Quebec adopts amendments to its Pay Equity Act
On April 10, 2019, the Quebec National Assembly assented to Bill 10, An Act to amend the Pay Equity Act mainly to improve the pay equity audit process. The purpose of the Pay Equity Act is to redress differences in compensation due to the systematic gender discrimination suffered by persons who occupy positions in predominantly female job classes. The main changes introduced by Bill 10 are to give employees the opportunity to participate in the periodic pay equity audit process, and to ensure that pay equity adjustments become payable on the date of the organizational change or event leading to such adjustments, even if retroactively. The introduction of Bill 10 was discussed in the March 2019 News & Views.
Employee participation in the pay equity audit process
Until April 10, 2019, an employer could conduct a pay equity audit without employee participation, even when the initial pay equity plan was adopted by the pay equity committee. Employee participation in the pay equity audit consisted solely of receiving employer postings and having the right to provide comments or request additional information not later than 60 days after the posting.
As of April 10, 2019, if the pay equity plan was developed by a pay equity committee or if the employees are members of a certified association or union, the employer must send information about the pay equity audit to employee representatives not later than 60 days before the first posting. Representatives of employees who are not members of an association or union in the organization must be sent comparable information within the same time period.
The employer must also put measures in place to allow for employee representatives to provide comments or ask questions, not later than 60 days before the first internal posting of audit results, except when the first posting occurs within the period from April 10 to July 9, 2019.
Effective date of pay adjustments arising from the pay equity audit
Bill 10 will now require retroactive pay adjustments based on the date of the events leading to the pay disparity, rather than the date of the audit. This legislative change is the result of a Supreme Court of Canada decision handed down on May 10, 2018, which concluded that certain provisions of the Pay Equity Act contravened the Canadian Charter of Rights and Freedoms1.
Since the analysis of the workforce data for each pay equity audit may be separated by a period of up to five years, this change implies that a lump sum payment bearing interest at the legal rate may be calculated from a date up to five years before the effective date of the workforce data analysis for the pay equity audit. Under certain conditions, payment of the retroactive adjustments may be spread over a period of four years.
Other changes in the application of the Pay Equity Act have been in effect since April 10, 2019. The Commission des normes, de l’équité, de la santé et sécurité du travail (CNESST), the regulator responsible for the application of the Pay Equity Act, may now group similar complaints, and the form for filing a complaint is now prescribed by law.
The employer’s obligation to issue advance notice that the pay equity results will be posted has been eliminated.
Some additional information must now be posted internally. Going forward, if no questions or observations are received by the employer or the employer’s representative after a posting, the subsequent posting must state this, noting that any complaint must be submitted to the CNESST on the prescribed form and providing information about the remedies and deadlines with respect to the complaint.
1 Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17.