Wentworth County Board of Education v. Wentworth Women Teachers' Association, 1990 CanLII 3993

0004-89; 0005-89; 0006-89: WentworthCountyBoardofEducation, Applicant v. WentworthWomen Teachers' Association, Ontario Public School Teachers' Federation, Wentworth District, Respondents; Ontario Secondary School Teachers' Federation, District 36, Ontario Secondary School Teachers' Federation, Intervenors; Wentworth County Women Teachers' Association, Ontario Public School Teachers' Federation, Wentworth District, Applicants v. Wentworth County Board of Education, Respondent;PerthCountyWomenTeachers' Association, Ontario Public SchoolTeachers'Federation, Perth District, Applicants v. Perth County Board of Education, Respondent.

Before : Beth Symes, Chair; Donald Dudar and Susan Genge, Members

Appearances: Elizabeth Lennon and Karen Schucher for Wentworth County Women Teachers' Association, Ontario Public School Teachers' Federation, Wentworth District, Perth County Women Teachers' Association and Ontario Public School Teachers' Federation, Perth District; David Brady and Janice Baker for Wentworth County Board of Education and Perth County Board of Education; Sherry Liang and Maurice Green for Ontario Secondary School Teachers' Federation, District 36 and Ontario Secondary School Teachers' Federation.

Cite As: Wentworth County Board of Education (1990), 1 P.E.R. 132

Job Class

Two schoolboards argued thatallelementaryclassroomteachersconstituteone jobclassonthe basis that they all occupy one position. The Tribunal held that it is not helpful to approach the questionof job class bydeterminingthenumberof positions. The Act does not define position, but it does define job class. In order to constitute a job class, positions in an establishment must meet all four criteria. In this case, the issuesindisputeamongstthe partiesare whetherteachersrequiresimilarqualifications and/orwhetherthey havethesamecompensationschedule,salarygradeorrangeofsalaryrates. Withrespecttothefirstissue, the Tribunal finds that while all teachers require an Ontario Teaching Certificate, teachers in different categoriesrequiredifferentqualifications. The differences in qualifications are sufficient to justify differences incompensation. Therefore, elementary teachers are divided into seven job classes based on qualifications. Withrespect tothe second issue,the words "compensationschedule,salarygradeor range ofsalaryrates" weremeanttoprovidealternativemethodsforexaminingthe compensationfactorinthe jobclassdefinition. If any of the three is different, then the last component ofthedefinitionofjobclassisnotmet. In this case, therangesofsalarygradesandthenumberofstepstomaximumdifferfromcategorytocategory. This grid is not continuous. Elementary teachers do not have the same range of salary rates and are therefore in seven different job classes.

Pay Equity Plan

Elementaryschoolteacherswererepresentedytwo different bargainingagents: the Ontario Public School Teachers'Federationrepresentedmale teachers and the Federation ofWomenTeachers'Associations of Ontario represented female teachers. The issue was whether there should be a single pay equity plan for theelementaryteachersoraplanforeachbargainingagent. The Tribunal held that one pay equity plan was appropriate after having considered the collective bargaining history between the parties, the relevant collective bargaining statutes, the current collective agreements and the role of the joint branch affiliates whichholdexclusivebargainingrightsforallelementary teachers. In this case,itmakessenseforthesame organization and structure that negotiated the terms and conditions of employment to review those compensation practices to ensure compliance with the Act.

Practice and Procedure - Interveners

The bargaining agent for secondary school teachers applied to intervene in the proceedings on the basis that the decision because it would also determine job class for secondary school teachers. The Tribunal permitted limited intervention on the grounds that the OSSTF possesses unique information and expertise concerningthe historicaldevelopment ofthe grid systemofcompensationforteachers-anissue in dispute. Because of the nature of the evidence and the normally adversarial relationship between OSSTF and the Board,theTribunalpreferstohear that evidence through OSSTF's participation. Thelimitedintervention would not unreasonably add to the length or the cost of the proceedings.

