of Bill :
WHEREAS pay equity is a fundamental human right that has been recognized internationally for a considerable time;
WHEREAS the Universal Declaration of Human Rights proclaims that all are equal before the law and are entitled without any discrimination to equal protection of the law;
WHEREAS Canada has ratified Convention 100 of the International Labour Organization, which provides for equal remuneration for male and female workers for work of equal value;
WHEREAS the Constitution of Canada states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability;
WHEREAS the recognition of the fundamental principle that all persons are equal in dignity and human rights without regard to sex is a governing principle sanctioned by the laws of New Brunswick, including the Human Rights Act;
WHEREAS women continue to experience inequality in the workplace, occupational segregation and the systemic devaluation of their work despite legislation prohibiting discrimination;
WHEREAS differences in compensation resulting from systemic gender discrimination against persons who hold employment in predominantly female job classes persist;
WHEREAS it is desirable that concrete measures be taken to eliminate gender discrimination against persons who hold employment in predominantly female job classes in New Brunswick;
AND WHEREAS it is appropriate that New Brunswick enact a proactive pay equity statute to promote the equality of New Brunswickers;
THEREFORE, Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1 In this Act,
"Chairperson" means the Chairperson of the Pay Equity Commission of New Brunswick; (président)
"Commission" means the Pay Equity Commission of New Brunswick established by this Act; (Commission)
"employee" includes dependent contracts and their employees, as well as casual, temporary, part-time, full-time, permanent and probationary employees; (employé)
"employer" means anyone who causes work to be done by an employee which also includes a subcontractor; (employeur)
"job class" means jobs that
(a) have similar duties and responsibilities;
(b) require similar qualifications; and
(c) have the same compensation, that is, the same rate or scale of compensation,
but may consist of only one position; (catégorie d'emplois)
"pay equity" means equal pay for work of equal or comparable value which is a concept that underlies the recognition of the value of the traditional work of women, and persons holding different jobs can be paid the same remuneration when the value of their work, as determined based on responsibilities, skill working conditions and efforts, is equivalent; (équité salariale)
"pay equity committee" means the pay equity committees established by this Act; (comité d'équité salariale)
"predominantly female job class" means a job class in which at least 60% of the employees are women, or where, historically, the progression of the representation rate of women indicates that the job class is predominantly female, or where the job class is customarily associated with women, or where the difference between the rate of representation of women within the job class and their rate of representation in the employer's total workforce is considered significant by the equity committee; (catégorie d'emplois à prédominance féminine)
"predominantly male job class" means a job class in which at least 60% of the employees are men, or where, historically, the progression of the representation rate of men indicates that the job class is predominantly male, or where the job class is customarily associated with men, or where the difference between the rate of representation of men within the job class and their rate of representation in the employer's total workforce is considered significant by the equity committee. (catégorie d'emplois à prédominance masculine)
2 The Premier is responsible for the administration of this Act.
3 No act, or regulation under any other act, shall be interpreted to repeal, limit or contravene a provision of this Act and, in case of conflict between this Act and any other act, this Act shall prevail.
4 This Act shall be interpreted in such a manner as to further its purpose.
5 Nothing in this Act limits the power of the Legislative Assembly and the Government to promote progress toward the equality of men and women.
Purpose and Scope
6(1) The purpose of this Act is to redress differences in compensation that are due to systemic gender discrimination against persons who hold employment in predominantly female job classes.
6(2) Differences in compensation shall be assessed within the same business unless there are no predominantly male job classes in the enterprise.
7 Any provision of an agreement, individual employment contract, collective agreement, order, decree, or agreement concerning conditions of employment, including a government regulation, contrary to this Act is void.
8 This Act binds the Government of New Brunswick and its departments, agencies and agents.
9 This Act binds government funding agencies for which salary guidelines exist.
10 This Act applies to private sector employees and to the entire public sector, including public sector employees in respect of whom a value determination was completed under the Pay Equity Act of 1989.
11 Nothing in this Act limits or repeals any employer's obligation or any employee's rights under section 37.1 of the Employment Standards Act.
Pay Equity Plans
12 Every employer is responsible for implementing and maintaining a pay equity program with respect to the employer's employees and shall take proactive measures to achieve pay equity.
13 An employer shall ensure that each element of its pay equity program, and the manner in which those elements are applied, are free of gender discrimination.
14 An employer shall facilitate employee involvement in the implementation of a pay equity plan by establishing a pay equity committee on which its employees are represented.
