2022 Bill 3

	3


Second Session, 50th General Assembly 1 Charles III, 2022
BILL 3
AN ACT RESPECTING PAY EQUITY FOR THE PUBLIC SECTOR AND PAY TRANSPARENCY FOR THE PUBLIC AND PRIVATE SECTORS
Received and Read the First Time................................................................
Second Reading............................................................................................
Committee.....................................................................................................
Third Reading...............................................................................................
Royal Assent.................................................................................................
HONOURABLE PAM PARSONS Minister Responsible for Women and Gender Equality
Ordered to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would enact the Pay Equity and Pay Transparency Act.

The Bill would

· require employers in the public sector to establish, maintain and implement compensation practices that are based on the skills, effort and responsibility normally required in the performance of the work and the conditions under which the work is performed irrespective of the gender of employees;

· require employers in the public sector to prepare reports relating to actions taken regarding the establishment, maintenance and implementation of the compensation practices and submit the reports to the Pay Equity Officer;

· designate a commissioner appointed under the Public Service Commission Act to act as the Pay Equity Officer;

· require the Pay Equity Officer to prepare a report regarding employers' compliance with Part I of the Act;

· prohibit all employers from requesting pay history information about a person applying for employment with the employer;

· require all employers to include information regarding pay in publicly advertised job postings;

· require certain employers to prepare pay transparency reports;

· prohibit an employer or a person acting on behalf of an employer from penalizing an employee or applicant where the employee or applicant inquired about or disclosed information regarding pay or requested that the employer comply with the Act; and

· allow a person who alleges that an employer has contravened Part II of the Act to make a complaint to the Director of Labour Standards.

A BILL

AN ACT RESPECTING PAY EQUITY FOR THE PUBLIC SECTOR AND PAY TRANSPARENCY FOR THE PUBLIC AND PRIVATE SECTORS

Analysis

1. Short title

2. Interpretation

3. Crown bound

4. Conflict

PART I
PAY EQUITY

5. Definitions

6. Application of Part

7. Duty of employer

8. Differences in pay

9. Pay equity officer

10. Restrictions

PART II
PAY TRANSPARENCY

11. Pay history information

12. Requirement to provide pay information

13. Pay transparency reports

14. Prohibition

15. Complaint

PART III
OFFENCES AND REGULATIONS

16. Offence

17. Regulations

PART IV
CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

18. RSNL1990 cL-1 Amdt.

19. RSNL1990 cL-2 Amdt.

20. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

1. This Act may be cited as the Pay Equity and Pay Transparency Act.

Interpretation

2. (1) In this Act

(a) "applicant" means an individual who applies for employment with an employer other than an individual who is an employee of the employer at the time of applying;

(b) "contract of service" means a contract, whether or not in writing, in which an employer, either expressly or by implication, in return for the payment of a wage to an employee, reserves the right of control and direction of the manner and method by which the employee carries out the duties to be performed under the contract;

(c) "contractual employee" means an individual employed for a certain term for the purpose of performing certain specified work and whose terms and conditions of employment are specifically stated in a written contract;

(d) "director" means the Director of Labour Standards appointed under section 61 of the Labour Standards Act and includes an officer designated by the director to implement the powers conferred by section 62 of the Labour Standards Act;

(e) "employee" means, except in Part I, an individual who works under a contract of service for an employer;

(f) "employer" means, except in Part I, a person who is a party to a contract of service with an employee;

(g) "executive branch" means a department created under the Executive Council Act or a branch of the executive government of the province;

(h) "government" means

(i) the executive branch, and

(ii) the legislative branch;

(i) "House of Assembly service" means House of Assembly service referred to in section 25 of the House of Assembly Accountability, Integrity and Administration Act;

(j) "job classification" means the positions within the public sector that have similar duties, require similar skills and qualifications and have the same compensation schedule and pay rate or range of pay rates;