Catégories d'emplois

Deux conseils scolaires maintenaient que tous les enseignants du palier élémentaire appartenaient à une catégorie d'emplois pour le motif qu'ils occupaient tous un poste. On n'a pas besoin, pour étudier la question du nombre de catégories d'emplois, de fixer le nombre de postes. La Loi ne définit pas le terme «poste», mais elle définit la «categorie d'emplois». Afin de constituer une catégorie d'emplois, les postes d'un établissement doivent répondre aux quatre critères. Dans la présente cause, les questions en litige entre les parties sont les suivantes: les enseignants doivent-ils posséder des qualités semblables et sont-ils visés par les mêmes grilles de rétribution, les mêmes niveaux de salaire ou les mêmes gammes de taux de salaire? En ce qui concerne la première question, le Tribunal conclut que les enseignants appartenant à différentes catégories ont besoin de qualités différentes et que celles-ci suffisent à justifier des rétributions différentes. Même si tous les enseignants ont besoin d'un brevet d'enseignement de l'Ontario, cette condition n’est pas suffisamment spécifique pour définir la catégorie d'emplois. Par conséquent, les enseignants du palier élémentaire se répartissent entre sept catégories d'emploi fondées sur les qualités. Quant àladeuxième questionenlitige,chacundes termes«grille de rétribution, niveaudesalaireougamme de taux de salaire» a été prévu afin de constituer un mode d'examen différent du facteur de la rétribution dans la définition des catégories d'emplois. Si un de ces trois éléments est différent, la dernière condition de la définition du terme «catégorie d'emplois» n’est pas remplie. Dans la présente cause, les gammes de tauxdesalaireetlenombred'échelons entreleniveauminimaletleniveaumaximaldiffèrent d’une categorie à l'autre. Cette grille n’est pas continue. Par conséquent, les gammes de taux de salaire qui s'appliquent aux enseignants du palier élémentaire ne sont pas les mêmes et les enseignants appartiennent à sept catégories d'emplois différentes.

Pratique et procédure - Intervention

La FEESOa déposé une requêteeninterventiondans l’instanceenfaisant valoirqueladécisionpeut définir des catégories d'emplois s'appliquant aux enseignants du palier secondaire. Le Tribunal a permis à la FEESO d'intervenir de façon limitée. La FEESO possède des renseignements et une expérience uniques en ce qui concerne l'historique de l'élaboration d’une grille de rémunération des enseignants, laquelle constitue une questionenlitige. En raison du caractère des preuves et des rapports normalement opposés qui existent entre la FEESO et le conseil, le Tribunal préfère entendre ces preuves de la FEESO même. Ce mode d'intervention limitée n'allongerait pas indûment l'instancenin'en augmenterait considérablement les dépens.

Programme d'équité salariale

Lesenseignants/enseignantesdupalierélémentaire ont représentées pardeuxassociations:lesenseignants par la Fédération des enseignants des écoles publiques de l'Ontario et les enseignantes par l'Association des enseignantes. La question en litige concerne la nécessité a préparé un programme ou deux programme d'équité salariale. Le Tribunal a décidé qu'un programme d'équité salariale était nécessaire. Le Tribunal a étudié l'historique des négociations collectives entre les parties, les lois pertinentes dans le domaine des négociations collectives et les conventions collectives en vigueur. En raison des combinaisons et des permutations dans le domaine des conventions collectives du personnel enseignant qu'autorise la Loi sur la négociation collective entre conseils scolaires et enseignants, la seule façon de définir l'unité de négociation estd'examinerlaconventioncollectivequiafaitl'objetd’unenegociation. Le Tribunal conclut également que les sections locales conjointes de l'Association des enseignantes et de la Fédération des enseignantsjouissent de droits exclusifs de négociation en ce qui concerne tout lepersonnelenseignant du palier élémentaire et que, par conséquent, les sections locales agissant conjointement constituent l'agent négociateur aux fins de la Loi. Dans la présente cause, il est normal que la même organisation et structure qui a négocié les conditions d' emploi étudie les pratiques en matière de rémunération afin d'assurer le respect de la Loi.

DECISION OF B. SYMES, CHAIR, JANUARY 22, 1990

THE ISSUES

1WentworthCountyBoardofEducation(the"WentworthBoard"orthe"Board")requestedahearing beforethe Tribunalwithrespectto anOrderofaReviewOfficerdatedJune 2, 1989whichfound thatthere were seven job classes for elementary classroom teachers. It wastheBoard'spositionthatthis aspect of the Order was wrongly decided and that there is only one job class for elementary classroom teachers.

2Wentworth Women Teachers' Association and the Ontario, Public School Teachers' Federation, Wentworth District (the "Federations") requested a hearing with respect to the same Order which also ordered that separate pay equity plans be prepared for the male and female elementary teachers. It was the Federations' position that this aspect of the Order was wrongly decided and that only one pay equity plan is required for the bargaining unit which consists of male and female elementary teachers.

3Perth County Women Teachers' Association and the Ontario Public School Teachers' Federation, Perth District (the "Federations") requested a hearing with respectto anOrder ofa Review Officer dated June 16, 1989 whichrequired separate pay equity plans for the Women Teachers'and the Ontario Public School Teachers' Federations. The Perth Federations took the same position as did the Wentworth Federations, namely, only one pay equity plan is required for elementary teachers.

