Pay Equity Act (S.C. 2018, c. 27, s. 416)

Record Keeping

Marginal note:Private sector and territorial governments — establishment of pay equity plan

• 90 (1) An employer referred to in any of paragraphs 3(2)(e) to (i) must

  • (a) retain a copy of the final version of any pay equity plan that it posts in accordance with section 55, subsection 57(2) or paragraph 94(1)(b) until the day on which it posts in accordance with section 83 or subsection 85(2) the final version of the pay equity plan as first updated, or any later date that is prescribed by regulation; and

  • (b) retain all records, reports, electronic data or other documents relevant to the establishment of the pay equity plan for the period during which it is required under paragraph (a) to retain a copy of the final version of the pay equity plan.

• Marginal note:Private sector and territorial governments — update of pay equity plan

  (2) An employer referred to in any of paragraphs 3(2)(e) to (i) must

  • (a) retain a copy of any revised pay equity plan that it posts in accordance with section 83 or subsection 85(2) — as well as a copy of the document referred to in subsection 79(2) that it posts under that section or subsection — until the day on which it posts the next revised pay equity plan in accordance with section 83 or subsection 85(2), or any later day that is prescribed by regulation; and

  • (b) retain all records, reports, electronic data or other documents relevant to the update of the pay equity plan for the period during which it is required under paragraph (a) to retain a copy of the final version of the revised pay equity plan.

Marginal note:Extension of time for retaining documents

• 91 (1) The Pay Equity Commissioner may order an employer referred to in section 90 to retain the copies and other documents referred to in that section for any period set out in the order that is longer than the period that they are required to retain them under that section.

• Marginal note:Obligation to retain documents for extended period

  (2) The employer must retain the copies and other documents referred to in section 90 for the period set out in the order unless it receives a copy of the order after the end of the period that it is required to retain the copies and other documents under that section and it has already disposed of them.

Transfers or Leases

Marginal note:Federal private sector — transfer or lease

92 If a federal work, undertaking or business, as defined in section 2 of the Canada Labour Code, or any part of it — or a corporation established to perform any duty or function on behalf of the Government of Canada, or any part of the corporation, other than a corporation named in Schedule IV or V of the Financial Administration Act — is leased or transferred by sale, merger or other­wise from one employer, in this section referred to as the “former employer”, to another employer, in this section referred to as the “new employer”, and the former employer had posted, or is deemed to be the employer that had posted, as the case may be, a pay equity plan in accordance with section 55, subsection 57(2), section 83 or subsection 85(2),

• (a) the new employer is deemed to be the employer that posted the pay equity plan;

• (b) the new employer is liable for the former employer’s obligations under this Act that arose as a result of the posting of the pay equity plan; and

• (c) if the new employer was not subject to this Act immediately before the day of the transfer or lease, it becomes subject to this Act on that day.

Marginal note:Federal private sector — re-tendering

93 If, by reason of a contract being awarded through a re-tendering process, an employer, in this section referred to as the “new employer”, becomes responsible for the carrying out or the operation of a federal work, undertaking or business, as defined in section 2 of the Canada Labour Code, or any part of it, that was previously carried out or operated by another employer, in this section referred to as the “former employer”, and the former employer had posted, or is deemed to be the employer that had posted, as the case may be, a pay equity plan in accordance with section 55, subsection 57(2), section 83 or subsection 85(2),

• (a) the new employer is deemed to be the employer that posted the pay equity plan;

• (b) the new employer is liable for the former employer’s obligations under this Act that arose as a result of the posting of the pay equity plan; and

• (c) if the new employer was not subject to this Act immediately before the day on which the contract becomes effective, it becomes subject to this Act on that day.

Marginal note:Provincial business

• 94 (1) If, after the coming into force of this section, a person that carries out or operates a provincial business becomes an employer referred to in any of paragraphs 3(2)(e) to (i), and the person was, while carrying out or operating the provincial business, required to establish a pay equity plan under the laws of a province,

  • (a) for the purpose of calculating, under subparagraph 9(a)(ii) or (b)(ii), the average of the number of the employer’s employees in the calendar year in which the person becomes an employer, the persons who were employed in the provincial business in that calendar year are deemed to have been employees of that employer in that calendar year; and

  • (b) if the employer becomes subject to this Act on a day that is on or after the day that is 18 months after the date on which this section comes into force, the employer must, despite subsection 55(1), post the final version of the pay equity plan no later than the day that is 18 months after the date on which the employer became subject to this Act.

• Marginal note:Definition of provincial business

  (2) In subsection (1), provincial business means a work, undertaking or business, or any part of a work, undertaking or business that is subject to the employment laws of a province.

Collective Agreements

Marginal note:Effect on collective agreements

95 In the event of an inconsistency between the version of a pay equity plan most recently posted in accordance with section 55, 57, 83 or 85 or paragraph 94(1)(b), as the case may be, and any collective agreement governing the employees to whom the pay equity plan relates, that pay equity plan prevails to the extent of the inconsistency. Any increase in compensation payable by an employer to employees under this Act is deemed to be incorporated into and form part of the collective agreements governing those employees.

