MSB, Treasury Board accused of discrimination

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An Ontario First Nations political organization has asked the Canadian Human Rights Commission to rule that a landmark pay equity decision that affected federal government employees should have been extended to band employees.

The discrimination complaint was filed by the Association of Iroquois and Allied Indians on Nov. 27 on behalf of several Ontario band-employed nurses. Th association was given special permission by the commission to act as an agent for the nurses.

The complaint alleges the nurses "have reasonable grounds for believing that Health Canada and Treasury Board of Canada, Secretariat have engaged in a discriminatory practice from Feb. 15, 1996, and is ongoing on the grounds of sex (pay equity) in contravention of Section 11 of the Canadian Human Rights Act, by paying band administered nurses less than employees in male-predominant occupations performing work of equal value in the same establishment."

In 1995, the Treasury Board of Canada agreed to compensate female members of a federal employees union - the Professional Institute of the Public Service of Canada, or PIPSC - for being paid less than male employees who performed similar duties. After participating in negotiations as part of the Human Rights Commission's dispute settlement process, Treasury Board raised the wages of the female employees and also agreed to pay back wages.

The Ontario band nurses who filed this latest complaint say they perform the same job as federally-employed, Medical Service Branch nurses and should also benefit from the deal negotiated by Treasury Board and PIPSC.

"That's where my argument is. The money comes from the same pot and, yes, we all work for First Nations even though they're MSB nurses. So why should there be any difference in our pay?" said Heather Nicholas, the nursing manager who started the complaint process.

Nicholas is the nurse-in-charge at the Oneida Health Centre on the Oneida of the Thames First Nation near London, Ont. She says the Medical Services Branch of Health Canada (the federal government agency that looks after First Nations' health concerns) has been using every possible means to cut spending and, in this area, they went too far.

The Oneida health administrator told Windspeaker that government employees in the health field have seen their wages rise in the last few years as cost of living provisions and new collective bargaining agreements took effect. But when it came to funding band councils to hire their own health care workers, she said, there wasn't enough money allocated to pay the same wage to people who do the same job as people who are employed directly by the federal government.

Nicholas said her recent conversations with MSB officials have led her to believe the government will fight the discrimination claim. Last July 29, the Canadian Human Rights Commission ruled that female federal employees in the Public Service Alliance of Canada who performed the same job as male employees should have received equal pay for equal work and the almost 200,000 employees affected are therefore owed about $4.5 billion by Ottawa.

That ruling has earned the wrath of federal decision-makers who are appealing it in Federal Court. That ruling has also reportedly soured the federal Cabinet and high-ranking Treasury Board officials on the idea of independent tribunals such as the human rights tribunal and the promised independent specific claims tribunal.

Human Rights Commission spokesperson Lise Dessaint says the commission would not have accepted the complaint if investigators didn't believe it had merit. That, she said, means the investigators had to decide if band nurses fell under the jurisdiction of the commission, a mandate that covers federal government departments and agencies and companies that are regulated by the federal government.

MSB, Nicholas said, will argue that band nurses don't fit into that description.

"That's what MSB is trying to say: 'We do a contribution agreement withyour First Nation, so it's different.' But it isn't different because the money comes from the same pot. We follow the same job description. We report to the same people. We work within the mechanism of the organization of Medical Services Branch," she said. "The argument I assume MSB is going to make is that we give you the money and we ask you to take care of it. But they're not giving the appropriate amount of money for our salaries. There's like a $10,000 difference in salary between MSB-employed nurses and band nurses and we all work in First Nations and we all do the same job."

An employee of the Association of Iroquois and Allied Indians who spends his time lobbying in defense of taxation immunity for First Nations people was given the task of helping the nurses file this complaint. Chris McCormick is preparing for a fight now that the complaint has been filed and a commission-mandated deadline for a negotiated settlement between the two parties has passed. He also feels it's going to come down to the government claiming that the government isn't the nurses' actual employer.

"That's one of the things we've got to establish right off the top: Who's the employer?" McCormick said.

Nicholas said the government feels it can budget less money for on-reserve workers because they're tax-exempt. Both McCormick and Nicholas maintain that paying a worker less because that worker is tax-exempt is a form of taxation that defies the spirit of the Indian Act's Section 74, which says that Aboriginal people are not subject to taxation.

The claim could cost the federal government millions. Each of the 40 or more nurses who have claimed harm as a result of the allegations in the complaint are seeking approximately $40,000 in compensation and that's just in Ontario.

"It'll probably be long and drawn out but Human Rights says their lawyers have looked at it and we have a pretty good chance of winning," said Nicholas.