4These matters were listed together by the Tribunal and heard together.

5The Ontario Secondary School Teachers' Federation, District 36 and the Ontario Secondary School Teachers' Federation (OSSTF) sought leave of the Tribunal to participate fully in these proceedings with respecttotheissueof the definition of job class. TheWentworthBoardagreedtotheirparticipation. The Federations objected.

INTERVENTION

OSSTF'S POSITION

1 OSSTF represents all secondary school teachers in the province of Ontario, and, in particular, represents the secondary teachers at the Wentworth Board. It was their position that OSSTF will be substantially and directly affected by this decision which, they say, will define job class for classroom teachers. Counsel for OSSTF contended that all classroom teachers are engaged in the same job, that is, teaching, and all have the same duties and responsibilities. Individual teachers are paid on a salary grid which recognizes an individual's qualifications and experience. The system used to evaluate the qualifications of elementary teachers, Qualifications Evaluation Council of Ontario (QECO), grew out of theCertificationSystemdevelopedandusedbyOSSTF. OSSTF maintained that the definition of job class forone setofemployees,elementaryteachers,willhave animpactonanothersetofemployees,secondary teachers,ofthe same employerCounselstated thatthejobclassesproposedbythe Federations,ifadopted bythe Tribunal, would affect OSSTF in its ongoing pay equity negotiations withthe WentworthBoard as well as its negotiations with other boards of education throughout the province.

7. It was OSSTF's positionthatitwasnotnecessarytohaveadirectlegalinterestin the matter in order to be permitted to participate in these proceedings. Counsel stated that the Tribunal has a discretion to permit their participation, and should base that discretion on the following criteria:

1 How remote or direct is the interest of the party seeking to intervene?

1 How useful would it be for the Tribunal to have this party participate?

1 Is there prejudice to the other parties to have such participation?

The Tribunal should balance these criteria based on the Tribunal's goal of a fair, accessible and efficient hearing procedure.

1 Counsel for OSSTF submitted that there is a trend toward permitting intervention in disputes between parties. That trend was reflected in the changes made to the Ontario Rules of Practice for Courts in 1984 (Rule 13) and in decisions of the courts and other tribunals. Intervention has been permitted when a decision would have a profound effect on the intervenor (Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc. et al. (1985), 1985 CanLII 1957 (ON HCJ), 51 O.R.(2d) 23 (Div. Ct.) at p. 44); when the case involves a question which actually or potentially affects many people or organizations (Re Ontario Energy Board (1985), 1985 CanLII 2086 (ON HCJ), 51 O.R. (2d) 333 (Div. Ct.) at p. 338; and in Gryd Construction Inc., [1975] O.L.R.B. Rep. Mar 230 at p. 233); in the first case where an issue will be determined which will have potential serious consequences (Batten and Newfoundland Association of Public Employees v. Bay St. George Community College (1986), 59 Nfld. & P.E.I. R. 59 (Nfld. S.C.T.D.) at p. 61); and finally,wheretheintervenorhasaspecialinterest,knowledgeorconcernthat will be useful to the Court (R. v. Kopyto (12 February 1987), (Ont. C.A.) [unreported]).

2 Counsel submitted that OSSTF ought to be permitted to participate in these proceedings as this is the first case which will define job class for classroom teachers. Theeffectofthisdecisionis unknown, but is potentially significant for OSSTF. OSSTF hasanimportantbodyofknowledge about the certification of

teachers which would be ofassistancetotheTribunal. Although the participation of OSSTF will lengthen the hearing as it plans to call two witnesses, this will cause little prejudice to the parties. It was their positionthatwhenthe Tribunalbalancedfairnessand accessibilityinthese proceedings, OSSTF should be permitted to participate.

WENTWORTH BOARD OF EDUCATION'S POSITION

1 Counsel for the Wentworth Board submitted that the Pay Equity Act, 1987 is quasi-constitutional legislation and that in interpreting the statute, the Tribunal should use a purposive approach. The Tribunal should assume that it has implicit powers unless there are statutory restrictions.

2 Counsel for the Board agreed that the law of intervention is expanding and that a party no longer needs a direct interest to participate in the proceedings. Increased participation is permitted to promote an efficient system of administration of justice, to protect absent persons' interests, to ensure a better informedTribunal, and to legitimize a Tribunal'sdecision(Muldoon, PaulR., Law of Intervention: Status andPractice (Aurora,Ont.:CanadaLawBook,1989)atp.14). The Tribunal should permit participation if the intervenor has a vital, legitimate or substantial interest.

