), the job groups or job classes to which an equitable compensation assessment is to have regard.
Employers with Non-unionized Employees
Obligations
Marginal note:Determining whether each job group is female predominant
5 Within each of the periods that is prescribed in respect of a job group, every employer that has non-unionized employees in that job group shall determine whether that job group is female predominant and, depending on the determination, comply with section 6 or 7.
Marginal note:Determination — no female predominant job groups
6 (1) If an employer that has non-unionized employees determines that there are no female predominant job groups that contain at least the prescribed number of employees, the employer shall post, in the prescribed manner, for at least 90 days, a notice to that effect setting out the prescribed information.
Marginal note:Dissatisfaction with employer’s determination
(2) A non-unionized employee who is dissatisfied with his or her employer’s determination in the notice because the employee believes that he or she is part of a job group that contains at least the prescribed number of employees that is female predominant may, in the prescribed manner, so notify the employer within the prescribed period after the day on which the notice referred to in subsection (1) is first posted.
Marginal note:Employer’s response
(3) Within the prescribed period after the day on which the notice under subsection (2) is given, the employer shall consider the issues raised in the notice and provide the employee with a response in writing.
Marginal note:Determination — existence of female predominant job group
7 (1) If an employer that has non-unionized employees determines that a job group that contains at least the prescribed number of employees is female predominant, the employer shall
(a) determine, by conducting an equitable compensation assessment, whether any equitable compensation matters exist involving non-unionized employees in that job group and, if there are, prepare a plan to resolve them within a reasonable time; and
(b) provide non-unionized employees in that job group, in the prescribed manner, with a report that
(i) sets out a summary of the activities conducted by the employer under paragraph (a) and of consultations, if any, carried out under that paragraph,
(ii) describes how the equitable compensation assessment in respect of that job group was conducted,
(iii) states whether or not the employer has determined that an equitable compensation matter exists involving non-unionized employees in that job group and, if there is, describing the matter, and
(iv) sets out the plan prepared under paragraph (a), if one was prepared.
Marginal note:Right of non-unionized employee
(2) A non-unionized employee of that job group may, in the prescribed manner, within the prescribed period after the day on which the employer provides the employee with the report, request that the employer take appropriate steps to provide him or her with equitable compensation within a reasonable time if the employee is of the opinion that he or she will not receive equitable compensation because his or her employer has not prepared a plan under paragraph (1)(a) or, if one was prepared, the plan, in the employee’s opinion, does not provide for equitable compensation within a reasonable time.
Marginal note:Response
(3) Within the prescribed period after the day on which the request is made, the employer shall consider the matters raised in it and respond to the employee in writing. The employer shall indicate in the response whether it intends to take any measure as a result of the request and
(a) if so, the period during which that measure is to be implemented; or
(b) if not, the reasons for not doing so.
Marginal note:Implementation of plan
8 (1) An employer that has non-unionized employees and that provides a report under paragraph 7(1)(b) or as a result of an order made under this Act — or under a response given under subsection 7(3) or 9(3) — that contains a plan shall implement the plan in accordance with its terms.
Marginal note:When obligation ceases
(2) Subsection (1) ceases to apply in respect of a plan if the employer subsequently provides another plan under this Act that deals with the same job group or job class, as the case may be.
Marginal note:Request concerning equitable compensation — job class
9 (1) A non-unionized employee of an employer may, in the prescribed manner, within the prescribed period, request that the employer take appropriate steps to provide him or her with equitable compensation within a reasonable time if the employee has reasonable grounds to believe
(a) that he or she is a member of a female predominant job class; and
(b) that an equitable compensation assessment conducted in respect of that job class would lead to the identification of an equitable compensation matter.
Marginal note:Information that must be provided
(2) The employee who makes the request shall, in the prescribed manner, provide the employer with a statement that
(a) describes the female predominant job class of which the employee alleges he or she is a member; and
(b) sets out the reasonable grounds that the employee has to believe the matters referred to in paragraphs (1)(a) and (b).