Implementation

Marginal note:90-day period

96 Despite any other provision of this Act, an employer may not be the subject of a complaint under this Act, or be served with a notice of violation under this Act, where the subject-matter of the complaint or alleged violation is the failure of the employer to pay the amount of any increase in compensation — or any lump sum — payable under this Act within the first 90 days after the day on which that amount is payable.

Interest

Marginal note:Failure to pay amount due

• 97 (1) If an employer fails to pay an amount to an employee when required under section 61, 62 or 88, as the case may be, the employer must pay to the employee interest on the amount. The interest is to be calculated and compounded daily on the amount, at the rate that is prescribed by regulation or calculated in a manner that is prescribed by regulation, for the period beginning on the first day after the day on which the amount was required to be paid and ending on the day on which the amount is paid.

• Marginal note:Interest rate if none prescribed

  (2) If no regulations are made for the purpose of subsection (1), the rate of interest is the rate per annum that is the aggregate of 2% per annum and the bank rate in effect on the day in respect of which the interest is calculated.

Prohibitions

Marginal note:Reduction of compensation

98 An employer must not reduce the compensation payable to any of its employees in order to achieve pay equity.

Marginal note:Obstruction

99 It is prohibited to obstruct, by act or omission, the Pay Equity Commissioner or his or her delegate while they are engaged in the exercise of powers or the performance of duties or functions under this Act.

Marginal note:False or misleading statements — Pay Equity Commissioner

100 It is prohibited to knowingly make any false or misleading statement verbally or in writing to the Pay Equity Commissioner, or to his or her delegate, while they are engaged in the exercise of powers or the performance of duties or functions under this Act.

Marginal note:False or misleading statements — records, reports, etc.

101 It is prohibited for any person to knowingly make, or participate in, assent to or acquiesce in the making of a false or misleading statement in any record, report, electronic data or other document that the person is required to prepare, retain or provide under this Act.

Marginal note:Reprisal by employer

102 No employer and no person acting on an employer’s behalf is to take reprisal against a person, including by refusing to employ or to continue to employ the person, or suspending or laying off the person or otherwise discriminating against the person with respect to employment, pay or any other term of employment or intimidating, threatening or disciplining the person, because the person has

• (a) testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Act;

• (b) filed a complaint or exercised any right under this Act; or

• (c) taken an action in compliance with this Act or refused to take an action that would have resulted in non-compliance with this Act.

Marginal note:Reprisal by bargaining agent

103 No bargaining agent or person acting on behalf of a bargaining agent is to take reprisal against a person, including by

• (a) taking disciplinary action against or imposing any form of penalty on the person by applying to that person in a discriminatory manner the standards of discipline of the bargaining agent, because that person

  • (i) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Act,

  • (ii) has filed a complaint or exercised any right under this Act, or

  • (iii) has taken an action in compliance with this Act or refused to take an action that would have resulted in non-compliance with this Act;

• (b) expelling or suspending the person from membership in the trade union or employee organization or taking disciplinary action against or imposing any form of penalty on the person by reason of that person having refused to perform an act that is contrary to this Act; or

• (c) discriminating against the person with respect to employment, a term of employment or membership in a trade union or employee organization, or intimidating or coercing the person or imposing a financial or other penalty on the person, because that person

  • (i) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Act,

  • (ii) has filed a complaint or exercised any right under this Act, or

  • (iii) has taken an action in compliance with this Act or refused to take an action that would have resulted in non-compliance with this Act.

PART 5Pay Equity Commissioner

Pay Equity Commissioner’s Role

Marginal note:Mandate — Pay Equity Commissioner

• 104 (1) The Pay Equity Commissioner’s mandate is to

  • (a) ensure the administration and enforcement of this Act;

  • (b) assist persons in understanding their rights and obligations under this Act; and

  • (c) facilitate the resolution of disputes relating to pay equity.

• Marginal note:Duties

  (2) In carrying out his or her mandate, the Pay Equity Commissioner must

  • (a) monitor the implementation of this Act, including the establishment and updating of pay equity plans;

  • (b) offer assistance to employers, employees and bargaining agents in relation to pay equity matters and applications, including in relation to complaints, objections and disputes, and decide any matter or application over which he or she has jurisdiction under this Act;

  • (c) develop tools to promote compliance with this Act;

  • (d) educate and inform employers, employees and bargaining agents of their rights and obligations under this Act;

  • (e) undertake and publish research related to pay equity matters; and

  • (f) maintain close liaison with similar bodies or authorities in the provinces in order to coordinate efforts when appropriate.

Marginal note:Delegation

• 105 (1) The Pay Equity Commissioner may delegate, subject to any restrictions or limitations that he or she may specify, any of his or her powers, duties and functions under this Act — other than those set out in sections 104, 114, 115 and 117 and the power to delegate under this section — to any person or class of persons other than the Chief Commissioner of the Canadian Human Rights Commission.

• Marginal note:Certificate of delegation

  (2) Each person to whom powers, duties or functions are delegated under subsection (1) must be provided with a certificate of delegation in the form established by the Pay Equity Commissioner and that person must, when exercising those powers or performing those duties or functions, produce the certificate to any person who asks to see it.