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背景资料:安省劳工法中的“同工同酬”条款 (2)

来源:安省政府   更新:2018-10-24 13:47:21   作者:安省政府

Reviews of pay rates by employers

Employers have an ongoing obligation to ensure that they are in compliance with the equal pay rules.  In addition, if an employee believes they are being paid less than another employee who performs equal work because of a difference in sex or employment status, the employee may request that their employer review their rate of pay. The employee may also file a claim directly with the Ministry of Labour.

If the employee requests a review and the employer determines that they are not providing equal pay for equal work on the basis of sex or employment status, the employer must adjust the employee’s rate of pay to be equal. Employers cannot lower the rate of pay of the higher-paid employee to create equal pay for equal work.

If the employer determines there is no equal pay for equal work violation, the employer must provide a written response to the employee within a reasonable period of time that explains the reasons why the employer does not agree with the employee’s belief. The response can be a physical letter or in an email.

When can an employee request a review by the employer?

An employee can request that their employer review their rate of pay when they believe they are paid less than employees of different sex or employment status for equal work.

As a best practice, when requesting a review of their rate of pay, it would be helpful if employees can explain:

  • the positions or jobs that they are comparing their work to
  • why they think the work is equal
  • why they think their rate of pay is unequal

What should the employer’s written response include?

An employer’s written response must explain to the employee why they do not believe there is a violation of equal pay for equal work under the ESA. For example:

  • there is no difference in the rate of pay
  • there is no difference in sex or employment status between the employees
  • the employees do not perform equal work
  • the difference in rate of pay, if any, is due to one of the following:
    • a seniority system
    • a merit system
    • a system based on production quantity or quality
    • any other factor other than sex or employment status

How does an employer determine if there is a violation of equal pay for equal work?

  • The following questions can help an employer determine if there is a violation of the equal pay for equal work requirements on the basis of sex or employment status.
    • Is there a difference in rate of pay?
      • If the answer is no, there is no violation of equal pay for equal work under the ESA.
      • If the answer is yes, go to the next question.
    • Is there a difference in sex or employment status?
      • If the answer is no, there is no violation of equal pay for equal work under the ESA.
      • If the answer is yes, go to the next question.
    • Are the employees required to:
      • perform substantially the same work?
      • work in the same establishment?
      • use substantially the same skills in performing their jobs?
      • use substantially the same effort in performing their jobs?
      • have substantially the same responsibilities in their jobs?
      • If the answer to any of these questions is no, there is no violation of equal pay for equal work under the ESA.
      • If the answer to all of these questions is yes, go to the next question.
    • Is the difference in rate of pay for substantially the same jobs due to:
      • a seniority system?
      • a merit system?
      • a system that is based on production quality or quantity?
      • any other factor other than a difference in sex or employment status?
      • If the answer to any of these questions is yes, there is no violation of equal pay for equal work under the ESA.
      • If the answer to these questions is no, there may be a violation of the ESA.
        • The employer may need to adjust the employee’s rate of pay upwards to comply with the equal pay for equal work provisions.

If you are a temporary help agency, you have additional equal pay for equal work obligations for assignment employees.  For more information, visit the Temporary Help Agencies chapter.

What if an employee disagrees with their employer’s written response?

If an employee disagrees with their employer’s written response and still believes that their employer is not complying with the equal pay for equal work provisions, or does not receive a response from their employer, the employee may file a claim with the Ministry of Labour. 

Reprisals

Under the ESA, an employer cannot punish an employee in any way for requesting a review of their rate of pay because they believe they are not receiving equal pay for equal work, or for asking other employees about their rates of pay to find out if an employer is providing equal pay for equal work.

Under the ESA, an employer also cannot punish an employee in any way for disclosing their own rate of pay to another employee for the purpose of determining or assisting that employee in determining whether they are receiving equal pay for equal work.

For more information, see the chapter on Reprisals.

Collective agreements

If a collective agreement that came into force before April 1, 2018, contains a provision that permits differences in the rate of pay based on employment status, the provision of the collective agreement prevails, even if it conflicts with the ESA. However, these provisions will cease to prevail either the earlier of the date the collective agreement expires or January 1, 2020.

 

(Source: The Government of Ontario)
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