Ontario Nurses Association v. Regional Municipality of Haldimand-Norfolk, 1989 CanLII 1454

Ontario Nurses Association v. Regional Municipality of Haldimand-Norfolk

0001-89 Ontario Nurses Association, Applicant v. Regional Municipality of Haldimand-Norfolk, Respondent; Haldimand-Norfolk Regional Board of Commissioners of Police, Other Party

Before: Janis Sarra, Vice-Chair; Geri Sheedy and Sharon Laing, Members

Appearances: Mary Cornish, Felicity Briggs, Noelle Andrews and Anne Marie Delorey for the Applicant; Paul Wearing and Bill McDougall for the Respondent; W. Graydon Sheppard, Stan Floras and Mayor Orval Shortt for the Haldimand-Norfolk Regional Board of Commissioners of Police.

Cite As: Haldimand Norfolk (No.3) (1990) 1 P.E.R. 17

Employer

TheissuebeforetheTribunalwaswhethertheRegionalMunicipalityofHaldimand-Norfolk is the employer ofthe Haldimand-Norfolk Regional Police such that the police are partofthe Municipality'sestablishment and might be used as a male comparator job class for nurses employed by the Municipality. The Act is a statutehavingthespecificpurposeofredressingsystemicwage discrimination. As such, it hasbothhuman rights and labour relations elements. As the Act does not define employer, the test adopted by the Tribunal mustutilize criteria that best accord with the objectives,structureand scheme ofthe Act. No one indicium will be determinative; each must be considered and assessed on the facts of each case. The factors to be examined, while not all encompassing, include: who has overall financial responsibility; who has responsibilityforcompensationpractices;whatisthe natureofthe business,serviceor enterprise;and what is consistent with achieving the purpose of the Act. The Tribunal found that the police were part of the establishment and that, therefore, the Municipality wasthe employerofthe policeforpayequitypurposes.

Employeur

LeTribunaldevaitdécidersilamunicipalitérégionalede Haldimand-Norfolk était l'employeurde la police régionale de Haldimand-Norfolk afin de déterminer si la police fait partie de l'établissement que constit municipalité régionale. L'objet particulier de laLoi estd'éliminerladiscriminationsystémique entrelessexes en ce qui concerne la rétribution du travail. La Loi comprend des dispositions ayant trait à la fois aux droits de la personne et aux relations de travail. Étant donné que la Loi ne définit pas le terme «employeur», le testquedevraitadopterleTribunaldevraitêtrefondésur les critères qui concordent le mieux avec l'objet, la structure et le plan de la Loi. Aucun indice ne sera déterminant; chacun devra étre étudiés et évalué en fonction des faits de chaque cas. Les facteurs qui doivent étre étudiés, meme s'ils ne sont pas globaux, comprennent notamment: qui assume la charge de 1'ensemble de la responsabilité financière; qui est responsable des pratiques en matière de rétribution; quelle est la nature de 1'entreprise ou du service; et quelle est la mesure la plus compatible avec la réalisation de 1'objet de la Loi. Lorsqu'il a appliqué ces critères, le Tribunal a conclu, tout compte fait, que la municipalité regionale était 1'employeur de la police. Par conséquent, la police fait partie de 1'établissement que constitue la municipalité régionale.

DECISION OF J. SARRA, VICE CHAIR, AND G. SHEEDY, MEMBER, JUNE 30, 1989

1This is an application by the Ontario Nurses Association that the Respondent, the Regional Municipality of Haldimand-Norfolk, has acted contrary to the Pay Equity Act, 1987 and in particular Sections 4, 5, 6(1), 7, 12, 13 and 14 of the Act. In its decision of April 25, 1989 the Tribunal directed the parties to lead evidence and argument first on the question of what is the establishment and ruled that the Haldimand-Norfolk Regional Board ofCommissionersofPoliceisa partyforpurposes ofdetermining this question. The Tribunal held a hearing on May 5, 8, 15 and June 12, 13 and 14. The parties requested that the Tribunal decide the question of employer and establishment as expeditiously as possible to assist the parties in this process. In deciding the issue of what is the establishment and who is the employer for payequitypurposes, wemake no comment in general on what stage in the pay equitynegotiationprocess parties should seek adjudicationontheseissues;thatlargerpolicyquestionwasnotbeforeus and we need not address it in this case. In making the findings of fact set forth in this decision, the Tribunal has carefully considered all the oral evidence of, eleven witnesses and the documentary evidence of more than 60 documents submitted as exhibits. We haveconsideredsuchfactorsasthefirmnessandconsistency of the witnesses' evidence, their ability to resist the influence of self-interest, and their demeanor. In reaching our conclusions we have carefully considered all of the submissions of Counsel on both the evidence and the authorities placed before the Tribunal.

2The issue before the Tribunal was whether or not the Haldimand-Norfolk regional police force should be included in the establishment of the Regional Municipality of Haldimand-Norfolk for purposes of pay equity. The definition of establishment is contained in subsection 1(1) of the Pay Equity Act, 1987:

1(1)In this Act...

"establishment" means all of the employeesofan employer employed in a

geographic division or in such geographic divisions as are agreed upon

under section 14 or decided upon under section 15.

Bythedefinitionofestablishment,the Tribunalmustdetermine who isthe employerforpurposesofthe Act.

There was no dispute that theRegionalMunicipalityisthe employer of the nurses. In this case the police can only be part of the establishment if theemployerofthepoliceforpurposesofpayequityisfoundto be the Regional Municipality. The parties agreed that the issue of who is the employer and what is the establishment, is a dispute relating to definition and does not form part of the Applicant's bad faith bargaining allegations.

3. The Tribunal received the evidence of Ms. Noelle Andrews, Assistant Director of Government Relations for the Ontario Nurses Association; Ms. Diane Peart a public health nurse employed by the Haldimand-Norfolk Regional Health Unit; Ms. Rhondi Brown, Employment Relations Officer for ONA responsible for the Regional Municipality of Haldimand-Norfolk; Ms. Karen Boughner, a public health nurse with the Regional Municipality of Haldimand-Norfolk; Mr. Orval Shortt, Mayor of Nanticoke, Member of the Regional Council of Haldimand-Norfolk and Chair of the Haldimand-Norfolk Board of CommissionersofPolice;ChiefLeeRichardStewart, Chiefof Police for Haldimand-Norfolk; Mr.Dennis Leigh, a policeconstable withthe Haldimand-Norfolkregionalpoliceforce;Ms. Patricia Hosack,Manager of FinancefortheHaldimand-NorfolkBoardofCommissionersofPolice;Mr.RobertJohnstone,Treasurer and Commissioner of Finance for the Regional Municipality of Haldimand-Norfolk; Mr. Lome Perron, Director of Labour Relations for the Metropolitan Toronto Police Force; and Mr. Jeffrey Cann, Director of Personnel Services for the Regional Municipality of Haldimand-Norfolk.

THE FACTS:

1 TheOntarioNursesAssociation("ONA")isthecollectivebargainingagentforthefull time Registered and Public Health Nurses employed in the Regional Health Unit, and for part time Registered Nurses at Grandview Lodge. The Regional Municipality of Haldimand-Norfolk ("Regional Municipality") and ONA are the signators to the two collective agreements.

2 The Regional Municipality was created by the Regional Municipality of Haldimand-Norfolk Act, given assent in October 1973 and coming into force April 1, 1974. The Haldimand-Norfolk Board of CommissionersofPolice("Board of Commissioners"or "Board") wascreated bylegislationamendingthat Act, receiving assent in December 1973 and coming into force January 15, 1974 in anticipation of the regionalization of the government. Prior to that, each area municipality delivered police services directly. The purpose of amalgamating the area municipalities including the police force, was to ensure more efficient service over a larger area of the region and was part of a province wide move to a system of regional government.

