Congratulations to Kelly Lesiuk, a nurse from Manitoba who challenged the rules governing employment insurance because they violate the equality protections of the Charter of Rights.
Kellys first child was born in 1995 and in 1998 she was pregnant with her second child. Her doctor recommended that she take a break from work for health reasons. She had worked part-time at the same job from 1993 until 1998.
But when she applied for benefits, she was advised she didnt qualify for regular benefits, maternity benefits or sick benefits. She was told that she had worked only 667 hours in the last 52-week period and was short 33 of the required 700 hours.
Under the old rules, her attachment to the workforce would have been recognized and she would have qualified for benefits. Her appeal to a board of referees was denied. But she then appealed the decision to an umpire.
In making her case, she argued:
- Statistics Canada shows a gender disparity for eligibility 53 per cent of women were potentially eligible for benefits compared to 65 per cent for men in 1999.
- The change from qualifying for benefits based on a minimum number of weeks to a system of minimum hours hurt women more than men.
- Women make up about 70 per cent of the rapidly growing part-time labour force and over 80 per cent of part-time wage earners between the ages of 25 to 44 are women.
- About 50 per cent of women work less than 35 hours per week compared to 20 per cent of men.
- Among women between the ages of 25 and 44, one-third said they would prefer full-time work if it were available.
- Among employed parents, 95 per cent of those with primary responsibility for child care are women.
- Women perform two-thirds of the unpaid work in Canada. The average time spent on unpaid work for mothers with pre-school children is 6.9 hours per day.
- Women tend to be segregated into work with lower wages, less prestige and fewer opportunities.
The umpire noted that men work on average about 39 hours per week compared to women who work on average 30 hours per week in paid employment. The standard for qualification under the EI rules is 35 hours per week and leaves the average women at a disadvantage.
He agreed that as a woman and primary caregiver for her children, Kelly should enjoy all the rights protected by the equality provisions of the Canadian Charter of Rights and Freedoms.
He found that the eligibility requirements demean the essential human dignity of women who predominate in the part-time labour force because they must work for longer periods than full-time workers in order to demonstrate their work force attachment.
The umpire ruled that the requirement to work a 700-hour minimum to be eligible for benefits violates the equality provisions without reasonable justification. While he ruled sections of the Employment Insurance Act unconstitutional, he could not declare them invalid. So he sent the case back to the board of referees to rehear the appeal as if the unconstitutional provisions had never existed.
While the ruling doesnt change the law, others hearing any of 60 similar challenges now pending could follow the umpires lead. The federal government has 30 days to appeal to the Federal Court of Appeal and it could go all the way to the Supreme Court.
CUPE calls on the government to introduce amendments to the Employment Insurance Act immediately to comply with the umpires decision and end the discrimination against women and part-time workers.
For further information, contact the Equality Branch at firstname.lastname@example.org.