Second

Session, 50th General Assembly

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

Short title

Interpretation

Crown bound

Conflict

PART

PAY EQUITY

Definitions

Application of Part

Duty of employer

Differences in pay

Pay equity officer

Restrictions

PART

PAY TRANSPARENCY

Pay history information

Requirement to provide pay information

Pay transparency reports

Prohibition

Complaint

PART

III

OFFENCES AND REGULATIONS

Offence

Regulations

PART

CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

RSNL1990 cL-1 Amdt .

RSNL1990 cL-2 Amdt .

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

(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

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 S chools

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) t he Child and Youth Advocate,

(iv) the Chief Electoral Officer,

(

v) the Citizens' Representative,

(vi) t he 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

(

C) employed during the student's vacation period,

(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

(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

(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

(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;

(

c) submit the report to

the minister in the time set by the minister; and

(

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) Sect ion 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

(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

(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

(

c) comply with any other requirements prescribed in the regulations.

(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;

(

c) disclosed the

employee's or applicant's pay to another employee or applicant;

(

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

(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;

(

c) respecting the

preparation of reports referred to in subsection 7(3);

(

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 .

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

(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.

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