Marginal note:Response
(3) Within the prescribed period after the day on which the request is made, the employer shall consider the matters raised in it and respond to the employee in writing. The employer shall indicate in the response whether it intends to take any measure as a result of the request and
(a) if so, the period during which that measure is to be implemented; or
(b) if not, the reasons for not doing so.
Complaints
Marginal note:Failure to comply
10 A non-unionized employee may, in a form acceptable to the Board, file a complaint with the Board if the employee is of the opinion that his or her employer has failed to comply with section 5 or subsection 6(1) or (3), 7(1) or (3), 8(1) or 9(3).
Marginal note:Dissatisfaction with employer’s response
11 (1) A non-unionized employee who is provided with a response under subsection 9(3) may, in a form acceptable to the Board, within the prescribed period after the response is provided, file a complaint with the Board if
(a) the employee is dissatisfied with any matter in the response; and
(b) the employee has reasonable grounds to believe
(i) that he or she is a member of a female predominant job class, and
(ii) that an equitable compensation assessment conducted in respect of that job class would lead to the identification of an equitable compensation matter.
Marginal note:Information that must be provided
(2) The complaint must
(a) describe the female predominant job class of which the employee alleges he or she is a member; and
(b) set out the reasonable grounds that the employee has to believe the matters referred to in subparagraphs (1)(b)(i) and (ii).
Marginal note:Accompanying documents
(3) The complaint must be accompanied by a copy of
(a) the employee’s request made under subsection 9(1); and
(b) the employer’s response given under subsection 9(3).
Employers with Unionized Employees
Obligations
Marginal note:Provision of statement setting out number of employees — collective agreement in force
12 (1) Within the prescribed period before the expiry of the term of a collective agreement between an employer and a bargaining agent and in the prescribed manner, the employer shall provide the bargaining agent with a statement that sets out, in respect of each job group that consists in whole or in part of members of bargaining units that are represented by the bargaining agent, the number of employees that form part of that job group and the number of employees in that job group that are males and the number that are females. If the bargaining agent has not already made the statement available to all those employees, the bargaining agent shall make a copy of it available to any of them who request it.
Marginal note:Provision of statement setting out number of employees — no collective agreement
(2) If there is no collective agreement between an employer and a bargaining agent but that bargaining agent has been certified to represent employees in a bargaining unit that consists in whole or in part of the employer’s employees, the employer shall, at the request of the bargaining agent, provide the bargaining agent with a statement that sets out, in respect of each job group that consists in whole or in part of employees who are members of that bargaining unit, the number of the employees that form part of that job group and the number of employees in that job group that are males and the number that are females. If the bargaining agent has not already made available any statement that it has received to all those employees, the bargaining agent shall make a copy of it available to any of them who request it.
Marginal note:Preparatory work
13 An employer and a bargaining agent shall, before collective bargaining begins, each conduct preparatory work to enable it, during collective bargaining, to raise or to respond to questions concerning the provision of equitable compensation to employees in female predominant job groups.
Marginal note:Notice describing female predominant job group
14 An employer or a bargaining agent that intends to negotiate collectively in respect of the provision of equitable compensation to employees in a female predominant job group shall, without delay, provide the other party with a notice that identifies the female predominant job group concerned.
Marginal note:Report in relation to equitable compensation matters
15 An employer or a bargaining agent that raises any equitable compensation matter in the course of collective bargaining in respect of a female predominant job group shall, without delay, provide the other party with a report that
(a) identifies the female predominant job group to which the matter relates;
(b) describes how the equitable compensation assessment was conducted in respect of that female predominant job group; and
(c) sets out how the equitable compensation matter should be resolved.
Marginal note:Collective agreement
16 The provisions of a collective agreement between an employer and a bargaining agent in relation to equitable compensation may not be inconsistent with section 113 of the Public Service Labour Relations Act.
