LEGISLATION
The right to equal pay for work of equal value is found in section 40 of the Public Service Act. It was passed by the Legislative Assembly in 2003 and became law on July 1, 2004.
The left hand column sets out each part of section 40. The right hand column explains what each part means.
40. In this section and in sections 40.1 to 40.7, "complaint" means a complaint of discrimination in contravention of section 40.1; (plainte) "party" means an employee who files a complaint under subsection 40.4(1), the employer of the employee who filed the complaint, and any employees’ association that is a party to a collective agreement that provides for the pay that is the subject of the complaint; (partie) "pay" means any form of payment made by an employer for work performed by an employee and includes salary, commission, vacation pay, severance pay, pay in lieu of notice of termination, bonuses, the value of any board, rent or housing provided, contributions to a disability plan or pension plan and any other advantage received directly or indirectly by the employee. (rémunération) |
This section defines some key words: “Party” is defined to make sure that the employee who makes a complaint, his or her employer and his or her union can all participate in the complaint. “Pay” is defined to include everything an employee receives from his or her employer for doing work for the employer. This ensures that employers cannot pay male and female employees performing work of equal value the same base wages but give only the men (or the women) extra benefits, such as free housing or bonuses. |
40.1. (1) No employer shall establish or maintain differences in the rate of pay between male and female employees who perform work of equal value in the same establishment. |
This section says what the right to equal pay for work of equal value is. An employer must provide equal pay to its male and female employees who work in the same “establishment” in the public service and who perform work of equal value to the employer. “Establishment” is defined in s. 40.1(4). |
40.1(2) It is not a contravention of subsection (1) if a difference in rate of pay is attributable to (a) a seniority system, (b) a merit system, (c) a system that measures earnings by quantity or quality of production or performance, (d) a compensation or hiring system that recognizes the existence of a labour shortage in respect of that field of work; (e) a compensation or hiring system that recognizes regional differences in the cost of living, (f) a downgrading, reclassification or demotion process or system, (g) the existence of a temporary rehabilitation or training program, provided that these systems, processes or programs do not discriminate on the basis of sex. |
This section says that an employer is permitted to pay its male and female employees doing work of equal value differently if the reason for the difference in pay is one of the 7 reasons listed in this subsection. For example, an employer can pay male employees more than female employees who do work of equal value if it can prove that this is only because the men happen to have more seniority than the women. |
| 40.1(3) No employer shall reduce the rate of pay of an employee in order to comply with subsection (1). | This section makes sure that, if the employer has contravened the right to equal pay for work of equal value, it must raise the pay of the lower-paid employees. It may not lower the pay of the higher-paid group. |
40.1(4) For the purposes of this section, each of the following groups of employees is a separate establishment: (a) employees of the public service other than employees of the Northwest Territories Power Corporation or teachers; (b) employees of the Northwest Territories Power Corporation; (c) teachers. |
This section divides the public service into three establishments: employees of the Northwest Power Corporation, teachers, and all other public service employees. Only male and female employees who work in the same establishment can have the value of their work and their pay compared. For example, female teachers could not make a complaint that they are paid less than male employees who perform work of equal value but work for the Power Corporation. |
40.1(5) In assessing the value of work performed by employees in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed. |
This section explains how to decide what the value of a job is. It says that every job can be evaluated based on the same 4 factors: the amount of skill the job requires, the amount of effort that it takes to do it, how much responsibility the job has, and the working conditions in which the job is done. Each of these aspects of the job can be given a number value. When the number values of each of the 4 parts of the job are added, this number is the value of the job. This way, a job that requires special skills will get more points for skill than a job that does not require special skills. This allows dissimilar jobs to be compared. For example, a job that requires a lot of skill and effort, but has little responsibility and is done in an office could have the same value as a job that does not require much skill or effort, but carries a lot of responsibility and is performed in a difficult working environment. |
40.2. (1) The Commissioner, on the recommendation of the Legislative Assembly, shall appoint an Equal Pay Commissioner to exercise the powers and perform the duties set out in this Act. |
