The Supreme Court of Canada has sent a pay equity battle involving flight attendants that began in 1991 back to the Canadian Human Rights Commission, criticizing Air Canada for dragging its heels in the process.
The court rejected an argument by the airline that flight attendants (mostly female) could not be compared to pilots and mechanics (mostly male) because the three groups of employees belong to three distinct bargaining units set up 60 years ago and were covered by three separate collective agreements. The court said that argument would turn collective bargaining into a tool to consolidate discriminatory practices.
The court said the flight attendants, pilots and mechanics all worked for the same “establishment” as defined in the Canadian Human Rights Act, the federal legislation that governs pay equity for federally regulated employers.
It said that, regardless of geographic or regional differences, or differences in collective agreements, employees may be found to be in the same “establishment” if they are subject to a common wage and personnel policy.
The court then turned its attention to whether Air Canada has a “common personnel and wage policy.” It underscored the fact that an inquiry into this is not just an examination of a collective agreement but rather the policies, methods and objectives of the employer itself which could be considered a common policy.
“If the inquiry were to focus on differences in terms of collective agreements, as suggested by Air Canada, workplaces would be exempt from the very comparisons the act contemplated,” the court said. “‘Establishment’ would be equated with ‘bargaining unit,’ thereby undermining the purposes of the act, namely to determine whether wages paid to women reflect an undervaluation based on systemic discrimination resulting not only in occupational segregation, but also in diminished bargaining strength and, likely, diminished wages and benefits.”
The court chastised Air Canada’s narrow view of “common personnel and wage policy” in fighting the battle.
“It is regrettable that Air Canada has resisted this pragmatic definition of ‘common personnel and wage policy’ for almost 15 years, creating enormous expense for itself and the public, and intolerable delay in wage equity, should the flight attendants ultimately succeed,” the court said.
Equal pay legislation was first passed by parliament in 1956, mandating equal pay for equal work. That definition has evolved over the years and is now equal pay for work of equal value.
For more information see:
C.U.P.E. v. Canadian Airlines International Ltd.
, 2006 CarswellNat 43 (S.C.C.)
The union's view
The Canadian Union of Public Employees (CUPE), the union representing the flight attendants, said the decision paves the way for it to prove Air Canada is discriminating against Flight Attendants, a predominantly female workforce
“We started this fight back in 1991,” said Pamela Sachs, president, Air Canada component of CUPE. “We have spent 15 years arguing, basically, that Flight Attendants work for the same 'establishment' as Air Canada’s pilots and technical operations personnel.”
The Flight Attendant’s union launched its human rights complaint in 1991, claiming Air Canada discriminated against flight attendants, a predominantly female group, by paying them differently than mechanics and pilots, who were predominately male.
Air Canada insisted that, since the three groups were in different bargaining units, they all worked in different “establishments”. The commission and CUPE disagreed and the issue went to a Canadian Human Rights Tribunal, and then to the Federal Court, Trial Division that ruled the tribunal did not err in its interpretation of the word “establishment.”
CUPE and the commission appealed to the Federal Court of Appeal, which found that the pilots, mechanics and flight attendants all work for the same establishment, namely Air Canada.
Air Canada appealed the Federal Court of Appeal’s decision to the Supreme Court of Canada. The Supreme Court unanimously dismissed Air Canada’s appeal and awarded costs to CUPE.
“This is an important win for all unions, since the courts have ruled once and for all that “establishment” cannot be equated with “bargaining unit” or collective agreement”,” said Paul Moist, president of CUPE National. “The ruling affects not only Air Canada Flight Attendants, but any other unionized employee group that has been denied a pay equity review.”
“We will finally be able to show that our predominantly female workforce has been discriminated against for 30 years,” said Sachs.
The Air Canada Component of CUPE represents the 7,000 flight attendants who work for Air Canada. CUPE is Canada's largest union, representing half a million workers in the public and private sectors.
Flight attendants’ pay equity case clears major hurdle
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