February 10, 2016 By: Sean T. McGee
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People who worked in labour relations in the late 1980s and early 1990s will remember a frenzied period of activity to make sure that men and women in Ontario were paid equally for work of equal value.

Having expended a lot of time, effort and money on pay equity consultants and lawyers, not to mention the internal cost of these exercises, most of those involved were happy that longstanding equality issues had been addressed.

Many were also happy to see the exercise in their rear-view mirror.

Except it’s not.

Employers in Ontario – like most jurisdictions, for that matter – have a duty under the Pay Equity Act not just to establish, but also to maintain pay equity. That means not assuming the work done in the last millennium is like a vaccine that lasts a lifetime.

Case law has confirmed that an employer has an obligation to review job classes regularly to see if there have been any changes that require pay equity adjustments.

This is important to keep in mind for a number of reasons. Perhaps the most important is that there are very few jobs that have not changed over the last thirty years. Remember that the Internet wasn’t a “thing” that people knew about until after the Act came into force. There are fewer and fewer jobs that don’t have some component connected to a computer, connected in turn to the Internet. That’s just one example. There has also been mechanization, consolidation, and a host of other impacts on jobs and job content.

The fact that some employers will assign increases on a job-by-job basis alone is enough to require them to go back to make sure those increases have not thrown off the balance created by a pay equity plan. That says nothing of new classifications that may never have been reviewed for pay equity compliance.

Although the obligation is on employers, unions should remember the obligation and be sure that they consider the need to maintain pay equity when they are negotiating compensation. Remember too that, although it is called the Pay Equity Act, it applies to all payments and benefits paid to a person who performs work. It can be easy to forget how broad the obligation is and to neglect to check whether that compensation still complies with the Act.

It is also important to remember that people who have not been properly compensated may have a right to redress under the collective agreement, the Act, or both.

Clearly, an employer and a union have an obligation not to knowingly create a compensation structure that violates the Pay Equity Act, but it is just as important to remember to review those structures to make sure changes over time haven’t resulted in different pay for men and women who do work of equal value.

Don’t just let sleeping dogs lie. The bite can be much more painful if they catch you when you don’t expect it.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law