15 No employer, certified union, or recognized association, and no member of a pay equity committee shall, in the implementation of a pay equity plan, act in bad faith or in an arbitrary or discriminatory manner or exhibit gross negligence with regard to the employer's employees.
16 Notwithstanding any other provision of this Act, no employer shall, with a view to implementing pay equity,
(a) reduce, freeze or red-circle an employee's compensation; or
(b) place an employee in a lower step of a pay range that has been adjusted upward.
17 A pay equity plan shall include:
(a) a list of the predominantly female and predominantly male job classes within the enterprise;
(b) a description of the method and tools selected to determine the value of job classes and the development of a value determination procedure;
(c) a determination of the value of the job classes, a comparison between them, a valuation of differences in compensation and the determination of the required adjustments in compensation; and
(d) a procedure for paying out adjustments in compensation.
Pay Equity Committees
18 The number of members on a pay equity committee shall be no less than three and shall be determined by agreement between the employer and the employees.
19 A quorum at a meeting of a pay equity committee shall consist of 50% of the members who must attend.
20 Employee representatives on a pay equity committee shall be designated in such a manner as to favour representation of the major predominantly female job classes and the major predominantly male job classes.
21(1) Not less than two-thirds of the members of a pay equity committee shall be employee representatives.
21(2) At least one half of the employee representatives shall be women, and such women shall preferably be members of predominantly female job classes.
21(3) The non-employee members of a pay equity committee shall represent and be designated by the employer.
22 Where employees concerned by a pay equity plan are represented by a certified union or recognized association, the union or association shall designate its representatives on the pay equity committee.
23 Where a pay equity program concerns only employees who are not represented by a certified union or recognized association, those employees shall designate their representatives on the pay equity committee.
24 Where the employees concerned by a pay equity plan are represented by more than one certified union or recognized association, or where some of those employees are not represented by a certified union or recognized association, the members representing the employees on a pay equity committee shall be designated as follows:
(a) each certified union or recognized association representing employees shall designate at least one member;
(b) the employees who are not represented shall designate at least one member; and
(c) if the employees represented by one certified union or recognized association, or the employees not represented by a certified union or recognized association, form the majority of the employees concerned by the plan, that union, association, or those non-represented employees, shall designate the majority of the members representing the employees.
25 The pay equity committee shall establish its own operating rules, including rules governing the conduct of its meetings.
26 The employer shall allow employees not represented by a certified union or recognized association to hold a meeting in the workplace, without loss of compensation, for the purpose of designating their representatives on the pay equity committee.
27 An employer shall disclose to the members of the pay equity committee such information as is necessary for the pay equity plan to function properly and shall facilitate the collection of necessary information within a reasonable time.
28 The members of a committee shall protect the confidentiality of the personal information obtained by the operation of section 27.
29 The members of a pay equity committee shall be paid their salary and other benefits for the duration of the committee meetings that they attend.
30 A pay equity committee shall keep minutes of its meetings.
31 A copy of the pay equity committee's minutes shall be made available to the Commission and sent to the Commission upon request.
32 The minutes of pay equity committee meetings are public documents and are available to the public by making a request to the Commission.
33 An employer at a workplace shall, after consulting with the members of the pay equity committee at that workplace, grant those members such leave as is necessary for them to obtain the training they require to carry out their duties and responsibilities.
34 Members shall be compensated for the travel and accommodation expenses that they incur when carrying out their duties outside their usual place of work.
35 The Commission may order an employer to grant members of a pay equity committee the requisite leave if the employer is not doing so.
36 If the members of a pay equity committee are unable to reach an agreement regarding a question of pay equity, they shall call upon the Commission to solve the problem.
37 A pay equity committee may:
(a) make recommendations to establish and achieve compliance with pay equity policy;
(b) establish and launch programs to educate and inform the employer and employees;
(c) receive and examine workplace pay equity complaints and make recommendations to the employer regarding such complaints;
(d) keep records concerning the complaints it receives and examines and the recommendations it makes; and
(e) carry out such other duties
(i) as the Commission may assign it;
(ii) as the employer and employees may mutually agree to entrust to it; and
(iii) as are prescribed by this Act or the regulations made under it.
Identifying Job Classes
38 A pay equity committee shall identify the predominantly female and predominantly male job classes.
39 A pay equity committee shall decide on the tools and procedures to be used in determining the value of the job classes.