3Within the Regional Municipality of Haldimand-Norfolk, there is also the lower tier of municipal government whichincludes six area municipalities; the City of Nanticoke, the Town of Simcoe, the Town ofHaldimand,the Townof Dunville, the Township of Delhi and the Town of Norfolk each with their own council and staff. The Regional Municipality is governed by the Regional Council with 19 members elected toCouncilandaChairelectedfromamongthosemembers. All the area municipalities have three members ontheRegionalCouncilexceptNanticoke whichhasfour. The area municipalities are responsible for local planningand development,severancesand minorvariances,localstormdrains,localroads,parks, parking, firefighting, recreationandlocalgarbagecollection. The area municipalities each collect taxes for their own municipality, for theSchoolBoardandfortheRegionalMunicipalityofHaldimand-Norfolk. The Regional Municipalityisresponsible fordeliveryofhealthand socialservices,regionalplanning, regionalengineering, policing, waste disposal and regional finances.

4At the outset of the Hearing the parties tabled an agreed statement of facts which is set out in

full here: #1 The paycheques of all employees of the Regional Municipality are signed by the Regional Chairman and come from the Regional Municipality's bank account, the same is true for the employees of the Board of Commissioners of Police.

#2 That the reference on page 24 of Exhibit 15-19 which are the financial statements, that payments to OMERS, (the Ontario Municipal Employees Retirement System) on behalf of the Municipality's employees includes the police commissionemployees and the ONA nurses.

#3 An agreement as to the evidence disclosed in exhibits #5 to #14 and Exhibit #15 tabs 2, 3, 5, 6, 7, 8, 9, 12, 14, 19, 20, 24, 27, 30 (excluding the attachment to the letter), 31, 32, 33, 39 and 40; that the documents pertaining to the negotiations might be filed without formal proof. The Respondents dispute the relevance.

#4 With respect to the gender incumbency of the police commission employees, the male job classes are the constables, sargeant, staff sargeant, court administrator, assistant court administrator, inspector, superintendent, administrator, identification technician and transfer guard. The female job classes are private secretary, clerk typist, dispatcher, secretary, clerk general and manager of financial services.

#5 The municipal councillors on the police commission are Mayor Orval Shortt, Mayor of Nanticoke and Robert Causyn.

#6 There is no transfer of funds to the police commission by the Regional Municipality, all the expenditures of the police commission are paid for by cheques issued by the Regional Municipality.

#7 The police commission reports are attached to the Regional Council's monthly agendas.

#8 The Regional Municipality has requested the Board of Commissioners of Police to reduce its budget estimates where they believe such estimates are excessive.

#9 The evidence as disclosed in the documents to be produced by the Respondents in response to the Applicant's May 4, letter.

1 The Haldimand-Norfolk Regional Board of Commissioners of Police has five members, two appointees ofthe RegionalCouncil, MayorShorttand Mr. Causyn; and three appointees of the province, Mr. Wase, Mr. Mawhiney and Judge W.W. Leach. The appointees from the Regional Council are appointed or re-appointed after each regional municipal election and the terms coincide with the election periods for the Regional Council. The Board of Commissioners meets once a month and has two committees, the Property Committee and the Finance and Administration Committee. There has always beenaRegionalCouncilmemberoneachofthecommittees. A sub-committee of Finance is the negotiating committee which is responsible for collective bargaining.

2 Section 14 of the Police Act sets out the mandatory budget and appeal process, specifically Subsections (2) and (3) require:

14(2) Every Board shall, on or before the 1st day of March in each year, prepare and submit to the council or each council responsible for maintaining the force, for its consideration and approval its estimates of all moneys required for the year to pay the remuneration of the members of the police force and to provide and pay for the accommodation, arms, equipment and other things for the use and maintenance of the force.

14(3) Where the council does not agree with the board on the estimates or on the adequacy of the number of members of the police force or the accommodation, arms, equipment or other things for the use and maintenance of the force, the Commission shall determine the question after a hearing.

1 The police Board prepares its budget each year through a process that involves the senior force staff and police chief,thenanalysisandapprovalatthe Board of Commissioners. The Regional Municipality is consulted at an early stage only for information on fringe benefits such as OHIP and WCB. An annual actuarial study is done by the Regional Municipality on the sick leave funding and that report includes the police force staff. About 85% of the total budget is directed towards compensation each year. In 1987 the total police budget was $5,615,113. The budget estimate, once it is approved by the Board of CommissionersofPoliceisthenforwardedto the RegionalMunicipalitywheretheMunicipality'sstaffunder Mr. Johnstone the Treasurer, amalgamates that budget estimate with each of the Regional Municipality's departments to form the overall Regional Government budget estimates. The consolidated corporate budget is thenforwardedtoRegionalCouncilforapproval. The police budget estimate is contained under the budget item "protection of persons and property" along with the conservationauthorityand contains a line by line functional analysis of police operation and police administration divisions, with all salaries, benefits,capitalexpenditures and operating costs. Thepoliceportionisaboutfive/sixthsofthe"protection ofpersons and property"budgetitem, and thatitemin1988was17.3% ofthe entirebudgetoftheRegional Municipality.

2 Although there was dispute in the evidence as to how active the budgetary approval process is or isnotatthe RegionalCouncilstage,the partieshave agreedthatthe policebudgetgoesto RegionalCouncil for approval in the form of a consolidated budget from the Regional Municipality's Finance and AdministrationCommittee. The parties also agree that the Regional Council can either approve the budget or appeal the police portion to the Ontario Police Commission but not single handedly change or deny it. A budget has never been appealed to the Ontario Police Commission. Once the consolidated budget is approved, the role of ensuring there is no overspending rests with each of the department heads of the Regional Municipality and in the case of the police, with the Board of Commissioners.

3 Once the consolidated budget is approved, the Treasurer determines the mill rate and the taxes are levied for the Regional Municipality. After the mill rate is set, the options offunding are limited, hence the need to be as precise as possible in the budget estimates. The Regional Municipality receives money to dischargeitsbudget obligations from a number of sources. Approximately 40% is derived fromthetaxes levied on the six area municipalities, who in turn collect the taxes on behalf of the Regional Municipality. Another 40% comes from transfer payments fromthe provinceinthe form of conditional or unconditional grants. Included in that is partial funding for the police from unconditional grants of a $50 per household levyfortheHaldimand-Norfolkregion. The remaining amount comes from charges to the Municipality such as fee charges for the Homes for the Aged and building permits, as well as from long term debt financing.

4 The Regional Municipality is also engaged in a financial planning process which is a five year capital and budgetforecast,whichincludesthepoliceBoardunderthe "protectionto persons and property"budget item. This is necessary in order to plan the financing of the Municipality's debt through debentures which must be approved by the Ontario Municipal Board. The annual official audit is done on the consolidated financialstatement ofthe Regional Municipality of Haldimand-Norfolk including an analysis of all reserves and all expenditures of the police force in a consolidated format.

5The Regional Municipality undertakes the financing and administration of the police budget, however, all operating cheques must be sanctioned by the police Board before they are processed through the Regional Municipality's accounting department. The bills must be approved by the Board's Manager of Finance before they are sent to the Regional Municipality which issues cheques for payment. The parties agreed that there is no transfer offundsto the police Board and that all of its expenditures are paid for by theRegionalMunicipality. Each month minutes of the police Board meetings are attached totheRegional Council agenda as information and a monthly activity report goes to the Council including information on reclassifications, grievances, arbitrations, promotions, complaints, training course results, Police Act hearings,investigations and otherpoliceactivities.Anymajoradditionalfundsrequiredbythe policeBoard must be submitted to the Regional Council for approval.

6Most of the property used by the police force is owned by the Regional Municipality. Although the Boarddoesnot own any property, itdoesleasepropertyinitsownname. The Board does own its "rolling stock",thetermusedforitspolicecruisers. The Engineering Department of the Regional Municipality looks after repairs of the police vehicles at the Region's garage, with a charge back to the police budget for parts and labour. The regional police force is responsible for policing the majority of the population in the RegionalMunicipalityincludingthe six area municipalities,smallercentressuchas Haggersville,Caledonia, Dunnville, Waterford and Port Dover; however, the rural areas and hamlets are policed by the Ontario Provincial Police.