Arbitration
Marginal note:Arbitration
17 If arbitration has been chosen under subsection 104(1) of the Public Service Labour Relations Act as, or is, by reason of subsection 104(2) of that Act, the process for the resolution of disputes, questions concerning the provision of equitable compensation to employees may be the subject of a request for arbitration under subsection 136(1) of that Act.
- 2009, c. 2, s. 394 “17”
- 2013, c. 40, s. 361
Marginal note:Obligations of arbitration body
18 The body seized of a request for arbitration under the Public Service Labour Relations Act that includes questions concerning the provision of equitable compensation to employees shall, in the absence of any agreement by the parties, determine whether any job group is female predominant and, if it determines that it is, determine how the equitable compensation assessment in respect of that job group is to be conducted.
Marginal note:Arbitral award
19 (1) The body seized of a request for arbitration under the Public Service Labour Relations Act that includes equitable compensation matters shall, subject to section 150 of that Act, make an arbitral award that sets out a plan to resolve those matters within a reasonable time.
Marginal note:Report
(2) As soon as feasible after making an arbitral award that sets out a plan referred to in subsection (1), the body making the award shall prepare and make available to the Chairperson of the Board, in the prescribed manner, a report that
(a) sets out how the equitable compensation assessment in respect of every female predominant job group to which the award relates was conducted; and
(b) if the body has decided that an equitable compensation matter exists, specifies whether or not that matter is to be resolved during the term of the arbitral award.
Marginal note:Copy to employer and bargaining agent
(3) On receipt of the report, the Chairperson of the Board shall, without delay, send a copy to the employer and the bargaining agent concerned and may cause the report to be published in any manner that the Chairperson considers appropriate.
Conciliation
Marginal note:Conciliation
20 If conciliation is the process for the resolution of disputes by reason of section 103 of the Public Service Labour Relations Act, questions concerning the provision of equitable compensation to employees may be the subject of a request for conciliation under subsection 161(1) of that Act.
- 2009, c. 2, s. 394 “20”
- 2013, c. 40, s. 362
Marginal note:Obligations of public interest commission seized of request for conciliation
21 A public interest commission seized of a request for conciliation under the Public Service Labour Relations Act that includes questions concerning the provision of equitable compensation to employees shall
(a) determine, in the absence of any agreement by the parties, whether any job group is female predominant and, if it determines that it is, recommend how the equitable compensation assessment in respect of that job group should be conducted; and
(b) include in its report, subject to section 177 of the Public Service Labour Relations Act, recommendations that, if accepted by the parties, would result in the provision of equitable compensation to the employees concerned.
Ratification
Marginal note:Obligation to prepare report
22 Before a bargaining agent submits a proposed collective agreement to employees for ratification, the employer and the bargaining agent shall jointly prepare and make available, in the prescribed manner, to the employees to whom the proposed collective agreement relates, a report that
(a) sets out how the equitable compensation assessment in respect of every female predominant job group was conducted; and
(b) if, in the course of the bargaining that led to the proposed collective agreement, the employer and the bargaining agent have determined that an equitable compensation matter exists, describes the matter and specifies whether that matter is to be resolved during the term of the proposed collective agreement and if not, the reasonable time within which it is to be resolved.
Complaints
Marginal note:Failure to comply
23 A unionized employee may, in a form acceptable to the Board, file a complaint with the Board if the employee has reasonable grounds to believe that his or her employer or bargaining agent has failed to comply with section 12.
Marginal note:Lack of equitable compensation
24 (1) An employee who is bound by a collective agreement entered into by an employer and a bargaining agent may, in a form acceptable to the Board, within 60 days after the day on which the collective agreement was entered into, file a complaint with the Board if
(a) the employee has reasonable grounds to believe
(i) that he or she is a member of a female predominant job class, and
(ii) that an equitable compensation assessment conducted in respect of that job class would lead to the identification of an equitable compensation matter; and
(b) the employee is of the opinion that he or she will not receive equitable compensation during the term of that collective agreement or within a reasonable period after the expiry of that term.
