Ontario government discriminated against midwives on pay since 2005, human rights tribunal finds

Ontario midwives are describing a human rights tribunal’s decision on their pay equity case against the provincial government as a “landmark win.”

In a decision released on Tuesday, the Human Rights Tribunal of Ontario found that from 2005 to 2013, though not prior, there is “sufficient evidence” to support the midwives’ claim that the health ministry discriminated against them on the basis of sex in setting their compensation.

The Association of Ontario Midwives (AOM) filed a complaint on behalf of about 800 members nearly five years ago.

Among other claims, the group alleged that the government allowed a gender-based pay gap to form by not taking steps to ensure the compensation process was free of discrimination, and not monitoring changes in the work of midwives.

“This is a landmark win for pay equity,” Elizabeth Brandeis, president of the Association of Ontario Midwives, said in a statement posted online. “It will have a tremendous impact on workers across all other gendered sectors of work.”

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In their complaint, midwives sought compensation (immediate and retroactive to 1997), changes to how they negotiate with the government, orders to ensure pay equity issues don’t arise in the future, along with an acknowledgement that a violation occurred under the human rights code.

The Ontario health ministry, which establishes midwife pay, denied that gender played any part in how midwives are compensated, countering that the remuneration reflects a number of factors, including significant differences in education and expertise between doctors and midwives.

In a statement, Ontario Health Minister Christine Elliott said she is carefully reviewing the decision.

“Ontario values the contribution of midwives in providing safe, accessible and around-the-clock care for families across the province. The care they provide benefits expectant families, as well as the overall health-care system,” she said.  “Our government looks forward to continuing to support Ontario’s midwives and the important work that they do.”

In the decision, adjudicator Leslie Reaume delayed issuing a remedy in order to give both parties an opportunity to “reset their relationship,” as well as work out compensation, damages and set a process for compensation negotiations.

Midwives are contractors who are paid per client or “course of care” delivered. They do not have a formal bargaining relationship with the provincial government in the same way others in the health-care sector do.

Midwives awaiting decision in pay equity case at Human Rights Tribunal of Ontario

Gender, and the potential for discrimination, was a concern when the profession became regulated and publicly funded in Ontario starting in 1994.

Almost all midwives in Ontario are women, most of their clients identify as women and they provide care on a women’s health issue — a combination of factors midwives refer to as a gender “trifecta” that makes the profession vulnerable.

In establishing the pay structure in years leading up to the regulation of midwifery, the government relied on an equity analysis, setting pay in relation, but not equal to, that of community health doctors.

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Then, over the next two decades, pay grew by 76 per cent for the comparison group, but midwives’ base salaries increased by 33 per cent, and were frozen for many of those years.

A 2013 report from renowned pay equity consultant Paul Durber found that midwives should be paid 91 per cent as much as community health doctors.

That would mean they would earn just over $197,300 — an increase of $94,800 or 48 per cent more than the highest midwife salary, about $102,600 as of 2013.

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Three years earlier, the Courtyard report, which was co-commissioned by the Liberal government at the time, called for an immediate boost in midwife pay of 20 per cent. Its recommendations were not followed.

Reaume said in the ruling that in the years after 2005, and following the release of that 2010 report, the health ministry withdrew from the principles that safeguarded midwife compensation from gender-based discrimination.

“The MOH’s failure to maintain a perspective consistent with the principles set out in the code in negotiations with the AOM after the Courtyard report created a series of consequences, when considered together, constitute discrimination under the code,” the decision stated.

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The adjudicator said that prior to an agreement made in 2005, there was insufficient evidence to say wage freezes were connected to gender.

The AOM is staging a rally outside the Ontario legislature on Thursday in support of gender pay equity across professions.

In an interview ahead of the decision last month, Brandeis said the significance of the case goes far beyond midwifery.

“I think we’re having a more robust public conversation now about equal pay for equal work, and a real recognition that women are undervalued in terms of the structure of their pay,” she said.

Midwives attend 16 per cent of births in Ontario. They provide primary health care during normal pregnancies — including labour, birth and six weeks postpartum — both for mom and baby, and are on call 24 hours a day.

© 2018 Global News, a division of Corus Entertainment Inc.

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