7The Chief of Police has responsibility for the day to day operation of the police force. He is under directionoftheBoardforadministrativedecisionssuchastenderingforpolicecruisers. He has independent responsibilityunderhis oath of office and asper the Police Act for the law enforcement aspects. To quote fromThe LawofCanadianMunicipalCorporations atpage 1155 "The dutiesand powers ofapoliceforce are original and not delegated; they are derived from the law and not from the board or municipality from whomtheyreceivetheirappointment". The Board's Manager of Finance is under direction of the Chief and the Board of Commissioners and is responsible for supervising the civilian staff, and for processing claims such as overtime, court time, purchase orders and accounts payable, ensuring the accuracy of the claims and accounts before forwarding them to the Regional Municipality for payment. The police Board is in regular communication with the Regional Municipality on issues such as financial administration, payroll services and the issuing of cheque requisitions. The police Board provides a courier service for all of the RegionalMunicipality'sdepartments. The Treasurer has also undertaken general cost studies at the request of the Chief of Police such asthe 1988 studyofthe comparative cost ofpolicingin the region with policing in other jurisdictions.

8Although day to day operations of the police force are under the direction of the Chief of Police and the staff, majorfinancialdecisionsare required to be approved by the Regional Council. Three examples werethesubjectofconsiderableevidenceatthehearing. First, was the proposed expansion of the regional police headquarters in Simcoe which the Board of Commissioners had proposed. The headquarters is owned by the Regional Municipality and thus would be renovated by its Engineering Department. The Board submitted a proposal to Regional Council in 1986 for a $350,000 expenditure to undertake this expansion. After some discussions with the Municipality's Finance and Administration Committee about the budget implications, the Board withdrew the proposal and determined that it would not expand but "make do" in 1987 with internal renovations and increased parking.

9A second example illustrative of a major financial decision, was with respect to police capital replacement expenditures for the Board's rolling stock. A capital reserve was put in place because of the widefluctuationinbudgetseach year due to police cruisers purchased asnecessary, thatnecessityvarying drasticallyfromoneyeartothenext,withonetoeightcruisersbeing,purchasedeach year. Thisfluctuation had meant 1% or more swing in the mill rate and had caused the Regional Councillors concern. The solution was to put approximately $150,000 into a capital reserve from which funds could be withdrawn as cruisers were required; this had the effect of stabilizing the budget after 1986. Although the evidence varied on whose idea the capital reserve was, itisclearthatthe conceptwasdiscussedbetweenthe Police Chief and the Regional Municipality's Treasurer Robert Johnstone several times, with budget estimates developed by Johnstone. The proposal went as a report from the Treasury Department through the budgetary process to approval by Regional Council. When the Commission requires funds for new cruisers, it makesa requestto the RegionalCounciland onceapproved, the Treasurer transfers the money out of the reserve and into the police Board's budget.

10Thethirdexampleistheevidencerelatingtothesickleavebenefitsofemployees. There is provision in the Regional Municipality"s budget for a reserve for sick leave including the police employees, and a current issue is the funded versus unfunded liability. A large portion of that reserve is unfunded and represents a fairly substantial liability for the Regional Municipality. Two years ago, the police Board "grandfathered" the sick time for existing employees in this system and negotiated a non-accumulating enrichedshort term sick benefit. The issueoftheunfundedsickleavewasnotresolvedinthe1989budget and continues to be under discussion.

11The Police Act gives the responsibility for the level of police servicing to the ChiefofPoliceand the Board of Commissioners of Police, although the Regional Municipality has the right to complain to the Ontario Police Commission under section 58 of the Police Act. The Ontario Police Commission acts in both a supervisory and advisory capacity and can conduct an investigation on its own initiative or at the request of the Municipality into the system of policing, administration of the force and the police needs of the Municipality. TheRegionalMunicipalityisalsoresponsible for payment of any torts committed by the Chief of Police or his force as required by section 24 of the Police Act.

21. There are four collective agreements for the police force: one covering police constables, sargeant and staff sargeant and one covering civilian personnel: secretary, dispatcher, clerk-typist, court administrator,assistantcourtadministrator,identificationtechnicianandtransferguard. These two collective

agreements have the Haldimand-Norfolk RegionalBoard ofCommissionersofPoliceand the Haldimand-Norfolk Police Association as signators. The third collective agreement covers the inspector and the superintendent and the fourthcontract covers the seniorcivilianadministrative staff:administrator,manager offinance,clerk-generalandprivatesecretary. The Haldimand-Norfolk Regional Board of Commissioners of Police and the Haldimond-Norfolk Police Senior Officers Association are the signators to these two collective agreements.

12The Board of Commissioners negotiates with the Police Association and the Senior Officers Association through its negotiating committee without the assistance of the Personnel Department of the Regional Municipality. The Board keeps the Regional Council informed of the progress of negotiations through its minutes sent to the Regional Council meeting each month. Although the police force is in the same pension plan as staff members of the Regional Municipality, the collective agreement differs in a numberofaspectsincluding longand shorttermsickleave,dentaland lifeinsurance,and specialdutyrates. Training of the police force is done primarily by the Ontario Police College, administered through the Ontario SolicitorGeneralwith curriculum set bythe CanadianAssociationofChiefs ofPolice,the Solicitor General and the Ontario Police Association. There is no transfer of seniority or sick benefits from any of the police bargaining units to any of the bargaining units in the Regional Municipality. In addition to employees covered bythe four collective agreements,thereare20 casualemployeeswho are hired by the police force and are not covered by a collective agreement. The salaries for the non-Council appointees to the Board of Commissioners are set by Regional Council through recommendation of its Finance and Administration Committee.

13The Board of Commissioners is responsible for all hiring of police officers. The process entails interviewsofcandidatesbasedupona shortlistpreparedbythe seniorofficersand forwardedto the Board without recommendation. The civilian staff are hired by the Police Chief and the senior administrative staff, and the Board of Commissioners are not involved unless there is an upgrading or a promotion. The Personnel Department of the Regional Municipality has no involvement in either of these processes. The Chief of Police is not considered to be part of the senior staff of the Regional Municipality. The Board of Commissioners passes by-laws for regulation of the police force for conduct, discipline and dismissal in compliance with the requirements and disciplinary code of the Police Act. It involves a series of disciplinary stages including a hearing before the Police Chief or designated senior officer, with right of appeal to the Board of Commissioners, then to the Ontario Police Commission and finally to the court system. The Regional Municipality has no involvement in this. Personnel records for the police force are kept with the police Board. The payroll administration, including issuing pay cheques to the police force, is done by the Finance department of the Regional Municipality.

14A codification of labour relations is provided for in section 28 through to section 39 of thePolice Act; it provides for a process of negotiations and binding arbitration with the Ontario Police Arbitration Commission arbitrating on interest or rights disputes and providing mediation and conciliation services. Section32(3) providesforthe RegionalMunicipalityto be a party to this arbitration, but therehasbeenno such participation to date.

15Subsection 35(1) of the Police Act binds the Regional Council to the collective agreement and to

the decision of any arbitrator with respect to the four collective agreements. It reads: 35(1) Every agreement. made under section 29 or 30 and every decision or award of an arbitratorisbindinguponthe councilofthe municipality, the board, wherethere is aboard, and the members of the police force, other than the chief ofpoliceand anydeputychiefof police.

Similarly, the Police Act relates the effective dates of each collective agreement to the fiscal periods and responsibilities of the Regional Municipality. Sections 36 and 37 state:

36(1) An agreement, decision or award takes effect upon the first day of the fiscal period in respect of which the council of the municipality may include provision in its estimates for any expenditures incurred in the agreement, decision or award, whether such day is before or after the date of the agreement, decision or award, unless another day is named in the agreement, decision or award in lieu thereof.