(k) "legislative branch" means the House of Assembly service and statutory offices;

(l) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(m) "pay" means straight-time wages, salary and commissions;

(n) "pay equity" means a compensation practice that is based on the relative value of the work performed, irrespective of the gender of employees and includes the requirement that the employer not establish or maintain a difference between the pay paid to employees based on gender who are performing work of equal or comparable value;

(o) "pay equity officer" means the person designated under section 9;

(p) "pay transparency report" means a report referred to in section 13;

(q) "public body" means

(i) a corporation, the ownership of which, or a majority of shares of which, is vested in the Crown,

(ii) a corporation, commission, board or other body, the majority of the members of which, or the majority of members of the board of directors of which, are appointed under an Act of the province, by the Lieutenant-Governor in Council or by a minister of the Crown,

(iii) a court established under an Act of the province,

(iv) a municipality under the Municipalities Act, 1999, the City of Mount Pearl as established by the City of Mount Pearl Act, the City of St. John's as established by the City of St. John's Act and the City of Corner Brook as established by the City of Corner Brook Act,

(v) an authority as defined in the Regional Health Authorities Act,

(vi) Memorial University of Newfoundland,

(vii) College of the North Atlantic,

(viii) a school board established or continued under the Schools Act, 1997,

(ix) the Royal Newfoundland Constabulary, and

(x) a body designated in the regulations as a public body;

(r) "publicly advertised job posting" means an external job posting for a specific job that an employer advertises to the general public in any manner, but does not include recruitment campaigns, general help wanted signs or positions that are only advertised to existing employees of the employer;

(s) "public sector" means

(i) government, and

(ii) a public body;

(t) "public service commission" means the commission appointed under section 5 of the Public Service Commission Act;

(u) "statutory office" means the office of a statutory officer; and

(v) "statutory officer" means

(i) the Information and Privacy Commissioner,

(ii) the Auditor General,

(iii) the Child and Youth Advocate,

(iv) the Chief Electoral Officer,

(v) the Citizens' Representative,

(vi) the Commissioner for Legislative Standards, and

(vii) the Seniors' Advocate.

(2) In determining the value of work performed for the purposes of paragraph (1)(n), the criterion to be applied is the composite of the skill, effort and responsibility normally required in the performance of the work and the conditions under which the work is performed.

Crown bound

3. This Act binds the Crown.

Conflict

4. In the event of a conflict between a provision of this Act or the regulations and a provision of any other Act or regulations, this Act and the regulations prevail.

PART I
PAY EQUITY

Definitions

5. In this Part,

(a) "employee" means a person who is employed in the public sector but does not include

(i) a contractual employee,

(ii) a student who is

(A) employed under a program designated by the employer as a student employment program which combines practical experience with academic training,

(B) employed by the educational institution the student is attending where the student performs work related to the student's area of study, or

(iii) a person employed to make or conduct a temporary or special inquiry, investigation or examination, on behalf of the government or the House of Assembly;

(iv) a justice or a judge of a court established under the Judicature Act, the Court of Appeal Act or the Provincial Court Act, 1991, and

(v) a member of the House of Assembly; and

(b) "employer" means the public sector.

Application of Part

6. (1) This Part applies to all employees employed in the public sector with the exception of employees who are employed with a public body that has less than 10 employees.

(2) Notwithstanding subsection (1), the Lieutenant-Governor in Council may, by regulation, exempt an employee or class of employees from the application of this Part.

Duty of employer

7. (1) An employer shall

(a) establish pay equity in the public sector; and

(b) take the action that is necessary to maintain, and where necessary implement, pay equity in the public sector.

(2) The requirements in paragraph (1)(b) are satisfied where an employer establishes pay equity, regardless of whether pay equity was established before or after the coming into force of this Part.

(3) An employer shall in accordance with the regulations prepare reports relating to pay equity and the actions taken under subsection (1) and submit the reports to the pay equity officer in the time periods prescribed in the regulations.