3 It was Counsel's submission that this case involved complicated facts, was not local in nature, and was one of broad principle. It was the Board's position that the Tribunal should have all the information available to allow a reasoned decision. As OSSTF developed the first grid structure for paying teachers, it possesses unique information to help the Tribunal make its decision. Not having the OSSTF's participationwillreducethe base ofinformationfortheTribunal, and maycauseextraworkforthe Tribunal in future cases.

4 It was the Board's position that the decision will define job class for all classroom teachers. Counsel said that it was unrealistic for a public body, such as this Board of Education, to agree to different job classes with its three teacher unions. Therefore, the decision in this case will substantially affect the pay equitybargainingbetweentheBoardandOSSTF. The Wentworth Board does not represent OSSTF nor OSSTF's interest in explaining the classification system. Moreover, the participation of OSSTF can be done in an orderly waywithout unnecessarycost and delay. For all these reasons, Counsel for the Board submitted that the OSSTF should be permitted to participate in these proceedings.

THE FEDERATIONS' POSITION

1 Counsel for the Federations stated that there were two forms of participation in a hearing: as a party or as an intervenor. It was their position that OSSTF should not be permitted to participate in either capacity.

15. Counsel submitted that there were two types of party: first, those entities listed in the statute governing the proceedings; secondly, those entities entitled by common law or administrative law to participate. It was their position that subsection 32(1) of the Pay Equity Act, 1987, lists the parties specified by statute. This section is a minimum list ofparties,not a maximum. To determine the question of parties, the Tribunal must go on to consider that although an entity is not listed in the statute, that entity

may be entitled by law to be a party to the proceeding pursuant to section 5 of the Statutory Powers Procedure Act, R.S.O. 1980, c.484 and Re Federation of Women Teachers' Association of Ontario and Ontario Human Rights Commission et al. (1988), 67 O.R. (2d) 493 (Div. Ct.) at p.512. It was Counsel's submission that the reasoning of the Court in MacCosham Van Lines (Canada) Co. Ltd. v. Minister of Transportation & Communications et al. (1988), 1988 CanLII 4728 (ON HCJ), 66 O.R. (2d) 198 (Div. Ct.) was based onthe excludinglanguage ofthe Public Commercial Vehicles Act, R.S.O. 1980, as amended, c.407, or, in the alternative, that the case was wrongly decided and should not be followed.

2 Counsel submitted that those entities entitled by law to participate under section 5 of the Statutory Powers Procedure Act are thoseentitiesentitledto be present by natural justice, or by a dutyoffairness. Theymaybe describedas thosepersons whoselegal rights would be substantiallyand directlyaffectedby the decision. These are the same kind of persons who would be entitled to third party notice in arbitrations.

3 Counsel submitted that parties participate as of right in a proceeding, are entitled to participate fully, and are bound by the decision.

4 The Federations took the position that OSSTF was not a party to these proceedings as they are neither listed in subsection 32(1) of the Act nor aretheysubstantiallyand directlyaffectedbythe decision.

5 Counsel further submitted that the other form of participation is as a friend of the Tribunal. It was her position that participation as an intervenor remains limited in non-constitutional legal cases and in proceedings before administrative tribunals (Ontario Legal Aid Plan (29 August 1989), (O.L.R.B.) [unreported] at para. 3; Guadagni v. Workers' Compensation Board of British Columbia (1988), 1988 CanLII 3134 (BC CA), 34 Admin L.R. 1 (B.C.C.A.)).

6It was Counsel's position that participation as a friend oftheTribunalwasamatterin the discretion of the Tribunal. She argued that the Tribunal should exercise its discretion onlywheretheissuesinacase areofbroad general application and where the proposed intervenor is qualified to offer some unique and helpfulperspectivetotheTribunalontheissuesinthecase. The admission of an intervenor should be done on strict terms. The participation should be limited to what is necessary to enable the Tribunal to understand the issues. Counsel submitted that intervenors should not participate in the calling of evidence unless they demonstrate that they are able to offer specific evidence which is not available to the parties. The intervenor should not be permitted to expand the issues. Counsel submitted that the Tribunal should exercise its discretionbalancingthe Tribunal's goal of expeditious hearings and the statutory deadlines for compliance. As a pay equity plan is negotiated between the bargaining agent and the employer and is deemed approved, there is very little that is of broad significance to permit intervention.

7The Federations' position was that the issue in this case, the appropriate job class for elementary classroom teachers, does not affect secondary school teachers, nor does it affect OSSTF's right to negotiate and agree upon a different definition ofjob class with the Wentworth Board. This decision will bindneitherOSSTF northeWentworthBoardwithrespecttothepayequityplanforthesecondaryschool teachers. Counsel submitted that OSSTF was simply concerned about the precedental value of the decision, which is not a basis upon which to justify participation.