(2) Where,pursuant to subsection(1), another day is named in an agreement, decisionoraward as the day upon which the agreement, decision or award is to take effect and such day is prior to the first day of the fiscal period in respect of whichthe councilofthe municipality may include provisioninits estimates for any expenditures involved in the agreement, decision or award,any of the provisions involving expenses shall, notwithstanding the naming of such day, take effect from the first day of such fiscal period.

37 Where a request in writing is made under subsection29(1) duringayearendingwiththe 31st day of December and no agreement, decision or award has resulted therefrom at the time when the councilispassingitsestimatesinthe yearnext following, the councilshallmakesuchprovision as in its opinion is adequate for the payment of any expenditure resulting from such agreement, decision or award.

26. In terms of perception of employees, Mr. Leigh a police constable with the Haldimand-Norfolk regionalpoliceforceclearlyperceivedhisemployerto be the Haldimand-Norfolk Board ofCommissioners of Police based upon his experience in collective bargaining with the Board. His evidence was that the Police Act makesitunlawfultotakeordersfromanyoneotherthanaseniorpoliceofficer. In addition both Ms. Hosack the ManagerofFinance for the Board and the Chief of Police gave evidence to indicate that they perceive their employer to be the Board. Ms. Peart, a public health nurse with the Municipality gave evidence that she perceived the police to be employees of the Regional Municipality. She based that perception on her knowledge that the police are called the Haldimand-Norfolk Regional Police, that they servicethe boundariesofthe regionand thattheir paychequesare signedbyKeithRichardsonthe Regional Chair. Ms. Boughner, another public health nurse, believed the police to be part of the Regional Municipality's workforce because of the work she does with the police force in community information, education in the schools about drugs, and calling in the police on home visits. Her evidence was that the police service the same area as the public health nurses.

ARGUMENT

27. The Tribunalhadthebenefitofextensiveandthoughtful submissions from Counsel. In addition, the Tribunalreceivedand gave considerationto the followingauthoritiessubmittedbyCounsel:the PayEquity Act, 1987, S.O. 1987, c.34; the Police Act, R.S.O. 1980, c. 381; The Regional Municipality of Haldimand-Norfolk Act, S.O. 1973, c. 96; The Regional Municipality of Haldimand-Norfolk Amendment Act, S.O. 1973, c. 155; RegionalMunicipalityof Haldimand-Norfolk Act, R.S.O. 1980, c.435; Labour Relations Act, R.S.O. 1980, c.228; Interpretation Act, R.S.O. 1980, c.219; Report of the Royal Commission on Equality in Employment, vol. 1 (Ottawa: Canadian Government Publishing Centre, 1984) (Commissioner: Judge Rosalie Silberman Abella); Cormier v. Alberta Human Rights Commission et al, 85 C.L.L.C. 17.003; R. v. Pereira (1988), 1988 CanLII 3477 (AB QB), 20 C.C.E.L. 187; Heerspink and Director, Human Rights Code v. Insurance Corporation of British Columbia, 82 C.L.L.C. 17,014; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears (1986), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102; Canadian National RailwayCompany v.CanadianHumanRightsCommission, 87 C.L.L.C. 17,022; Robichaud and Canadian Human Rights Commission v. Her Majesty The Queen as represented by the Treasury Board (1987), 1987 CanLII 73 (SCC), 8 C.H.R.R. D/4326; Constitution Act, 1982, as enacted by Canada Act 1982 (U.K.) 1982, C.11; Telegram Publishing Company Ltd and William Amm and Others (1973), 1973 CanLII 2133 (ON LA), 3 L.A.C. (2d) 175; Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538; Kennedy Lodge Inc., [1984] OLRBRep.July931; Law Society of British Columbia and Attorney General of British Columbia v. Andrews and Kinersley (1989), 1989 CanLII 2 (SCC), 36 C.R.R. 193; York Condominium Corporation, [1977] OLRB Rep. Oct. 645; Province of Ontario Board of Internal Economy, [1980] OLRB Rep. Jan. 88; Waterloo County Roman Catholic Separate School Board, [1977] OLRB Rep. Dec. 856; National Union of Public Employees and Municipality of Metropolitan Toronto, 61 C.L.L.C. 16,214; Ralston Purina Canada Inc., [1979] OLRB Rep. June 552; I. Rogers, The Law of Canadian Municipal Corporations, (2nded.1971); Nicholsonv.Haldimand-NorfolkRegionalBoardof Commissioners of Police,1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311; Reference Under The Constitutional Questions Act (1957), 1957 CanLII 110 (ON CA), O.R. 28 (C.A.); Re St. Catherines Police Association and the Board of Police Commissioners for the City of St. Catherines (1971), 1970 CanLII 351 (ON HCJ), 1 O.R. 430; Myers and City of Guelph v. Hoffman, 1955 CanLII 161 (ON HCJ), [1956] 1 D.L.R. (2d) 272.

COUNSEL FOR THE APPLICANT

28. Counsel for the Applicant, Ms. Cornish first identified the scope of the issue, the purpose of the statute and some of the historical background to the Pay Equity Act, 1987. Counsel cited pages 7 and 12 of the Ontario Government's Green Paper which preceded the passage of the Act and which characterized the discrimination the Act was designed to redress:

The Government ofOntario'scommitment to payequityrequiresmeasures which address the undervaluation of women's jobs due to occupational segregation and wage discrimination .......

The Government's commitment to the principle of pay equity does not depend upon the size of the wage gap or upon the portion or percentage of the wage gap which could be closed by a pay equity policy. Rather, it rests on the conclusion that some portion of the wage gap is due to discrimination which has not been eliminated by existing equal payfor equal work and equal opportunity initiatives. This portion of the wage gap can be narrowed or eliminated by a pay equity policy.

1 Ms. Cornish submitted that the Pay Equity Act, 1987 is an anti-discrimination piece of legislation and that it ranks as a piece of legislation of "almost-constitutional or fundamental nature". As support for her position she quoted from recent Supreme Court of Canada decisions that find anti-discrimination law must be interpreted as to advance the broad policy considerations underlying it. She submitted that although some women are excluded from the Act, so too are certaingroupsnotcovered bythe protection of human rights legislation and yet the law is no less of "almost-constitutional" nature. Counsel suggested that it is unusual for a statute toreferto affirmative actionand yetherethe Legislature saw fit to make such provisions. She urged the Tribunal to adopt a systemic approach to the Act, that a broad definition of employerwas consistent with that approach and key to the identification ofdiscrimination. She submitted that the issue of establishment is one crucial to the operation of the Pay Equity Act, 1987, affecting the abilityofwomen throughout the province to receive wage adjustments. Counselsubmittedthatitisforthe Tribunaltointerpretthestatutewherenodefinitionofemployer exists. She thenreviewedtheexistingtests in employment and common law and what elements advance the purposes of the Act. Ms. Cornish suggested that the persons that have historically been responsible for setting the discriminatory wage practices are the appropriate persons to redress the discrimination. She urged the Tribunal to adopt the test that whoever controls the purse strings is the employer for the purposes of pay equity.

2 Counsel then reviewed the history and role of the police and nurses in the Regional Municipality. She submittedthatpolicingand nursingaremunicipalfunctions and thatsection14 (2) ofthe Police Act requires the Municipality to take financial responsibility for policing, both in raising the funds and in deciding the expenditures. She submitted that the Regional Municipality is the budgetaryauthority, thatitprovidesthe assets foraccommodation, arms and equipment,thatitsupplies accounting, payroll and financial services. She submitted the Regional Councillors who sit on the police Board ensure that the Board has accountability to the Regional Council at an early stage of the budget setting process. She submitted that the system of municipal government both by statute and by practice in the facts of this case points to the Regional Municipality as the employer of the police force.