Marginal note:Information that must be provided
(2) The complaint must
(a) describe the female predominant job class of which the employee alleges he or she is a member; and
(b) set out the reasonable grounds the employee has to believe the matters referred to in subparagraphs (1)(a)(i) and (ii).
Public Service Labour Relations Board
General
Marginal note:Application of Public Service Labour Relations Act
25 (1) The provisions of the Public Service Labour Relations Act apply, with any modifications that the circumstances require, in relation to any complaint or order made under this Act as though the complaint or order were a complaint or order, as the case may be, made under that Act.
Marginal note:Regulations
(2) The Board may make regulations concerning the procedure in respect of the making or hearing of complaints under this Act and any other matter that is incidental or conducive to the exercise of its powers and the performance of its functions under this Act.
Marginal note:Power to extend period
26 The Board may extend the period for filing a complaint under this Act by up to 60 days if it is satisfied that exceptional circumstances justify the extension.
Marginal note:Notice to employer and bargaining agent
27 The Board shall send a copy of every complaint filed with it under this Act, together with all of the information accompanying it, to the employer or bargaining agent, as the case may be — or, in the case of a complaint filed under section 24, to the employer and the bargaining agent — to whom the complaint relates.
Marginal note:Obligation to deal with every complaint
28 (1) The Board shall deal with every complaint filed with it under this Act unless it appears to the Board that the complaint is trivial, frivolous or vexatious or was made in bad faith.
Marginal note:Notice to employee
(2) If the Board decides not to deal with a complaint, it shall send a written notice of its decision and the reasons for it to the employee who filed the complaint and to the employer or bargaining agent, as the case may be — or, in the case of a complaint filed under section 24, to the employer and the bargaining agent — to whom the complaint relates.
Complaints Filed by Non-unionized Employees
Marginal note:Complaints under section 10
29 The Board may, in respect of a complaint filed under section 10, dismiss the complaint or, by order, if the Board determines that the employer has failed to comply with section 5 or subsection 6(1) or (3), 7(1) or (3), 8(1) or 9(3) direct the employer to comply with that provision within the period specified by the Board in the order.
Marginal note:Complaints under section 11
30 (1) The Board may, in respect of a complaint filed under section 11, dismiss the complaint or, by order, require the employer to file with the Board, within the period specified by it in the order, a report that sets out the following, in respect of the female predominant job class of which the complainant is, according to the Board, a member:
(a) how the employer has, since the making of the order, conducted an equitable compensation assessment in respect of the job class; and
(b) if the equitable compensation assessment identified an equitable compensation matter in respect of the job class, the employer’s plan to resolve that matter within a reasonable period.
Marginal note:Power if employer has committed manifestly unreasonable error
(2) If, after receiving a report required by an order made under subsection (1), the Board is of the opinion that the employer has committed an error that is manifestly unreasonable in conducting an equitable compensation assessment or that the employer’s plan fails to make reasonable progress toward resolving an equitable compensation matter, the Board may, by order, require the employer to
(a) take measures to correct the error or to alter the plan in such a way that it makes reasonable progress toward resolving the equitable compensation matter; and
(b) file a report with the Board, within the period specified by it in the order, describing the measures that the employer has taken.
Marginal note:Power to determine equitable compensation matter
(3) If, after receiving a report required by an order made under subsection (2), the Board is of the opinion that the employer has committed an error that is manifestly unreasonable in the fulfilment of its obligations to take the measures referred to in paragraph (2)(a), the Board shall determine, by having regard to the equitable compensation assessment conducted by the employer or by itself conducting an equitable compensation assessment in respect of the female predominant job class of which the complainant is, according to the Board, a member, if any equitable compensation matters exist in respect of the job class and, if it determines that there are, the Board may, by order, require the employer to
(a) pay the complainant a lump sum as compensation with respect to the matter in relation to the period that begins on the day specified by the Board, which day may not be earlier than the day determined under subsection (4), and that ends on the day on which the order is made; and
(b) pay equitable compensation to the employees in the job class in relation to the period that begins on the day on which the order is made and that ends on the day on which the employer next complies with section 6 or 7 in respect of the job group that includes that job class.
