XVIII. Equal Pay for Equal Work
Ontario has legislation called the Pay Equity Act to ensure that women and men receive equal pay for performing jobs that may be very different but are of equal value.
The Employment Standards Act, 2000 (ESA), on the other hand, has provisions that ensure women and men receive equal pay for performing substantially the same job. That is, they are entitled to receive equal pay for "equal work", meaning work that is substantially the same, requiring the same skill, effort and responsibility and performed under similar working conditions in the same establishment.
According to the ESA, a woman cannot be paid less than a man if she is doing "equal work." This also applies in reverse; a man cannot receive less pay than a woman if he is doing "equal work."
Substantially the Same Work
This means that the work is similar enough that it could reasonably be considered to fall within the same job classification. The jobs do not have to be identical in every respect, nor do they have to be interchangeable.
Substantially the Same Skill, Effort and Responsibility
Skill refers to the degree or amount of knowledge, physical, or motor capability needed by the worker performing the job.
Effort is the physical or mental exertion needed to perform a job.
Responsibility is measured by the number and nature of a worker's job obligations, the degree of accountability, and the degree of authority exercised by a worker in the performance of the job.
Similar Working Conditions
Working conditions refer to such things as exposure to the elements, health and safety hazards, workplace environment, hours of work and any other terms or conditions of employment.
The Same Establishment
This means a location where the employer carries on business. Two or more locations are considered a single establishment if:
- they are in the same municipality;
or - there are common "bumping rights" for at least one employee across municipal borders.
When two people do substantially the same work
Andy and Kyra both work on a production line. Kyra packs plastic spoons into small boxes, and Andy packs the small boxes into bigger boxes. There is not anything about either of these jobs that requires more skill, effort or responsibility.
Andy and Kyra are doing substantially the same work, and they must be paid the same wages (unless one of the exceptions listed below applies).
When a business has two locations
An employer owns two clothing stores in the same city. One sells women's clothes, and the staff are women. The other sells men's clothes, and the staff are men. The two stores are considered one establishment under the ESA, because they are in the same municipality.
Since the staff in both stores do substantially the same work, selling clothes, everyone should receive the same pay.
If employees have not been paid equal pay for equal work, steps must be taken to change this. Employers must raise wages to achieve equal pay. They cannot lower wages to achieve equal pay.
Exceptions
If a man and a woman are doing substantially the same work, they can be paid different rates of pay if the difference is due to:
- A seniority system. Under an established seniority system, the time an employee has worked for an employer is credited. This can be used to justify paying a more senior employee a higher wage than a less experienced employee.
- A merit system. An employee can be paid more money or a bonus based on a system that measures the work performance of the employees objectively.
- A piecework system. An employer may have a system that measures higher quality or quantity of work. If this is the case, an employee can be paid a higher rate for producing more work or better quality work if the system is applied equally to both sexes.
- Any difference that is not based on the gender of the employee. For example, an employee can receive more money for working at night. Or an employee can be paid more while participating in a well-defined training program that has as its goal the advancement of the employee within the organization.