Differences in pay

8. This Act does not apply so as to prevent differences in pay where the employer is able to show that the difference is the result of

(a) a formal seniority system that does not discriminate on the basis of gender;

(b) a merit system that does not discriminate on the basis of gender;

(c) a temporary employee training or development assignment that is equally available to all employees and that leads to career advancement for employees involved in the program;

(d) the personnel practice known as red-circling, where the value of a position has been downgraded and the pay of the incumbent employee has been frozen or the employee's increases in pay have been curtailed until the pay for the downgraded positon is equivalent to or greater than the pay payable to the incumbent; or

(e) a skills shortage that is causing a temporary inflation in pay because the employer is encountering difficulties in recruiting and retaining employees with the requisite skills for positions in a job classification.

Pay equity officer

9. (1) The Lieutenant-Governor in Council shall designate a commissioner appointed under the Public Service Commission Act as the pay equity officer.

(2) The pay equity officer shall, in addition to the commissioner's other responsibilities under the Public Service Commission Act, do the following:

(a) review the reports referred to in subsection 7(3);

(b) prepare a report regarding employers' compliance with this Act and the regulations;

(d) perform any other duties prescribed in the regulations.

(3) The pay equity officer shall submit the report referred to in paragraph (2)(b) to the Speaker of the House of Assembly, and if the House of Assembly is then sitting, the Speaker shall table the report before the House of Assembly at the earliest opportunity after receipt of the report.

(4) Section 19.1 of the House of Assembly Act applies to a report required under subsection (3) as if the report were a report of an officer of the House of Assembly.

Restrictions

10. Notwithstanding any other provision of this Part, an employer shall not, in order to establish, maintain or implement pay equity,

(a) reduce, freeze or red-circle the pay of an employee; or

(b) place an employee in a lower step of a pay range that has been adjusted upward.

PART II
PAY TRANSPARENCY

Pay history information

11. (1) An employer shall not seek pay history information about an applicant by any means, whether personally or through an agent.

(2) Nothing in this section prohibits

(a) an applicant from voluntarily and without prompting disclosing pay history information to an employer or an employer's agent; or

(b) an employer from seeking information about the ranges of pay or aggregate pay provided for positions comparable to the position for which the applicant is applying.

(3) Where an applicant has made a disclosure of the pay history information referred to in paragraph (2)(a) or the employer has obtained the information referred to in paragraph (2)(b), nothing in this section prohibits the employer from considering or relying on the information in determining the pay for the applicant.

(4) This section does not apply to pay history information that is publicly available.

Requirement to provide pay information

12. An employer who publishes a publicly advertised job posting shall include the following information in the posting:

(a) the expected pay for the position; or

(b) the range of expected pay for the position.

Pay transparency reports

13. (1) An employer or class of employers prescribed in the regulations shall collect the information prescribed in the regulations for the purposes of preparing a pay transparency report.

(2) A pay transparency report shall

(a) be submitted to the minister in the form, manner and time period set by the minister;

(b) contain the information prescribed in the regulations; and

(3) An employer who is required to prepare a pay transparency report shall post it online or in at least one conspicuous place in every workplace of the employer where it is likely to come to the attention of employees in that workplace.

(4) The minister shall publish, or otherwise make available to the public, the pay transparency reports submitted under subsection (2).

Prohibition

14. An employer or a person acting on behalf of an employer shall not intimidate, dismiss or otherwise penalize an employee or applicant or threaten to do so because the employee or applicant has

(a) made inquiries to the employer about the employee's or applicant's pay;

(b) made inquiries or requested information relating to the employer's pay policies;

(d) provided information about the employer's compliance or non-compliance with the requirements of this Part to the director; or

(e) asked the employer to comply with this Part.

Complaint

15. (1) A person who alleges that an employer has contravened this Part may make a complaint to the director.