31. With respect to whether or not the Applicant's definition of establishment would effect existing labour relations, Ms. Cornish submitted that both the police and the nurses are bound bymanyActsthat impose restrictions on collective bargaining, such as human rights legislation. She suggested that the Pay Equity Act, 1987 is no exception; there has been no exemption in the Act for the police and there is no conflict withthe Police Act to find the larger establishment. Finally,Counselsubmittedthatthecorrespondencein evidence makes clear that the Regional Municipality and Board of Commissioners were deciding that the larger establishment could forma reasonable group forpayequity purposes, and that their change of mind was as a result of them assessing the impact of the comparators. Counsel asked us to draw the inference that the Regional Municipality ultimately decided the separation of the entities would limit the scope of comparisons available.

COUNSEL FOR THE BOARD OF COMMISSIONERS

3 Counsel for the Board, Mr. Sheppard, submitted that the Board of Commissioners is an employer in its own right. He suggested that the Board was established by the provincial government before the Regional Municipalitycameintoexistence. Counsel submitted that the majority of members of the Board are appointed by the provincial government. He submitted that section 8(5) of the Police Act allows the Board to contract and to sue and be sued in its own name; that the Board has the power to pass its own by-laws and that the Police Act gives it responsibility for the quality of policing in the Region. Counsel rejected the notion that the Regional Municipality controls the budget, and he submitted that the Council cannot deny the budget, that its right to object to the Ontario Police Commission illustrates it does not control the "purse strings".

33. Mr. Sheppard rejected the Applicant's notion that the Pay Equity Act, 1987 is of "almost constitutional" nature. He submitted that an act of "almost constitutional" nature would cover all women and under this Act, women employed in workplaces of fewer than ten employees are not covered. He submitted that although the law is important, it is "labour legislation, no more, no less". Mr. Sheppard quotedfromthe Legislative Hansard of November 24, 1986whenAttorneyGeneralIanScott introduced the Pay Equity Legislation as illustrative of the non-all encompassing nature of the law:

We realize some Ontario workers may find themselves without a comparison group because they are in a workplace that is totally female. Let us take childcare workers as an example. Childcare workers in municipalities will have male comparison groups, but those in small non-profit childcare centres may be working in anall-female establishment. The bill, which was drafted as gender-based anti-discrimination legislation, will not assist the latter group, whose work has been undervalued and underpaid for too long.

4 He noted that section 28 of the Police Act prohibits trade union membership and calls for a system of collective bargaining very differentfromthestandardlabourrelationscontext. Mr. Sheppard submitted that inthe absenceofa definitionofemployerinthe legislation, the Government neverintendedthe Tribunal to decide the definition. He suggested that the well established definition in Ontario Labour Relations Board case law ought to be used by the Tribunal. He cited the tests used by the Labour Relations Board in York Condominium (supra)and cases following, and submittedthatonthe basis ofwho exercisesdirectionand control over employees, who hires and fires, who has the power to discipline, the perceptions of the employeesandwhethertherewasanintentiontocreateanemployer/employeerelationship;thatthe Board of Commissioners is clearly the employer. He submitted that the burden of remuneration test is almost irrelevant in this case, and that the Regional Municipality is merely a conduit for raising tax monies for the Board of Commissioners.

35. Counsel submitted that the Tribunal has no authority to restructure the collective bargaining units. He suggested that a remedial statute should be interpreted to do minimaldamage and thatthe larger definition ofestablishmentwouldcomplicatepayequitynegotiations. Counsel cited authorities on the status of police as officers of the law and submitted that the idea of police as comparators for nurses is a "far-fetched notion" considering the police's job and the dissimilarities.

COUNSEL FOR THE REGIONAL MUNICIPALITY

5 Counsel for the Respondent, Mr. Wearing, submitted that the Pay Equity Act, 1987 is not human rights legislation nor is it "near constitutional" as the Applicant would suggest. He suggested it is important legislation introduced to deal with discrimination with respect to compensation, but that it is not a statute with application to the entire populace as it only gives remedy to women in workplaces of ten or more employees. Counsel characterized the law as an important labour relations statute and submitted that the established benchmarks of employer in Ontario Labour Relations Board cases such as Sutton Place (supra) and Kennedy Lodge (supra) ought to be adopted. He suggested that to do otherwise would bring instability to the collective bargaining relationship.

6 Counsel submittedthatbasedupontheApplicant'spleadings,itscaseforemployeris not made out; that the Applicant has not met the tests for employer which are well-established in employment and common law. Counsel traced the evidence as it relates to the Labour Board tests. He submitted that the criteria of who hires, fires and disciplines are part of the wage setting practices that are clearly within the control of the Board of Commissioners. Counsel submitted that although policing is a municipal function, so too is the School Board whichisnotpartofthe Regional Municipality. He urged the Tribunal to make a finding that the communications of the Board of Commissioners with the Regional Municipality are indicators of good management, but the real superintending power rests with the Ontario Police Commission, not the Regional Municipality.

7 Counsel reviewed the statute and submitted that the legislation has not said that every workplace is liable or done something "prohibitive with respect to wages"; rather the Act is a scheme of inquiry and section 6 provides a framework and procedure to determine whether or not there have been prohibitive wage practices. He suggested that the Applicant's request to seek a broader definition of establishment was premature because the other possibilities for comparators had not yet been examined through the process. He submitted that nurses and police are specific and specialized work and that they are in no way similar in functions they provide or the regulatory agencies which govern them.

DECISION

1 In reaching a decision in this case, the Tribunal has considered a number of issues raised by the parties. First, what is the nature of the Pay Equity Act, 1987 and what is the issue before this panel? Second, can the Tribunal define employer for pay equity purposes and what usefully can be drawn from existing employment and labour relations jurisprudence and the common law as tests for employer and establishment. Third, what are the tests that the Tribunal should. apply in a pay equity context? Finally, how do the Tribunal's tests apply to the fact situation before us?

2 The Tribunal is able to characterize the Pay Equity Act, 1987 in many different ways as Counsel have suggested. However, categorizing the "nature" of the Act does not assist our determination of this case; rather we look to the Act itself and its purpose and objectives. The Pay Equity Act, 1987 has elements of anti-discrimination legislation both in its historical development and in its content. The law is a recognition of the systemic nature of wage discrimination and provides a strategy to deal with the

discrimination. To quote Judge Rosalie Abella in the 1984Report of the Royal Commission on Equality in Employment, at page 9:

Systemic discrimination requires systemic remedies. Rather than approaching discrimination from the perspective of the single perpetrator and the single victim, the systemic approach acknowledges that by and large the systems and practices we customarily and oftenunwittinglyadopt mayhave anunjustifiablynegative effectoncertain groups in society. The effect of the system on the individual or group, rather than its attitudinal sources, governs whether or not a remedy is justified.

Remedial measures of a systemic and systematic kind are the object o employment equity and affirmative action. They are meant to improve the situation for individuals who, by virtue of belonging to and being identified with a particular group, find themselves unfairly and adversely affected by certain systems or practices.

and at page 232:

Equal pay is an integral element in the implementation of employment equity. It must be included in any undertaking by employers to make the practices in the workplace more equitable.

and at page 254:

Employment equity "requires a special blend of what is necessary, what is fair and what is workable".

41. The preamble of the Pay Equity Act, 1987 reflectsthis historicalwage inequityand the needtotake pro-active steps to address it. The preamble states that "whereas it is desirable that affirmative action be taken to redress gender discrimination in the compensation of employees employed in female job classes inOntario;"this Act has been enacted. Thepreamble,alongwiththepurposeofthe Act outlines the nature ofthediscriminationthe legislation is intendedtoaddressthroughtheaffirmativeactionsofemployers. The purpose of the Pay Equity Act, 1987 is found in section 4:

4(1) The purpose of this Act is to redresssystemic genderdiscriminationincompensation for work performed by employees in female job classes.

(2) Systemic gender discrimination in compensation shall be identified by undertaking comparisons between each female job class in an establishment and the male job classes in the establishment in terms of compensation and in terms of the value of the work performed.

