Public Sector Equitable Compensation Act threatens pay equity rights of women

I wonder if the below case was the motivator to create the "Equitable Compensation Act". We had for eight years used the normal formal complaint avenues which they advocate as the best route to follow. Our case ended with PSAC and the Labor relations board either abandoning us or rechanting that the classification system was written in stone and no could dare move from one barganing agent to another(from PSAC to PIPSC). Will the new Act prevent the below from happening again, is the question?

A mid-December 2007 ruling over a complaint of discrimination practised by the Government of Canada involving several hundred federally-employed nurses could be the tip of the iceberg leading to other similar human rights complaints affecting both public and private sectors.
In a decision issued December 13, the Canadian Human Rights Tribunal ruled the federal government has been discriminating, possibly for decades, against more than 430 nurses employed as medical adjudicators whose job is establishing eligibility of applicants for federal disability (CPP) benefits.

The decision by the tribunal carried a cease-and-desist order barring the government from continuing the practice of paying nurses significantly less than physicians, most of whom are male and paid almost twice as much as nurses to perform the same work.

The longer-range financial liability of the government has yet to be established, but it could amount to hundreds of millions of dollars and have a similar impact on other employee groups in Canada. The federally-employed nurses earn between $50,000 and $60,000 annually, about half of what physicians are paid for doing the same work.

“What is clear is that it confirms the principle that employers cannot discriminate between employees who are performing the same or substantially similar work,” said Philippe Dufresne, senior counsel for the Canadian Human Rights Commission, the original recipient of the discrimination complaint from Ruth Walden, an Ottawa nurse who has worked as a medical adjudicator for the federal government for 15 years.

How far-reaching the tribunal’s decision will be in applying to other groups of government or private-sector employees hasn’t been determined, Dufresne said in an interview.

“It’s going to be on a case-by-case basis as to determination whether a given group is performing the same or similar work as another group.” he said. “If that’s established and one group is predominantly female and the other group is predominantly male, on the basis of the reasoning of this case, there will be discrimination if the treatment of the two groups is different.”

Departments of the federal government named in the nurses’ action, which include the Treasury Board of Canada, the Public Service Human Resources Management Agency of Canada and Social Development Canada, will have three months to negotiate a settlement with the employee group on the amount of liability in terms of retroactive wages and compensation. If the parties fail to agree, that decision will revert to the human rights tribunal to decide. Government officials are reported reviewing implications of the case.

Laurence Armstrong, a Victoria, B.C. lawyer who acted for the 431-member nurses’ group, said the landmark decision by the tribunal could apply in other jurisdictions, both within and outside the federal system. There could be parallels applying to those employed in roles such as paralegals or nurse practitioners.

“Even in just the world of nursing, you’d think that a clinical nurse in a clinical setting would be very interested in this decision,” Armstrong said. When he first became involved in the federal case, he found “a sort of programmed deference” that nurses tend to give doctors.

It took significant courage for Walden and her fellow nurses, the majority of them female, to pursue the complaint against the government, Armstrong said. Since the case became public, a number of other nurses have indicated they wish to be part of the action.

“I’m sort of besieged with people right now saying, ‘I was in there for six years and how do I join?’” he said. “I really think it’s in the government’s interest to capture as many of these people as possible to resolve this thing or there’ll be a second group established to do it again.”

Although a minority of the nurses employed as medical adjudicators are male, the complaint against the government was a case where gender issues were clearly defined, Armstrong said. Still, the tribunal decision and any financial compensation also will apply to the male nurses.

“These fellows who are nurses are subjected exactly to the same treatment,” that formed the basis for the complaint, he added. “They got stuck in exactly the same issue. Doctors admitted on the stand that the work (they do) was exactly the same.”

The tribunal decision, Dufresne said, is not related to the Employment Equity Act, which deals chiefly with levels of representation by various groups in the workplace. The issue the tribunal dealt with in this case was inequitable treatment of two groups of employees doing basically the same work, he said.

The tribunal also found that the liability in the case went back to 1978, when the Canadian Human Rights Act took effect, even though many of the nurses were employed in these positions as long ago as 1972. Whether any financial remedy goes back that far will be an issue for discussion between the parties. Not only salary levels are involved in the complaint, but also training budgets and opportunities for advancement.