Marginal note:Determination of day
(4) For the purposes of subsection (3), the day is the day on which the complainant made a request under subsection 9(1).
Marginal note:Failure to file report
(5) If the employer fails to file a report required by an order made under subsection (1) or (2), the Board may, by order, grant another period of time to file the report or, if the Board considers that there are exceptional circumstances to justify doing so, declare that the employer has committed a manifestly unreasonable error described in subsection (3). If the Board makes that declaration, subsection (3) applies.
Marginal note:Report to be made available
(6) The Board shall make every report received as a result of an order made under this section available to the public.
Marginal note:Power to require posting of order
(7) The Board may, in an order made under this section, require the employer to post a copy of it, for at least 90 days, in the prescribed manner.
Complaints Filed by Unionized Employees
Marginal note:Complaints under section 23
31 The Board may, in respect of a complaint filed under section 23, dismiss the complaint or, by order, if the Board determines that the employer or the bargaining agent has failed to comply with section 12, direct the employer or bargaining agent, as the case may be, to comply with section 12 within the period specified by the Board in the order.
Marginal note:Complaints under section 24 — power to require statement
32 The Board may, in respect of a complaint filed under section 24, direct the employer and the bargaining agent to file with it, within the period specified by it, a copy of the report that they made available to employees under section 22 and a written statement that
(a) identifies the job class of which the complainant is, according to the employer and the bargaining agent, a member; and
(b) indicates whether the job class referred to in paragraph (a) is female predominant and, if it is, sets out how an equitable compensation assessment should be conducted in respect of that job class.
Marginal note:Complaints under section 24 — power to dismiss or make orders
33 (1) The Board may, in respect of a complaint filed under section 24, dismiss the complaint or, by order, require the employer and the bargaining agent to file with the Board, within the period specified by it in the order, a report that sets out the following in respect of the female predominant job class of which the complainant is, according to the Board, a member:
(a) how the employer and the bargaining agent have, since the making of the order, conducted an equitable compensation assessment in respect of the job class; and
(b) if the equitable compensation assessment identified an equitable compensation matter in respect of the job class, their plan to resolve that matter in the course of the next collective bargaining that begins after the day on which the order is made or, if they are collectively bargaining on that day, in the course of that collective bargaining.
Marginal note:Power if employer and bargaining agent have committed manifestly unreasonable error
(2) If, after receiving a report required by an order made under subsection (1), the Board is of the opinion that the employer and the bargaining agent have committed an error that is manifestly unreasonable in conducting an equitable compensation assessment or that their plan fails to make reasonable progress toward resolving an equitable compensation matter, the Board may, by order,
(a) require the employer and the bargaining agent to
(i) take measures to correct the error or to alter the plan in such a way that it makes reasonable progress toward resolving the equitable compensation matter, and
(ii) file a report with the Board, within the period specified by it in the order, describing the measures the employer and the bargaining agent have taken; and
(b) if more than two years remain before the termination date of the current collective agreement between the employer and the bargaining agent, alter the collective agreement in such a way that the termination date is any day specified by the Board that is within the period that begins two years after the day on which the order is made and that ends on the day that would otherwise have been the termination date.
Marginal note:Power to determine equitable compensation matter
(3) If, after receiving a report required by an order made under subsection (2), the Board is of the opinion that the employer and the bargaining agent that prepared the report have committed an error that is manifestly unreasonable in the fulfilment of their obligations to take the measures referred to in subparagraph (2)(a)(i), the Board shall determine, by having regard to the equitable compensation assessment conducted by the employer and the bargaining agent or by itself conducting an equitable compensation assessment in respect of the female predominant job class of which the complainant is, according to the Board, a member, if any equitable compensation matters exist in respect of the job class and, if it determines that there are, the Board may, by order,
(a) require the employer or the employer and the bargaining agent to pay the complainant a lump sum as compensation with respect to the matter in relation to the period that begins on the day on which the collective agreement during which the complaint was made became effective and binding and that ends on the day on which the order is made; and
(b) subject to subsection (4), alter any collective agreement that binds the employer and the bargaining agent on the day on which the order is made so that the employees of the job class receive equitable compensation for the remainder of the term of the collective agreement.