42. The law also has a labour relations component in that the framework for achieving pay equity in unionized workplaces is a collective bargaining one, with both rights and obligations on employers and

bargaining agents. The Act imposes the obligation to negotiate pay equity plans and provides a detailed mechanism by which pay equity will be accomplished. The law gives clear recognition to the history and structure of collective bargaining in this province. It is however, unlike other collective bargaining statutes in that it has an interest in the content and process of pay equity negotiations in order to ensure that affirmative action is taken to redress wage discrimination. We do not accept the submissions of Counsel that the statute is merely a collective bargaining statute; not only because of its anti-discriminatory nature, but because there are approximately 79% of women in the Ontario workforce who are not afforded the protections ofacollectiveagreement. The Act covers these non-unionized women in workplaces of more thantenemployeesthroughaverydifferentimplementationandcomplaintmechanism. It is a statute having the specific purpose of redressing wage discrimination with elements of both human rights and labour relations law.

2 The statutecontainsnodefinitionofemployer. The Act does however define establishment in terms ofemployerandinthatcontexttheTribunalmustassess the meaning of employer. What aretheprinciples underlyingtheapproach the Tribunal should take in defining employer? Inordertolookattheinterpretive principleswhichapplytoour considerationofthis issue,werelyinpart onrecent judgmentsofthe Supreme Court of Canada. The Supreme Court wrote in Canadian National Railway Company v. Canadian Human Rights Commission (supra) at p. 16,263:

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognitionandeffect. We should not search for waysandmeanstominimizethoserights and to enfeeble their proper impact.

The Court went on to cite the federal Interpretation Act and the Tribunalfindsthatthe same sectionin the Ontario Interpretation Act, supra, gives us guidance. Section 10 says:

10 Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punishthe doingofanythingthatitdeems to becontrarytothe public good, and shall accordinglyreceive suchfair,largeandliberalconstructionand interpretationas willbest ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

44. The Act addresses wage discrimination which has developed over time through systems and practices of compensation. This is not necesssarily the result of individual practices, but in large measure is due to institutional practices which have resulted in wage discrimination. The legislation was designed notto punishor layblame forinequitable wage practices,but to provideanaffirmativeactionplanto identify and redress the discrimination. Just as the Act does not require wage discrimination to be proven as intentional, so too it does not hold those responsible for creating wage inequities as "guilty". In that respect we donotadoptthesubmissionbytheApplicantthatoneoftheteststheTribunalshouldapplyis"whoever

is responsible for the wage discrimination should be made to pay". The wage discrimination which exists is the culmination of individual practice, institutional wage practices and a history of employment and compensation in this province which historically has not recognized the value of women's labour in the workforce. The Legislature recognized and addressed these very dynamics in the construction and passage ofthis legislation. The object of the law is not to punish, but to give relief and redress to women for wage discrimination.

2 The Tribunal is assisted by theextensivecaselawinemployment and labour relations. The various tests currently used have arisen from the particular problem that each court or tribunal is mandated to address,suchastaxationliabilityforinjuriesorthe scope of collective bargaining. The Tribunal must utilize those definitions and those indicia for determining employer only in so far as they assist the Tribunal to define employer in statutory context of this legislation. The Tribunal must decide who is the employer on the facts in the case before it; however, the tests that it applies must utilize criteria that best accord with the objectives, structure and scheme of the Pay Equity Act, 1987.

3 The definition of employer for one Act does not restrict another definition for purposes of pay equity. It is for the Tribunal to interpret the statute where no definition of employer exists. There is a line of case law which assists the Tribunal in approaching this issue. The Alberta Court of Queen's Bench discussed the definition of employer in the context of alleged discrimination in hiring in Cormier v. Alberta Human Rights Commission et al (supra) page 16,026:

In reaching myconclusion,Istartwithtwopremises. The first premise is that words used in stating a legal rule in one context may not meanthe same wherethe wordsmaybe used to express a legal rule in another context. This is so whether the rule is one of statute or of common law. The meaning of the same words may be found to be different if the two legal rules reflect different policy considerations and perform different social functions. Thus, for example, the notions of 'master and servant', 'employer and employee', and 'employment' when those words are used in enunciating a legal rule that X is vicariously liable for the torts of Y, are employed as a means of delineating the limits of what is desirable as a matteroffairnessand reflectingusualexpectations asto who should bearthe risk of loss, as well as discouraging negligent work practices. The meaning attached to thosewordsinthatcontext and forthatpurpose may beofno assistanceindeterminingthe sense in which the same words are used by the legislature when it enunciates a legal rule that reflects other policy considerations. It becomes necesssary to examine the statute in which that legal rule is prescribed, in order to determine the sense in which the words are used in it.

and at page 16,028:

The words 'employer', 'employ' and 'employment', as used in the present statute must be regarded as ambiguous. Theyare capable of bearing either meaning just referred to, and perhaps intermediate meanings. There being ambiguity, the meaning to be attributed to them should be liberal, as far as that is consistent with the purpose of the Act and not inconsistent with some other provision of the Act-which must be read as a whole. I can find no impediment in the Act as a whole that stands in the way of giving a liberal interpretation to the words.

We also make reference to Regina v. Pereira (supra). The Alberta Court of Queen's Bench, May 18, 1988 wrote at page 200:

There is, in my view, an absence of statutory language in s.1(1)(c) of the Employment StandardsAct thataffordsanexhaustive definitionto the meaningofthewords 'employee' and 'employed'. The meaning and scope of the terms 'employee' and 'employed' must in myviewbe ascertainedfromboththe statutoryprovisions and objects ofthe Employment Standards Act. By so doing, the words in question might have a broader or a narrower meaning than would result from the application of the common law four fold test which would be appropriate in deciding whether there is vicarious liability.

The words 'employee' and 'employed' as those words appear in the definition section of the Employment Standards Act mustnotbe 'disembodied'fromthe Act, for the purpose of determining their meaning, but must be read and defined in "the context of the scheme and purpose of the legislation" and the meaning attributable to the words must be as contained in that context.

1 It is in this context that we reject the suggestion that the Tribunal adopt wholesale the definition of employer as defined by the Ontario Labour Relations Act. Where the Legislature has sought to incorporate a definition from the Labour Relations Act in its entirety, it has done so. For example, the definition of "bargaining agent" in the Pay Equity Act, 1987, makes reference to the definition in the Labour Relations Act. Where the Legislature saw fit to limit the Tribunal's jurisdiction, it has also done so; for example the definition of "establishment"hasspecificgeographicallimits. We cannot accept that in the absence ofsome definitionordirectionbythe Legislature,thatweare bound absolutelybythe definition of employer contained in the Ontario Labour Relations Act which has a very different purpose, that of regulationoflabourrelations. The purpose of Pay Equity Act, 1987 incontrast,isto redress genderwage discrimination through the implementation of pay equity programs. It is therefore more appropriate to consider those tests developed in the fields of labour relations, employment, human rights, employment standards and the common law which will assist in accomplishing the objectives of the Pay Equity Act, 1987. Then those criteria will be applied to the facts before the Tribunal to assist in finding the employer and establishment for pay equity purposes in any given case.

2 What elementsdoesitmakepayequitysensetoadoptfromexisting case law? We find the general approach of the Labour Board a useful one; the jurisprudence states that a flexible approach must be adoptedandnooneindiciumisdeterminativeoftheissueofwhoisthe employer. ToquotefromKennedy Lodge (supra) which comments on the tests developed in the York Condominum case (supra) at paragraph 42:

The Board was careful not to rank these criteria but rather, made it clear that each must be considered and assessed on the particular facts of the case.

That flexibilty in approach is compelling, particularly in the context of atribunalwhichisinterpretinga new statute for the first time. ThecriteriawhichtheTribunalwillapplymayhavemoreorlessrelevance in each fact situation, as the implementation of the law evolves and as other cases come before the Tribunal.