This section say that the Equal Pay Commissioner is appointed directly by the Legislative Assembly so he or she is independent of the government. |
40.2(2) A person is eligible to be appointed as Equal Pay Commissioner if he or she (a) has expertise in the study and application of the right to equal pay for work of equal value; and (b) is not a member of the public service. |
This section makes sure that the Equal Pay Commissioner is an expert in equal pay and that he or she is independent of the public service. |
(3) Subject to subsections (5) to (7), the Equal Pay Commissioner holds office during good behaviour for a term of four years. (4) A person holding office as Equal Pay Commissioner continues to hold office after the expiry of his or her term of office until he or she is re-appointed, a successor is appointed or a period of six months has expired, whichever first occurs. (5) The Equal Pay Commissioner may resign at any time by notifying the Speaker of the Legislative Assembly in writing or, if the Speaker is absent or unable to act or the office of the Speaker is vacant, by so notifying the Clerk of the Legislative Assembly. (6) The Commissioner, on the recommendation of the Legislative Assembly, may, for cause or incapacity, suspend or remove from office the Equal Pay Commissioner. (7) If the Legislative Assembly is not sitting, the Commissioner, on the recommendation of the Board of Management of the Legislative Assembly, may suspend the Equal Pay Commissioner for cause or incapacity (8) The Commissioner, on the recommendation of the Board of Management of the Legislative Assembly, may appoint an eligible person, as described in subsection (2), as acting Equal Pay Commissioner when (a) the Equal Pay Commissioner is temporarily unable to act because of illness or for another reason; (b) the office of Equal Pay Commissioner becomes vacant when the Legislative Assembly is not sitting; (c) the Equal Pay Commissioner is suspended when the Legislative Assembly is not sitting; or (d) the Equal Pay Commissioner is removed or the office of the Equal Pay Commissioner becomes vacant when the Legislative Assembly is sitting, but no recommendation is made by the Legislative Assembly under subsection (1) before the end of the sitting. (9) An acting Equal Pay Commissioner holds office until (a) the Equal Pay Commissioner returns to office after a temporary absence, (b) the suspension of the Equal Pay Commissioner ends, or (c) a person is appointed under subsection (1). (10) If, for any reason, the Equal Pay Commissioner determines that he or she should not act in respect of any particular matter under this Act, the Commissioner, on the recommendation of the Board of Management of the Legislative Assembly, may appoint an eligible person, as described in subsection (2), as a special Equal Pay Commissioner to act in the place of the Equal Pay Commissioner in respect of that matter (11) A special Equal Pay Commissioner holds office until the conclusion of the matter in respect of which he or she has been appointed. |
These sections say that the Equal Pay Commissioner holds this job for 4 years, and that he or she can be reappointed. They also explain how the Equal Pay Commissioner can resign, be removed, or be suspended, or not act as Equal Pay Commissioner in certain situations, and they describe who can take over the Equal Pay Commissioner’s duties if any of these things happen. |
40.21. The Equal Pay Commissioner and where applicable, an acting Equal Pay Commissioner or a special Equal Pay Commissioner, shall (a) be paid
(b) be reimbursed for reasonable travel and other expenses necessarily incurred in the performance of functions described in subsection 40.22(1). |
This section describes how the Equal Pay Commissioner is paid. |
40.22. (1) The Equal Pay Commissioner shall (a) receive complaints, conduct investigations, assist parties to resolve complaints and prepare investigation reports in accordance with section 40.4; and (b) promote awareness and understanding of the right to equal pay for work of equal value. (2) The Equal Pay Commissioner may engage the services of experts or other persons necessary to assist in carrying out the functions of the Equal Pay Commissioner. |
This section describes the Equal Pay Commissioner’s two main responsibilities: First, the Equal Pay Commissioner must receive, investigate and help to resolve equal pay complaints. If they cannot be resolved informally, the Equal Pay Commissioner must write a report about the investigation (which is described in s. 40.4). Second, the Equal Pay Commissioner must help people become aware of and understand the right to equal pay for work of equal value. The Equal Pay Commissioner is allowed to hire other people to help him or her in doing these things. |
40.23. (1) The Equal Pay Commissioner shall, by July 1 in each year, prepare and submit to the Speaker a report on the activities of the Equal Pay Commissioner and the discharge of his or her duties under this Act during the preceding year. (2) The Speaker shall lay the annual report before the Legislative Assembly as soon as is reasonably practicable. S.N.W.T. 2003,c.16,s.3. |
The Equal Pay Commissioner must write an annual report and present it to the Legislative Assembly. You can find these reports under [Publications]. |
40.3. (1) The Equal Pay Commissioner shall
