Inequitable

Not surprisingly, the pay equity portion of Deficit Jim's budget bill looks to be one of the more significant flashpoints. But let's look at a couple of the ways in which these provisions are even worse than one might have expected based on the Cons' usual distaste for pay equity.

First, the premise of any pay equity assessment is that one of the two main factors under consideration is the employer's - such that any inequity in an employee's "market value" can and should be duplicated by public-sector employers:

4(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.

That would be a problematic enough starting point based on the fact that it would only tend to replicate any lack of pay equity that already exists in the "market". But it gets worse when one looks at who gets to decide what the employer's recruitment and retention needs are. So let's examine the process for non-unionized employees.

First, the employer decides for itself whether or not any of its job groups or classes are "female predominant". If so, then it gets another specified period of time in which to decide if any pay equity matters need to be addressed, and then another one to determine what if anything it wants to do in response.

Of course, a dissatisfied employee may make a complaint. But the first step of most complaints travels right back to the employer, who gets another crack at deciding whether or not it should do anything differently.

It's only if the employer once again falls short in its response to an employee that the employee has any recourse to another party, that being the Public Service Labour Relations Board. But the problems for the employee aren't done yet.

For most of the possible violations (i.e. those that don't arise out of the last step in the process of complaining to the employer, including where that's the employer's fault due to its failure to provide required information), the Board's lone options are to dismiss a complaint, or to order the employer to once again go back to the drawing board.

And matters aren't much better if the employee has succeeded in launching the other type of complaint - which isn't even available until after the employee has previously provided a specific allegation to the employer, received the employer's response, and provided a detailed statement to the Board.

Under that process, the Board is again limited in its initial response: it can either dismiss the complaint, or ask the employer to provide another report about its assessment process. But the Board isn't given any authority to follow up on that report unless it includes a "manifestly unreasonable" error. (And again, keep in mind that the employer is explicitly directed to consider its own staffing interests - meaning that it'll almost by definition be "reasonable" for an employer to conclude that its best interests are served by doing nothing.)

Even at that point, the employer gets another chance to report back before facing any order which actually requires it to pay compensation to the affected employees. And that's only applicable if the employer is found a second time to have been "manifestly unreasonable" rather than merely wrong in its assessment.

In effect, then, employers get a minimum of four chances to put forward their preferred assessments, and are given the ability to stall at every turn in the face of a complaint. And it's only after failing utterly in that task - including a second chance to avoid being "manifestly unreasonable" after one finding to that effect - that employers can face any real consequences.

As a result, employees are left to rely almost entirely on an employer's willingness to voluntarily provide reasonable assessments. And the process to challenge any assessment is effectively designed to make for more trouble than it's worth from the employee's standpoint.

Which shouldn't come as much surprise given the Cons' obvious hostility toward pay equity. But it'll be interesting to see how the Libs can possibly pretend to care about pay equity while voting for a warped set of criteria and a Kafkaesque process.