Marginal note:When order under paragraph (3)(b) not necessary
(4) The Board may refrain from making an order under paragraph (3)(b) if it is satisfied that the employer, or the employer and the bargaining agent, have taken the measures that are necessary to provide the employees of the job class with equitable compensation.
Marginal note:Failure to file report
(5) If the employer and the bargaining agent fail to file a report required by an order made under subsection (1) or (2), the Board may, by order, grant another period of time to file the report or, if the Board considers that there are exceptional circumstances to justify doing so, declare that the employer and the bargaining agent have committed a manifestly unreasonable error described in subsection (3). If the Board makes that declaration, subsection (3) applies.
Marginal note:Public Service Labour Relations Act applies
(6) The Public Service Labour Relations Act applies in respect of a collective agreement altered under an order made under paragraph (2)(b) or (3)(b) as if it had been entered into under that Act.
Marginal note:Report to be made available
(7) The Board shall make every report received as a result of an order made under this section available to the public.
Marginal note:Power to require posting of order
(8) The Board may, in an order made under this section, require the employer to post a copy of it, for at least 90 days, in the prescribed manner.
Costs
Marginal note:Power to require payment of costs
34 The Board may, in making an order under this Act, require the employer, the bargaining agent or the employer and the bargaining agent, as the case may be, to pay to the complainant all or any part of the costs and expenses incurred by the complainant as a result of making the complaint.
Regulations
Marginal note:Regulations
35 The Governor in Council may make regulations
(a) defining job group for the purposes of this Act;
(b) respecting the content and form of plans prepared under this Act, including as a result of an order made under this Act;
(c) prescribing anything that by this Act may be prescribed; and
(d) generally for carrying out the purposes and provisions of this Act.
Prohibitions
Marginal note:Prohibition against encouraging or assisting
36 Every employer and every bargaining agent shall refrain from engaging in any conduct that may encourage or assist any employee in filing or proceeding with a complaint under this Act.
Marginal note:Other prohibitions — employer
37 No employer and no person acting on an employer’s behalf shall refuse to employ or to continue to employ any person, or suspend or lay off any person or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment or intimidate, threaten or otherwise discipline any person, because the person
(a) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Act; or
(b) has filed a complaint or exercised any right under this Act.
Marginal note:Other prohibitions — bargaining agent
38 No bargaining agent and no person acting on a bargaining agent’s behalf shall
(a) expel or suspend an employee from membership in the bargaining agent, or take disciplinary action against, or impose any form of penalty on, an employee because the employee exercised any right under this Act or refused to perform an act that is contrary to this Act; or
(b) discriminate against a person with respect to membership in the bargaining agent, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person
(i) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Act, or
(ii) has filed a complaint or exercised any right under this Act.
Marginal note:Complaints against employers
39 (1) The Board shall examine and inquire into any complaint made to it that an employer or a person acting on an employer’s behalf has contravened section 37.
Marginal note:Complaints against employers
(2) A complaint referred to in subsection (1) is to be examined and inquired into by the Board as if it were a complaint in respect of a contravention of paragraph 186(2)(c) of the Public Service Labour Relations Act. For greater certainty, if the complaint is made in writing, the written complaint is itself evidence that the contravention actually occurred and, if any party to the complaint proceedings alleges that the contravention did not occur, the burden of proving that it did not is on that party.
Marginal note:Complaints against bargaining agents
(3) The Board shall examine and inquire into any complaint made to it that a bargaining agent or a person acting on a bargaining agent’s behalf has contravened section 38.
Marginal note:Complaints against bargaining agents
(4) A complaint referred to in subsection (3) is to be examined and inquired into by the Board as if it were a complaint in respect of a contravention of paragraph 188(d) or (e) of the Public Service Labour Relations Act. If the complaint is made in writing, the written complaint is itself evidence that the contravention actually occurred and, if any party to the complaint proceedings alleges that the contravention did not occur, the burden of proving that it did not is on that party.