Determining and comparing the value of job classes, valuating differences in compensation and determining the required adjustments in compensation
40 A pay equity committee shall determine the value of each predominantly female and predominantly male job class based on the method of value determination selected.
41 A pay equity committee shall compare the predominantly female job classes with the predominantly male job classes in order to determine the differences in compensation between them.
42 A pay equity committee shall determine the amounts of the adjustments in compensation required to redress the differences in compensation.
43 The adjustments in compensation required to achieve pay equity shall be determined, or a pay equity plan shall be completed, no more than four years after this Act comes into force.
44 An enterprise that commenced operations less than twelve months prior to the coming into force of this Act shall complete its pay equity plan within two years.
Describing the methods and tools for determining differences in compensation and developing a value determination procedure
45 Differences in compensation between a predominantly female job class and a predominantly male job class may be valuated on an overall, individual or indirect basis or according to any other method approved by the Commission for valuating differences in compensation.
46(1) Valuation on an overall basis shall be effected by comparing each predominantly female job class with the pay line of all predominantly male job classes.
46(2) The pay line in subsection (1) shall be established using a formula that optimizes the wage gap correction for all job classes.
47(1) Valuation on an individual basis shall be effected according to the job to job method of comparison by comparing a predominantly female job class with a predominantly male job class of equal value.
47(2) In applying the job to job method of comparison, where there are two or more predominantly male job classes of equal value but with different remuneration, comparisons are made on the basis of the average remuneration for those job classes.
48 Where the job to job method of comparison cannot be applied to a predominantly female job class, its remuneration shall be valuated proportionately to the remuneration of the predominantly male job class whose value is closest to its value.
49 An indirect method for valuating differences in compensation, such as comparison by proxy, shall be used where there is no predominantly male comparator within the enterprise.
50 No method of comparison may be used which excludes a predominantly female job class.
51(1) For the purposes of valuating differences in compensation, remuneration includes flexible pay if it is not equally available to all the job classes that are the subject of the comparison.
51(2) Flexible pay includes merit pay, performance pay, and income from profit-sharing plans.
51(3) Where benefits having pecuniary value are not equally available to all the job classes that are the subject of the comparison, the value thereof must be determined and must be included in the remuneration for the purpose of determining differences in compensation.
51(4) Benefits having pecuniary value include, in addition to indemnities and bonuses,
(a) the various forms of paid leave including sick leave, family-related and parental leave, vacation and holidays, rest and meal periods and other benefits of that nature;
(b) retirement and group protection plans including pension funds, health and disability insurance and other group plans of that nature; and
(c) non-salary benefits including the supply and maintenance of tools and uniforms or other clothing, parking privileges, meal allowances, the supply of vehicles, payment of professional dues, paid educational leave, reimbursement of tuition fees, low-interest loans and other benefits.
51(5) For the purpose of valuating differences in compensation, differences between job classes based on any of the following facts shall not be taken into account:
(a) seniority, unless this factor has discriminatory effects on the basis of gender;
(b) an assignment of fixed duration, such as an employee training, development or orientation assignment;
(c) red circling, that is, a situation where a person's compensation is increased more slowly, following a reclassification, demotion or special arrangement for the handicapped, until the compensation in the person's new job class is equal to the person's compensation; and
(d) non-enjoyment of benefits having pecuniary value by reason of the temporary, casual or seasonal nature of a position.
Terms and conditions for paying out adjustments in compensation
52 The employer shall determine the terms and conditions of payment of adjustments in compensation after consultation with the pay equity committee or with the certified union or recognized association.
53 Subject to section 55, adjustments in compensation may be spread over a maximum period of two years.
54(1) Where adjustments in compensation are spread over time, the instalments must be annual and equal in amount.
54(2) The employer shall make the first adjustments in compensation on the date by which the pay equity plan must be completed.
54(3) If the employer fails to make adjustments in compensation within the applicable time limits, the unpaid adjustments shall bear interest at a rate to be prescribed by regulation from the time they became payable.
55 The Commission may, subject to conditions it determines, authorize an employer who shows that it is unable to pay the adjustments in compensation to extend by a maximum of three years the period over which the adjustments are spread.
56 The Commission may, where it has reasonable grounds to believe that the financial situation of an employer has improved under section 55, order payment of the adjustments or determine new terms and conditions.
57 The Commission may, in determining the financial situation of an employer under sections 55 or 56, require of the employer that it furnish any document or information and that it report on any steps it has taken to obtain a loan from a financial institution.
