Ontario should drop its appeal of pay equity for workers if it wants to improve long-term care

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Politicians have a penchant for paralysis by analysis.

So when the Ontario government announced its independent commission into the province’s long-term care system would only begin work in September, the public was justifiably worried that Premier Doug Ford was stalling for time.

COVID-19 is still tearing through care facilities, threatening the lives of the elderly and the disabled. Horror stories are also emerging about the neglect and mistreatment of those vulnerable patients, exposing systemic failings that demand immediate action.

If Mr. Ford is serious about fixing Ontario’s broken long-term care system, he needn’t wait on the commission. There is common-sense action that he can take right now to solve acute staffing shortages in care homes, along with other glaring problems.

It’s obvious that low wages and a scarcity of full-time jobs were catalysts for the COVID-19 crisis. That’s why Mr. Ford should instruct Attorney-General Doug Downey to drop a court appeal of a decision aimed at improving pay for long-term care workers. He should also encourage participating care facilities – including those run by Extendicare, Chartwell, Sienna and Revera – to cancel their appeal as well.

The appeals target a 2019 decision by Ontario Divisional Court that upheld pay equity rights for workers in long-term care homes. The court overturned an earlier ruling by the Pay Equity Hearings Tribunal, and found that long-term care homes must maintain “proxy pay equity" for their largely female staff. This method of calculating pay equity, used in female-dominated workplaces, compares wages of staff with those of male workers at an external or proxy organization.

In this case, nursing homes initially established proxy pay equity for their female workers by using the wages of comparable male municipal workers as a yardstick. Trouble is, a pay gap later reappeared between the two groups. The nursing homes owners balked when unions – including the Service Employees International Union and the Ontario Nurses’ Association (ONA) – sought to close it.

Legal experts say the case has implications for other female-dominated workplaces, such as daycares. The 2019 decision prevents employers from treating pay equity as a one-time achievement and obligates them to ensure women’s wages don’t later fall behind their proxies.

Since Ontario introduced so-called pandemic pay for these front-line workers, how can Mr. Ford continue pursuing this appeal in good conscience? His own rhetoric about fixing the long-term care crisis underscores why this court case isn’t in the public interest.

“It is very contradictory for them [the Ontario government] to talk about how incredibly important and essential these workers are and then deny them pay equity,” Pat Armstrong, a long-term care expert and sociology professor at York University, said in an interview. Ms. Armstrong’s research was cited in the tribunal proceeding in this case and in a court filing for the current appeal.

“To deny pay equity is to deny the essential nature of their work and the value of their work. It’s really quite shocking."

Ontario’s Pay Equity Act was designed to tackle systemic gender discrimination, she added, saying proxy pay equity is a strategy to ensure that employees in female-dominated workplaces have a benchmark for their wages.

“Seriously, how could you doubt, when 90 per cent of the PSWs [personal support workers] are women, that this is not about gender?” Ms. Armstrong said, adding that many long-term care workers in large cities, such as Toronto, are also immigrants or visible minorities.

Those realities, however, appear to have escaped the Ford government. “As this matter is still before the courts, it would be inappropriate to comment further,” Brian Gray, a spokesman for the Ministry of the Attorney-General, said in an e-mailed statement last week.

Bob Bass, a spokesman for the roughly 230 unionized nursing homes and other care facilities also appealing the ruling, confirmed the appeal would be heard in early October, and acknowledged maintaining pay-equity plans had previously been a sticking point between the companies and the unions involved in the case. He didn’t comment directly on the substance of the appeal, but said in an e-mail that his clients “continue to support Pay Equity and compliance with the Pay Equity Act."

If that’s true, those companies would drop their appeal and safeguard proxy pay equity for their staff. As the ONA notes, “the greatest number of COVID-19 outbreaks are taking place in the for-profit nursing homes” participating in the appeal.

In addition to being “undervalued and underpaid,” long-term care workers also face precarious employment which contributes to recruitment and retention problems in the sector, said Katherine Russo, an ONA spokeswoman. These women are often unable to make ends meet unless they work in more than one facility, a trend that’s also contributed to the COVID-19 crisis.

In April, Ms. Armstrong and other experts wrote a report recommending that long-term care workers be given permanent jobs, higher wages and improved benefits, including sick leave. These are all sensible suggestions for Mr. Ford, in addition to dropping this misguided appeal.

“The requirements for training and the demands of the work have really changed since the initial proxy comparisons,” Ms. Armstrong said. “Most people are shocked when they go into a nursing home to see the level of care people require.”

Long-term care patients with dementia, mobility issues, swallowing problems or serious illnesses require highly-skilled care. Mr. Ford can no longer pretend that just anyone can do these jobs.

“It’s way more complicated than people think,” Ms. Armstrong said.

Editor’s note: (June 11, 2020) A Report on Business column on Thursday about the Ontario government’s appeal of a court decision on proxy pay equity for long-term care workers incorrectly stated that Pat Armstrong was a witness before a tribunal proceeding in this case. In fact, her research was cited in that tribunal process and in a court filing for the current appeal.

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