49. In York Condominium (supra), a landmark case on the definition of employer, the Labour Board wrote at paragraph 10:

Indeterminingwhichoftwo or morepartiesisor arethe employer(s)ofcertainemployees, the Board has applied a series of criteria which are listed below:

(1)

The party exercising direction and control over the employees

performing the work...

(2)

The party bearing the burden of remuneration...

(3)

The party imposing the discipline...

(4)

The party hiring the employees...

(5)

The party with the authority to dismiss the employees...

(6)

The party who is perceived to be the employer by the

employees...

(7)

The existence of an intentionto create the relationship of employer

and employees...

Withrespect to the partyexercisingdirectionand controloverthe employees,the Tribunalfindsthis criteria may be of assistance in terms of who makes the policy decisions regarding the nature of the work to be done and the assignment of responsibility for that work. It is not however useful with respect to the day to day control over employees, whichismoreatestfortheregulationoflabourrelations. Similarly, we do not find the tests of the right to hire, fire or discipline to be of particular assistance for pay equity purposes. The persons responsible for those activities may or may not have anything to do with decision-making in wage setting practices. Clearly the criteria of which party bears the burden of remuneration is a useful one forthe Tribunaltoconsiderbecause compensation of employees is the majorfocus ofthe Pay EquityAct, 1987 and the legislationmakesspecific provision for a percentage of payroll to be directedtowards wage adjustments to achieve the purpose of the Act. In terms of perception of employees, this may also be a helpful criteria in assessing who is the employer. We need not at this point consider the usefulness of the last test, whether there was the existence of an intention to create the relationship of employer and employees since it was not an issue in this case.

50. Where the factors point in a number of directions, it is useful to look at the purpose of the statute. The Ontario Labour Relations Board has utilized its purpose clause in much the same way. In Sutton Place (supra), in attempting to find the employer for "labour relations purposes" the Labour Board said at paragraph 43:

The weight to be accorded the various indicia of employer status set out in York Condominium cannotbe assignedinavacuum. When one ofthe factorsiscombinedwith anotherinthe handsofone company, the Boardmayconcludethattheyaccurately identify theemployer,thoughwhilestandingaloneorinsomeothercombinationtheymaynot. The significanceofeachindicator can only be ascertained through anappreciationofhowthey allfittogetherwithinthefactsof each case. It is onlythenthattheBoardcandecidewhich factorsinthe particularcase mostaccuratelyreflectand identifythe employerforcollective bargaining purposes.

2 After carefully weighing thesubmissionsofCounsel,andconsideringexisting case law, the Tribunal believesthatfour testsor criteria should be appliedwhenapproachingthe question of who is the employer. We do not intend these tests to be all encompassing. As with any new statute, interpretation must be approached in an incremental fashion, havingregardto the possibilitythatfuturecasesmay well add to the tests. The criteria which the Tribunal finds useful to apply are:

1. WHO HAS OVERALL FINANCIAL RESPONSIBILITY?

Indicia of this test include: Who hasresponsibilityforthebudget? Who bears the financial burden of compensation practices, and the burden of wage adjustments under the Act? Who is responsible for the financial administration of the budget? What is the shareholder investment or ownership? Who bears the responsibility of picking up the deficit or benefitting from the surplus?

2. WHO HAS RESPONSIBILITY FOR COMPENSATION PRACTICES?

The indicia forthis criteriainclude:Who setsthe overallpolicyforcompensationpractices? Who attaches the value of a job to its skill, effort, responsibility and working conditions? What is the labour relations reality, who negotiates the wages and benefits with the union or sets the wage rate in a non-unionized setting?

3. WHAT IS THE NATURE OF THE BUSINESS, THE SERVICE OR THE ENTERPRISE?

Within this test the following are helpful indicia: What is the core activity of the business, service or enterprise? Is the work in dispute integral to the organization or is it severable or dispensible? Who decides what labour is to be undertaken and attaches that responsibility to a particular job? What are the employees perceptions of who is the employer?

4. WHAT IS MOST CONSISTENT WITH ACHIEVING THE PURPOSE OF PAY EQUITY ACT?

If there is more than one possible employer, it assists the Tribunal in its determination to make reference to the purpose and objectives of the Pay Equity Act, 1987.

1 In applying those tests to the facts of this case, the Tribunal finds the following. With respect to who has overallfinancialresponsibility, itisevident thatthe financialliabilityrestswiththe Regional Municipality. The Board of Commissioners has carriage of the budget process in its initial stages, but the consolidation of the budget, the responsibilityformajorfinancialdecisions and the levying of taxes, securing of grants or long term financing all restwiththe Municipality. With respect to who bears the burden of payouts under the Act, clearlythefinancialburdenwillfalltotheRegionalMunicipality. In terms of financial administration, the Board's Manager of Finance makes the decisions with respect to daily and monthly expenditures, and istheapprovalauthoritywithrespecttotime sheets, claims and requisitions. The administrative roleofthe Municipality is to provide payroll services, administration with respect to the issuing of cheques, budget forecasting and costing studies. The Regional Municipality has responsibility for assuming any debts; the Tribunal received no evidence as to who would benefit froma surplus. Finally, the indicium of ownership is not of assistance here, given the public sector nature of the dispute.

2 With respect to the test of who has responsibility for compensation practices; it is clear that the Board of Commissioners sets the overall policy for compensation practices. However, two of the five Board members are elected members of Regional Council, representing the interests of the Regional Municipality at the Board. The Municipality ultimately bears the responsibility for any compensation rendered, as requiredbythe PoliceAct. Withrespect to who attaches the value of a job toitsskill, effort, responsibility and working conditions; it is the Board which has this responsibility. Finally, with respect to who negotiates wages and benefits with the police, the evidence was undisputed that this is under authority of the police Board.

3 In assessing the third test, what is the nature of the service, it is useful to make reference to the statutescreatingboththeMunicipalityandtheBoard. TheRegionalMunicipalityofHaldimand-Norfolk Amendment Act, supra, gives the Board responsibility for policing. The Police Act, supra, gives the Board administrative authority, however section 2 makes clear that the responsibility for policing is a "municipal" function. Section 2 (1) of the Police Act requires that: "Everycityand townisresponsible for the policing of and maintenance of law and order in the municipality and for providing and maintaining an adequate police force in accordance with the police needs of the municipality". The core activity of the policeforceis"policing"anditistheresponsibilityoftheMunicipality. Given this responsibility, it is obvious that the police force is integral and not dispensible; there is a statutory obligation for the Municipality to provide police services. With respect to who decides what work is to be undertaken and who attaches the responsibility to a particular job, it is the Police Act that governs the duties and functions of police officers under sections 46 and 47, and it is the Board that ensures the work is carried out and responsibilities are assigned. In terms of perceptions of employees, the Tribunal heard evidence that was not helpful or determinative in this case. Our only comment on Tribunal Member Laing's dissent is with respect to her observation on the Schedule appended to the Act; the Schedule has as its only purpose a definition of what the public sector consists of for purposes of the Act, and it does not assist the Tribunal in determining the question of who is the employer.

4 The fourth test toassisttheTribunalinitsdeterminationis:whatismostconsistentwith achieving the purpose and objectives of the Pay Equity Act, 1987. The purpose of Act as stated in section 4 is to redress systemic gender discrimination in compensation for work performed by employees in female job classes. In the case before us, the Applicant seeks to have the Regional Municipality declared the employer and assuchencompassthepoliceintheestablishment. The request is part of its efforts to redress systemic wage discrimination and this definition would not preclude the Applicant seeking comparisons for its members with job classes in the police force.