58 An employer shall not, in order to achieve pay equity, reduce the remuneration, flexible pay, or benefits, payable to any employee holding a position in its enterprise.
59 Adjustments in compensation in respect of predominantly female job classes and the terms and conditions of payment thereof determined in accordance with this Act are deemed to form part of the collective agreement applicable to employees holding positions in those job classes.
60 An employer shall post the adjustments in compensation it has determined to achieve pay equity, or a notice stating that no adjustment in compensation is required, in prominent places easily accessible to the employees.
Achievement of Pay Equity
61 For the purposes of this Act, pay equity is achieved in an enterprise when each predominantly female job class in the enterprise has been compared with one or more job classes using the method selected, and the adjustments indicated by the comparison have been made.
Changed circumstances in an enterprise and maintenance of pay equity
62 After adjustments in compensation have been determined or a pay equity plan has been completed, the employer, the certified union or the recognized association, shall see to it that pay equity is maintained within the enterprise.
63 The parties shall ensure the maintenance of pay equity when new positions or new job classes are created, when existing positions or the conditions applicable to existing positions are modified, and when a collective agreement is negotiated and renewed.
64 The disposition of the enterprise or a modification of its legal structure shall have no effect on obligations related to adjustments in compensation or to a pay equity plan, and such obligations or plan shall be binding on the new employer.
65 Where, because of changed circumstances in the enterprise, the compensation adjustments or the pay equity plan are no longer appropriate to maintain pay equity, modifications necessary to maintain pay equity shall be made.
Pay Equity Commission of New Brunswick: establishment and organization
66 The Pay Equity Commission of New Brunswick is hereby established.
67 The Commission comprises three members having general expertise in the areas of pay equity, human rights and labour relations, one of whom shall serve as the Chairperson, and a majority of whom shall be women, and shall be appointed by the Lieutenant-Governor in Council after consultation with organizations representative of employers, employees, and women.
68 The term of office of members to the Commission shall not exceed five years.
69 On the expiry of a member's term in office, that member shall remain in office until he or she is replaced or reappointed.
70 The members of the Commission shall devote their time exclusively and on a full-time basis to the duties of their office.
71 The Commission is responsible for the direction and administration of its affairs.
72 In case of a tied vote, the Chairperson's vote shall be the deciding vote.
73 The quorum at sittings of the Commission is two members.
74 If the Chairperson is absent or unable to act, the Legislative Assembly shall designate a member of the Commission to replace the Chairperson subject to the conditions determined by the Legislative Assembly or the Lieutenant Governor in Council, if the Legislative Assembly is not in session.
75 If a member of the Commission other than the Chairperson is absent or unable to act the Legislative Assembly may appoint another person as an acting replacement subject to the conditions determined by the Legislative Assembly or the Lieutenant Governor in Council if the Legislative Assembly is not in session.
76(1) No member of the Commission may, on pain of forfeiture of office, hold a direct or indirect interest in an enterprise that places the member's personal interest in conflict with the interest of the Commission.
76(2) Forfeiture of office shall not be incurred if the interest devolves on the member by succession or gift provided the member renounces or disposes of the interest as soon as possible.
77 The Commission's office shall be established at a place determined by the Legislative Assembly.
78 The Commission may hold sittings anywhere in New Brunswick.
79 The Commission shall provide the Legislative Assembly with any information it requires concerning the Commission's activities.
80 The Commission shall provide the Legislative Assembly, not later than March 31 of each year, a report on its activities during the preceding calendar year.
Duties and Powers of Commission
81 For the purposes of this Act, the duties of the Commission shall consist of:
(a) seeing to the promotion of pay equity;
(b) disseminating information designated to promote understanding and acceptance of the purpose and provisions of this Act;
(c) developing tools to facilitate the achievement of pay equity in enterprises;
(d) lending assistance to enterprises in the establishment of pay equity plans by developing tools to facilitate the implementation of pay equity plans;
(e) facilitating the determination of differences in compensation on an indirect basis by helping to identify potential comparators for comparisons by proxy;
(f) authorizing a pay equity plan further to a request by a pay equity committee or, where applicable, by an employer;
(g) overseeing the establishment of pay equity plans, seeing to the maintenance of pay equity and, to such ends, requiring any information;
(h) assisting in the training of pay equity committee members;
(i) fostering the coordination of efforts within enterprises for the implementation of pay equity plans and fostering the participation of the persons concerned by such plans;
(j) making investigations, either on its own initiative or following a complaint, dispute, settlement or conciliation, and determining, within a reasonable time, the measures to be taken to ensure that the provisions of this Act are being complied with;
(k) making investigations following a complaint filed by an employee of an enterprise alleging discrimination in compensation between a predominantly female job class and a predominantly male job class;
(l) compiling and maintaining statistics regarding pay equity and the implementation of this Act;
(m) facilitating mediation of a reasonable duration between the parties upon their request;
(n) initiating research on pay equity; and
(o) giving advice to the Legislative Assembly, at its request or on its own initiative, on any matter related to pay equity after consulting, if the Commission sees fit to do so, with the bodies most representative of employers, employees and women.