Offence and Punishment
Marginal note:Contravention of section 37 or 38
40 Every employer, bargaining agent or other person who contravenes section 37 or 38 is guilty of an offence and liable on summary conviction to a fine not exceeding $10,000.
Marginal note:Contravention of orders and certain provisions
41 (1) Every employer or bargaining agent who contravenes section 15, 22 or 36 or an order of the Board made under this Act is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000.
Marginal note:Contravention of section 44
(2) Every employer who contravenes section 44 is guilty of an offence and liable on summary conviction to a fine not exceeding $25,000.
Marginal note:Consent to prosecution
(3) A prosecution for an offence under subsection (1) or (2) may be instituted only with the consent of the Board.
General
Marginal note:Bargaining agent deemed to be person
42 For the purposes of this Act, a bargaining agent is deemed to be a person.
Marginal note:Obligation to provide Board with reports
43 An employer shall, as soon as feasible after it has prepared a report referred to in section 7 or 22, provide the Board with the report.
Marginal note:Obligation to keep records
44 Every employer shall, in the prescribed manner, establish and maintain, for the prescribed period, prescribed records for the purpose of this Act.
Marginal note:Inconsistency or conflict
45 Nothing in this Act affects the application of the Public Service Labour Relations Act, but in the event of any inconsistency or conflict between this Act and that Act, the provisions of this Act prevail to the extent of the inconsistency or conflict.
Marginal note:Application of safety or security provisions
46 (1) Nothing in this Act is to be construed as requiring or permitting an employer, an employee, a bargaining agent or the Board to do or refrain from doing anything that is contrary to any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or of any state allied or associated with Canada.
Marginal note:Order is conclusive proof
(2) For the purposes of subsection (1), an order made by the Governor in Council is conclusive proof of the matters stated in it in relation to the giving or making of any instruction, direction or regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
Transitional Provisions
Complaints by Non-unionized Employees
Marginal note:Day determined under subsection 30(4)
47 If a complaint is made under section 11 after the first period that the employer was bound to comply with section 6 or 7 in respect of the job group that includes the complainant and before the second period that the employer was bound to comply with either of those sections in respect of that job group, the day that is referred to in subsection 30(4) in respect of that complaint is, despite that subsection, the day on which this Act came into force.
Taking Effect of Provisions in Respect of Unionized Employees
Marginal note:Application of subsection 12(1)
48 Subsection 12(1) applies only in respect of a collective agreement that expires on a day that is more than two years after the day on which this Act comes into force.
Marginal note:Application of subsection 12(2) and sections 13 to 22 and 24
49 Subsection 12(2) and sections 13 to 22 and 24 apply only in respect of a collective agreement that takes effect, or would take effect, on a day that is more than two years after the day on which this Act comes into force.
First Collective Agreement After Taking Effect
Marginal note:Period referred to in paragraph 33(3)(a)
50 (1) If a complaint filed under subsection 24(1) is in respect of the first collective agreement that takes effect on a day that is more than two years after the day on which this Act comes into force, the period referred to in paragraph 33(3)(a) is, despite that paragraph, the period that begins, subject to subsection (2), on one of the following days and that ends on the day on which the order is made:
(a) if the complainant was not a unionized employee on the day on which this Act came into force, the later of the day on which the complainant became a member of a bargaining unit to which the collective agreement applies and the day on which this Act came into force;
(b) if the complainant was, on the day on which this Act came into force, a member of a bargaining unit that was not a bargaining unit to which the collective agreement applies, the day on which the complainant became a member of a bargaining unit to which the collective agreement applies; or
(c) in the case of any other complainant, the day on which this Act came into force.
Marginal note:Exception
(2) The day referred to in each of paragraphs (1)(a) to (c) may not be earlier than the day on which the job class to which the complaint relates came into existence.
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