5 Suchcomparisonsarecontemplatedbythepurposesectionofthe Act which specifies that systemic gender discrimination is to be identified by undertaking comparisons betweenfemale and male jobclasses intheestablishmentintermsofcompensationandintermsofvalueoftheworkperformed. Subsection 6(5) of the Act specifies that where there are no male job classes within a bargaining unit in which the work performed is of equal or comparable value, that a female job class shall be compared to male job classes throughout the establishment. The Act contemplates that in the process to achieve pay equity, the strict parameters of bargaining unit are to be crossed in order to find job classes. The Act, while providing for existing collective bargaining structures to be recognized, also makes provision to ensure that women covered by the legislation can seek comparisons beyond the bargaining unit and throughout the establishment once it is determined that there are no male comparators in the bargaining unit. The Act contemplates the interrelationship of pay equity and collective bargaining with rights and obligations placed upon employers and bargaining agents throughout the pay equity negotiationprocess. Those rights and obligations are a vital part of the implementation structure of theAct.

6 Whether the job class comparisons take place within the bargaining unit or across bargaining units whereprovided for, the legislation has contemplated the final meshing oflabour relations and payequityin subsection13(10) whichspecifiesthatthe pay equity plan "prevails over all relevant collective agreements and the adjustmentsto rates of compensation required by the planshallbedeemedto beincorporatedinto andformpartoftherelevantcollectiveagreements." The law does not seek to disrupt collective bargaining relationships nor to reshape the description of existing bargaining units. Just as bargaining agents and employersareboundbyotherremediallegislationsuchas the Pension BenefitsAct,1987 andarerequired to negotiateto conformwithnew standards of public policy, so too theymustmeetthe requirementsofthe PayEquityAct,1987. Those requirements elicit the assistance of existing collective bargaining structures, they do not seek to dismantle them. It is the adjustments to rates of compensation .that become part of existing collective agreements, it is not required that the plans do. In this way the statutory framework of the Act provides for the minimum disruption to existing collective agreements while still making provision forthe achievement ofthelegislation'spurpose,theredressofsystemic genderwage discriminationbetween female and male job classes in an establishment of the employer. Although we do not rely on it, we are mindful of the fact that the exchange of letters in Exhibit 15 on the question of establishment indicates that early in the process, the Regional Municipality seriously considered this definition of employer and establishment a viable option in the development of a pay equity plan. Where there is more than one possible employer, the Tribunal should decide what is "necessary, fair and workable" within the structure ofthe Pay EquityAct,1987 and should make a finding that best serves the needs of those the Act is aimed at benefitting.

7 The Tribunal has the discretion to decide who is the employer for purposes ofthe Pay Equity Act, 1987. The Tribunal in applying its four tests, finds on balance that the Regional Municipality is the appropriate employer. The indicia with respect to overall budgetary control and liability being the responsibility of the Regional Municipality; the active role of the Regional Councillorsonthe policeBoard withrespecttolabourrelations and compensationpractices;the factthatthe RegionalMunicipalitywillbear the financial burden of wage adjustments under the Act; the responsibility of the Regional Municipality to providepolicingand nursingaspartofitsmunicipalfunction; and consideringthe purposeofthe PayEquity Act, 1987; the Tribunal finds that the Regional Municipality is the employer in this case. The majority of the Tribunal finds the Applicant has made its case in establishing that the Regional Municipality is the appropriate employer of the police for purposes of the Pay Equity Act, 1987 and since subsection 1(1) of the Act defines establishment as all employeesofanemployeremployedinageographic division, accordingly, we find the police to be part oftheRegionalMunicipality'sestablishment. The issue of whether job classes of the police force are to be used as male comparators was not before the panel at this time; it will form part of the negotiations these parties undertake and we make no ruling on this.

8 For the foregoing reasons, the Tribunal finds that the Haldimand-Norfolk Regional Police Force' is part of the establishment of the Regional Municipality of Haldimand-Norfolk and that the Regional Municipality of Haldimand-Norfolk is the employer ofthe policeforceforthe purposes ofthe Pay Equity Act, 1987.

DECISION OF TRIBUNAL MEMBER SHARON LAING, JUNE 30, 1989

1. I dissent from the majority on the key findings that:

i) the Haldimand-Norfolk Regional Police Force is part of the establishment of the Regional Municipality of Haldimand-Norfolk, and

ii) the Regional Municipality of Haldimand-Norfolk is the employer of the police force for the purposes of the Pay Equity Act, 1987.

1 Counsel for the Applicant submitted that the nurses are entitled to seek out such job classes as they see fit and accordingly, she argued that the Tribunal should interpret the statute toallowa broaddefinition of establishment in order for this to be accomplished. The historical undervaluation of women's work was addressed by the legislators in proclaiming the Pay Equity Act, 1987 however, as described by counsel for the Respondent Municipality, the structure of the Act is precise in its targets and remedies. The Tribunal's role is to ensure the achievement of pay equity within the limitations of the statute.

2 I accept the four criteria identified in the majority decision at paragraph 51. I concur that these tests may be added to or further developed as future cases are determined by the Tribunal.

3 The indicia with respect to overall financial responsibility recognize participation by both the Regional Municipality and the Regional Board of Commissioners of Police. I am not persuaded by the Applicant's

argument that the Regional Municipality ultimately controls the "purse strings" of the Regional Board of Commissioners of Police. It is clear that the final determination of budgetary estimates regarding policing is not made by the Regional Municipalitybutrather,bytheOntarioPoliceCommission. Subsection 14(3) of the Police Act reads as follows:

Where the council does not agree with the board on the estimates or on the adequacy of the number of members of the police force or the accommodation, arms, equipment or other things for the use and maintenance of the force, the commission shall determine the question after a hearing.

That such a hearing has not taken place between these parties does not diminish the fact that the ultimate budgeting authority does not rest with the Regional Municipality.

1 In determining who bears the responsibilityforcompensationpractices,itisevidentthat the Regional Board of Commissioners of Police is responsible for the overall policy decisions with respect to compensationpractices;attachingthe value ofa job to itsskill, effort,responsibilityandworkingconditions; and negotiating the wages and benefits with the police force. The uncontradicted evidence of Mr. Orval Shortt, Mayor of Nanticoke, Member of the RegionalCouncil and Chair of the Board of Commissioners of Police was precise and relevant. He clearly distinguished his role and mandate as a Regional Councillor from his role as Chair of the Board of Commissioners of Police. He receives no instruction or directive fromthe RegionalMunicipalitywhile sittingas Chair for the Board ofCommissionersofPoliceand is"duty bound" in that role to do only what is best for the Board.

2 Various statutes are relied upon by the majority in their reviewing of the "nature of the service test". I do not find this reference to the statutes very helpful. On the one hand, the Police Act recognizes that municipalities have the responsibility to provide policing in their geographical territory. On the other, the statute which is specific to this municipality, The Regional Municipality of Haldimand-Norfolk Amendment Act, S.O. 1973, c.155returnsthatpolicingresponsibilityandfunctiontotheRegional Board ofCommissionersofPolice. Subsection 8(5) of the Police Act, describes the Board's power to contract andsue,andestablishestheBoardof Commissioners of Police as a separatelegalentity. Further, the Pay Equity Act, 1987 contemplates these bodies as distinctinsubsections 1(a) and (b) of the Schedule to the Act, by identifying them separately.

3 The fourth test raises the question of what is most consistent with achieving the purpose and objectives of the Pay Equity Act, 1987. In order for the Tribunal to be persuaded to include the police in an expandeddefinitionofestablishment and employerinthis case, Ifind itnecessaryforthe Applicant to prove that the purposes of the Pay Equity Act, 1987 would not otherwise be achieved. The Applicant has not made out such a case, and consequently this test does not direct me to the outcome arrived at by the majority.

4 Finally, accepting the majority decision in this matter is to attach to the Regional Municipality the responsibility for establishing and maintaining compensation practices that provide for pay equity, as required by subsection 7(1) of the Pay Equity Act, 1987. Such responsibility contradicts the well

established labour relations reality between the Regional Board of Commissioners of Police and the RegionalPoliceForce. In the absence of evidence by the Applicant Union that such disruption is necessary in order to achieve pay equity, I find the Regional Police Force is not part of the establishment of the Regional Municipality, and the Regional Board of Commissioners of Police is the employer of the police force for these purposes.