82 The Commission has jurisdiction to exercise its powers under this Act and to decide any questions of fact or law that arise in any matter before it.
Commission's powers of intervention
83 The Commission may require that an employer provide it with
(a) a report setting out the measures it has taken to achieve pay equity or to see to its maintenance, as the case may be; or
(b) any relevant information or document,
within such time as the Commission allots.
84 Where, on the request of an affected party, associated or related enterprises are, in the opinion of the Commission, operated by two or more employers having common control or direction, the Commission may, after affording the affected employers an opportunity to make representations, by order, declare that for the purposes of this Act the enterprises constitute a single enterprise and the employers constitute a single employer.
85 The employer shall show that the remuneration afforded to its employees in a predominantly female job class is at least equal to that afforded for equal work to its employees in a predominantly male job class.
86 Following a complaint or a dispute, the Commission shall investigate the matter in order and endeavour to effect a written settlement between the parties.
87 If no settlement is possible, the Commission shall determine the measures to be taken so that pay equity may be achieved in accordance with this Act.
88 The Commission shall cease to act in favour of an employee, certified union or recognized association representing employees when the employee, union or association so requests, subject to the Commission's ascertaining that such request is made freely and voluntarily.
89 The Commission may refuse or cease to act where a complaint is frivolous, vexatious or in bad faith.
90 The Commission's decision shall state, in writing, the reasons on which it is based, and indicate any remedy that the Commission considers appropriate.
91 If a party is not satisfied with the Commission's decision, it may submit the matter to the Labour and Employment Board within 90 days after the decision is issued.
92 The Labour and Employment Board may join two or more complaints and deal with them in the same proceeding if the complaints, as the case may be,
(a) are made against the same person and pertain to the same or a similar issue; or
(b) raise the same questions of fact or law.
93(1) The Labour and Employment Board has exclusive jurisdiction to exercise the powers conferred upon it by this Act and to decide questions of fact or law that arise in a matter before it.
93(2) Decisions of the Labour and Employment Board are final and may not be appealed.
Offences and punishment
94(1) Anyone who
(a) contravenes a provision of this Act;
(b) fails to provide the Commission with a report, a document or information, or provides false information;
(c) takes or attempts to take reprisals;
(d) hinders or attempts to hinder the Commission, a member or agent of the Commission, or a member of the Commission's personnel in the performance of his or her duties,
is guilty of an offence punishable by a fine not less than $1,000 and not more than $50,000.
94(2) For a second or subsequent offence, the fines set out in subsection (1) shall be doubled.
95 Anyone who aids, encourages, counsels, allows, authorizes or orders another person to commit an offence under section 94 is deemed to be guilty of an offence under section 94.
96(1) The Commission may commence a prosecution by way of summary conviction for an offence under this Act.
96(2) Prosecutions for offences under this section may be commenced only by or with the consent of the Attorney General of New Brunswick.
96(3) In determining the amount of the fine under section 94, the court shall consider, among other factors, the harm caused and the benefits derived from the offence.
97 The limitation period for prosecutions for offences under this Act is one year.
Examination and review
98(1) The Premier of New Brunswick shall commence a review of this Act seven years after the date on which this Act comes into force.
98(2) A review under subsection (1) shall be conducted in the form and manner prescribed by regulation.
99 The Arbitration Act does not apply under this Act.
100 The Lieutenant-Governor in Council may make regulations:
(a) concerning the functions and powers of the Commission;
(b) defining a word or phrase used but not defined in this Act; and
(c) concerning formulas for the purposes of this Act or the regulations hereunder.
101 The Pay Equity Act, chapter P-5.01 of the Acts of New Brunswick, 1989, is hereby repealed.
Coming into force
102 This Act comes into force on a day to be fixed by proclamation.