investigate complaints and, in an investigation, may (b) request any person to produce documents or things that the Equal Pay Commissioner considers necessary; and (c) request any person to compile and produce information relating to job evaluation and pay. (2) If a person refuses or fails to comply with a request of the Equal Pay Commissioner under subsection (1), the Equal Pay Commissioner may apply to the Supreme Court for an order requiring the person to comply with the request. (3) On an application under subsection (2), a judge may make
the order sought and any other order that he or she considers necessary,
if the judge (b) is satisfied that the person in respect of whom the order is sought has refused or failed to comply with that request. |
This section gives the Equal Pay Commissioner the power to obtain the information he or she thinks is necessary to investigate a complaint. |
40.4. (1) An employee may file a written complaint with the Equal Pay Commissioner within two years after the last occurrence of circumstances giving rise to the complaint. (2) On receipt of a complaint, the Equal Pay Commissioner shall provide a copy of the complaint to the parties (3) The Equal Pay Commissioner shall investigate the complaint and may assist the parties to resolve the complaint (4) The Equal Pay Commissioner shall prepare an investigation report, including recommendations with respect to the resolution of the complaint, and shall send it to the parties within six months after receipt of the complaint. |
This section explains the complaint process. An employee must make a complaint in writing, and it must be no later than 2 years after the last pay that the employee is complaining about. The Equal Pay Commissioner must send a copy of the complaint to the employer and to any union involved. The Equal Pay Commissioner must investigate the complaint and may help the parties to try to resolve it informally. No later than 6 months after the date of the complaint, the Equal Pay Commissioner must write an Investigation Report that includes recommendations about how to resolve it. |
40.5. (1) Any party may submit the complaint, together with the Equal Pay Commissioner’s investigation report, to an arbitrator within six weeks after receipt of the report. (2) Subject to subsections (3) and (4), the Arbitration Act applies to a submission to arbitration under subsection (1). (3) The arbitration hearing must be held in the community in which the employee who filed the complaint resides or in a location agreeable to the parties. (4) The costs of an arbitrator under this section shall be paid by the Equal Pay Commissioner. |
This section explains what happens if the Equal Pay Commissioner is not able to help the parties to agree on how to resolve the complaint. Any of the parties can choose to have an arbitrator decide the complaint. The arbitrator will hold a hearing in the employee’s community. The Equal Pay Commissioner will pay for the arbitrator’s costs. |
40.6. (1) An arbitrator who determines
that a contravention of section 40.1 has occurred may, in an award, make
one or more of the following directions against the contravening employer: (b) to refrain in the future from committing the same or a similar contravention; (c) to make available to any employee affected by the arbitrator’s award any rights, opportunities or privileges that the employee was denied by virtue of the contravention; (d) to compensate any employee affected by the arbitrator’s award for all or any pay lost up to three years prior to the date on which the complaint is made under subsection 40.4(1); (e) where an employer has acted wilfully or maliciously, or has repeatedly contravened section 40.1, to pay to any employee affected by the arbitrator’s award an amount not exceeding $10,000 as exemplary or punitive damages; or (f) subject to paragraph (d), to take any other action to place an employee affected by the arbitrator’s award in the position the employee would have been in but for the contravention. (2) An arbitrator may, in an award, direct a party to pay some or all of the costs of any other party if the arbitrator is satisfied that: (a) the complaint is frivolous or vexatious; (b) the investigation or adjudication of the complaint has been frivolously or vexatiously prolonged by the conduct of the party; or (c) there are extraordinary reasons for making such a direction in the particular case. |
This section describes what the arbitrator can do if he or she finds that the employer has contravened the right to equal pay for work of equal value. Among other things, the arbitrator can award back pay for up to 3 years before the date the complaint was made to all employees who received less pay than they should have received. |
40.7. Any party may appeal an award of an arbitrator to the Supreme Court within six weeks after delivery of the award to the appellant. |
This section allows any party to appeal the arbitrator’s decision to the Supreme Court of the Northwest Territories. The appeal must be filed within six weeks of the arbitrator’s decision. |
40.8. Where there is a conflict between sections 40 to 40.7, or any regulations made to implement those sections, and any other provision of this or any other enactment, sections 40 to 40.7 and any such regulations prevail. |
This section says that the right to equal pay for work of equal value is more important than the rights in other parts of the Public Service Act or in other statutes. |
