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Pay Equity Act (S.C. 2018, c. 27, s. 416)

Full Document:  

Act current to 2022-11-16 and last amended on 2021-08-31. Previous Versions

PART 1Pay Equity Plan (continued)

Marginal note:Committee cannot perform work

 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

 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

  •  (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

 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

 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

 A job class may consist of only one position.

Marginal note:Job classes in core public administration

 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

 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

 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

 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

  •  (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

 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

 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

  •  (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 or pay equity committee, 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

 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

 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

  •  (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

 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

 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

 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

  •  (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

  •  (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.

 
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