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Wednesday, October 20, 1999

A simple pay equity lesson: jurists won't do dirty work
Appeal quashed: Chretien program to spend surplus may take a hit
Giles Gherson Political Editor
National Post

OTTAWA - "We believe in pay equity!"

The defiant and possibly foolhardy declaration from Lucienne Robillard, the Treasury Board President, rang through the House of Commons yesterday, only hours after Justice John Evans of the Federal Court issued a ruling that quashed the Chretien government's legal appeal to sharply reduce an estimated 200,000 pay equity claims from past and present public servants.

Ms. Robillard's brash plug for pay equity, even as her officials huddled frantically with counterparts from the Privy Council Office and the Justice Department to figure out some kind of credible game plan, predictably delighted many backbench Liberals who cherish government for the little guy -- or, in this case, gal in any form. But it sent shivers through a good portion of her cabinet colleagues.

The reason: Only a week after the Chretien government's feel-good Throne Speech replete with 74 ways to spend a surplus over the next two years, along comes Ms. Robillard and Justice Evans with a seventy-fifth.

And with a $3-billion to $5-billion price tag, it may end up trumping most of the other heap of initiatives that were supposed to define the activist last hurrah of the Chretien years.

As one leading official said yesterday, providing just one example of the potential heft of Ms Robillard's fervour for pay equity: "How are we going to explain to taxpayers that the tax cuts we've been hinting at may have to be superseded by payments to a group of mostly retired civil servants?" Or, for that matter, that extra payments to low income families through a proposed enhancement to the child tax credit may have to be put off due to a sudden shortage of funds.

Government public relations specialists will have to retool the rhetoric about how the Chretien government wants to shift the weight of federal spending to the nation's needy children and away from its 30-year bias in favour of elderly Canadians. If this ruling stands, pay equity is one large step closer to providing a windfall worth up to $20,000 a head to over 100,000 retirees who voluntarily spent their careers in the public service as clerks and secretaries. That they toiled at wages that were openly advertised and, in fact, which often surpassed comparable pay in the private sector, matters not a whit.

For it turns out, pay equity doesn't mean equal pay between similar public and private sector jobs, but between the genders within the public sector, and according to an arbitrary accounting of value between sets of jobs commonly held by men and others commonly held by women.

What Justice Evans shot down yesterday was a federal argument that the Canadian Human Rights Tribunal adopted a completely spurious methodology when it issued its landmark pay equity decision in July, 1998. He upheld the Tribunal settlement, awarding an estimated 200,000 current and former government employees, mostly female and mostly retired, 13 years of back-pay plus interest. Ms. Robillard's tough-minded predecessor, Marcel Masse -- himself a former top level public servant before he entered politics and now a senior diplomat -- promptly appealed the Tribunal ruling. He contended that the Tribunal had massively and erroneously exaggerated the extent of the government's pay equity liability because it had actually compared different government jobs of different value under the guise of determining equal pay for jobs of equal value.

Specifically, the government complained that the Tribunal's tortuous job-points rating system ended up comparing six categories of so-called female dominated job categories, from secretaries to librarians and health services staff, with "male-dominated" professions including junior auditors, lawyers and computer analysts. In appealing the Tribunal -- and in the process taking no small amount of grief from a strong segment of the Liberal caucus for whom pay equity is akin to motherhood, never mind the cost or risk of sideswiping the rest of the Liberal program -- Mr. Masse was buoyed from a ruling by another Federal Court Judge, Francis Muldoon. In a separate pay equity case involving Bell Canada, Judge Muldoon had endorsed a far simpler "job-to-job" comparison of pay, which, if implemented by the federal government, would have slashed its pay equity price tag to an estimated $100-million.

But Judge Muldoon's ruling was repudiated in a federal Court of Appeal judgment last November, a reversal that the Supreme Court refused to reconsider, forcing Bell Canada into a costly settlement. And yesterday Judge Evans dealt the blow directly to the feds.

The most obvious way to square Ms. Robillard's circle -- standing foursquare for pay equity while simultaneously trying to duck the enormous cost -- is to kick the issue down the road one more time, with an appeal to the Supreme Court. But if what was sauce for the Bell Canada goose is sauce for the federal government gander, that avenue may be abruptly closed by the leading court.

If there's one stern message from the court in recent years, it is that whether the topic is low-paid female workers or native fishermen, if Ottawa cannot stand the financial cost of loosely worded, politically correct statutes, it should revise them, not count on jurists to do their dirty work for them.

Copyright Southam Inc.