(2) The director may, under the control and supervision of the minister responsible for the Labour Standards Act,

(a) receive a complaint regarding a contravention of this Part or a regulation made under this Part;

(b) investigate a complaint made under paragraph (a);

(c) make a determination respecting a complaint received under paragraph (a) or following an investigation under paragraph (b); and

(d) immediately communicate, in writing, the determination to the person who filed the complaint and the person who is alleged to have contravened this Part or a regulation made under this Part.

(3) Where an employee is dismissed contrary to section 14, the onus of proving that the reason for dismissal is unrelated to one or more of the employee's actions referred to in paragraphs 14(a) to (e) rests with the employer.

(4) Where the director conducts an investigation under paragraph (2)(b), the director shall provide the persons referred to in paragraph (2)(d) with an opportunity to be heard either orally, in person or represented by counsel, or by making a written submission to the director.

(5) A complaint to the director may not be made after the expiry of

(a) 2 years from the date of the alleged contravention of this Part; or

(b) where an employee's contract of service is terminated, 6 months from the date the employee's contract is terminated.

(6) A determination of the director under this section may be filed with the Supreme Court and, when filed, the determination is enforceable as an order of that court.

(7) The director has the powers conferred under section 64 of the Labour Standards Act to determine compliance with this Part.

(8) Without limiting the power of the director to make a determination under paragraph (2)(c), the director may

(a) following receipt of a complaint under paragraph (2)(a); or

(b) following an investigation under paragraph (2)(b),

submit the complaint or question arising from the investigation to the Labour Relations Board for a decision and an order that it considers necessary or appropriate having regard to the nature of the complaint or question submitted.

(9) Where the director submits a complaint or a question arising from an investigation to the Labour Relations Board, the director shall not be considered to be acting on behalf of a complainant in doing so.

(10) A complainant or employer may, within 30 days after the receipt of the determination, file an application for a review of that determination with the Labour Relations Board.

PART III
OFFENCES AND REGULATIONS

Offence

16. A person who wilfully contravenes a provision of this Act or the regulations is guilty of an offence and liable, on summary conviction, to a fine of not more than $1,000 where the person is an individual and not more than $25,000 where the person is a corporation or public body.

Regulations

17. The Lieutenant-Governor in Council may make regulations

(a) designating a body as a public body for the purposes of subparagraph 2(1)(q)(x);

(b) exempting an employee or class of employees from the application of Part I;

(d) prescribing the time period in which a report referred to in subsection 7(3) is required to be submitted;

(e) prescribing additional duties of the pay equity officer;

(f) prescribing employers or classes of employers for the purposes of subsection 13(1);

(g) prescribing the information to be collected for the purposes of subsection 13(1);

(h) prescribing the information to be included in a pay transparency report;

(i) prescribing additional requirements that apply to a pay transparency report;

(j) defining a word or expression used but not defined in this Act; and

(k) generally to give effect to the purpose of this Act.

PART IV
CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

RSNL1990 cL-1 Amdt.

18. Section 18 of the Labour Relations Act is amended by adding immediately after paragraph (l) the following:

(l.1) consider and decide upon those matters referred to it which fall within the scope and intent of Part II of the Pay Equity and Pay Transparency Act;

RSNL1990 cL-2 Amdt.

19. Subsection 62(1) of the Labour Standards Act is amended by adding immediately after paragraph (c) the following:

(c.1) receive and investigate complaints under Part II of the Pay Equity and Pay Transparency Act and make a determination of whether Part II of that Act has been contravened;

Commencement

20. (1) This Act, except for subparagraphs 2(1)(q)(i) to (x) and 2(1)(s)(ii) and sections 11 to 15 come into force on April 1, 2023.

(2) Subparagraphs 2(1)(q)(i) to (x) and 2(1)(s)(ii) and sections 11 to 15 come into force on a day or days to be proclaimed by the Lieutenant-Governor in Council.