8Finally, counsel submitted that the salary grid for secondary teachers is so different from the grid for elementaryteachers,thatevidence concerning the development ofthe secondarygrid would notbe helpful in determining job class for elementary teachers. If job class for secondary teachers were to become an issueinthiscase,itwill expand the need forevidenceandargumentandtherebylengthenthecase. Finally, the Wentworth Board could call OSSTF witnesses as part of its case.

DECISION

1 After the first day of hearing, the Tribunal issued an oral ruling. It was the unanimous decision of the Tribunal that OSSTF was neither a party under subsection 32(1) of the Act, nor under section 5 of the Statutory Powers Procedure Act. In a majority decision, the Tribunal permitted OSSTF to participate in these proceedings as anintervenorsolelyonthe issue ofwhatisthe appropriatejob class for elementary teachers. OSSTF participationwas limited to calling evidence with respect to the historical development of the payment of teachers, based on a grid of qualifications and experience. OSSTF was not permitted to cross-examine witnesses on any other issue. OSSTF was permitted to make submissions on the impact ofthishistorical developmentontheissueoftheappropriatejobclassforelementaryteachers. Ms. Genge would not have permitted OSSTF to have participated in these proceedings. The Tribunal promised to provide written reasons for its decision.

2 The Tribunal has the fundamentalpowertocontrolitsownproceduretoensurethatjustice is done. The narrow test requiring a direct legal interest in order to participate in a case is no longer used by the courts nor by administrative tribunals (Fishing Vessel Owners' Association of British Columbia v. Canada (1985), 57 N.R. 376 (Fed. C.A.) at p. 381). The Tribunal agrees with counsel for the Wentworth Board that increased participation may assist to promote a more fair, accessible and efficient system for the administration ofjustice. Moreover, an added participant may assist the Tribunal to come to a more balanced and informed understanding of the facts and issues in dispute and thereby enable it to make better decisions.

3 It is the Tribunal's decision that persons may participate in a hearing either as a party as of right or as an intervenor at. the discretion of the Tribunal.

PARTICIPATION AS A PARTY

26. Who are the parties to a proceeding under the Pay Equity Act, 1987? All counsel agreed that although subsection 32(1) of the Act listed the parties defined by statute, it did not define the upper limit as to who may be a party to a proceeding. All counsel submitted that to determine the issue the Tribunal mustalsoconsidersection5 ofthe Statutory Powers Procedure Act. I adopt these submissions. ThePay EquityAct,1987 specifies those parties who must be allowed to participate in a proceeding. If there are other persons, notspecifiedbythe Act, who are nevertheless entitled by law to be parties, then they must be allowed to participate as well. The Tribunal is persuaded that the principles of natural justice oblige the Tribunal to add persons who are entitled by law to be part of the proceeding (Fishing Vessel Owners' Association of British Columbia v. Canada; Re Federation of Women Teachers Association of Ontario). The Tribunal is not persuaded to follow MacCosham Van Lines (Canada); the Court in that casewasinterpretinga statutewhichsaid "only the applicant and the Minister are parties to the hearing ...."

Public Commercial Vehicles Act ss.l0b(5). Subsection 32(1) of the Pay Equity Act, 1987 does not include the same restrictive language and therefore does not oust the application of section 5 of the Statutory Powers Procedure Act. Moreover, the exclusion of such persons would be inconsistent with the principles of natural justice.

2 Those persons who are not expressly required by statute to be made parties, but who are nevertheless otherwise entitled by law to be parties in a proceeding must have a substantial and direct interest in the outcome of the case. These persons must be notified of the case and be permitted to participate in order to meet the requirements of natural justice. Such persons participate as of right in the proceedings; they may participate in all aspects of the case and are bound by the decision.

3 It is the Tribunal's decision that OSSTF is not a party to these proceedings. The determination of jobclassforelementaryclassroomteachersistheissue in this case. OSSTF is not bound by thisdecision andmaynegotiateforandagreeuponadifferentdefinitionofjob class for secondaryteachers. Therefore, OSSTF does not have a direct and substantial interest in the outcome of this case.

PARTICIPATION AS A NON-PARTY INTERVENOR

1 Should OSSTF be permitted to participate as a non-party intervenor? The Tribunal has the authority to permit interventions in a proceeding pursuant to subsection 29(2)(b) of the Act and may exercise that authoritypursuanttoRule16.01. Whether the Tribunal permits non-party intervenorstoparticipateinthe proceedings is an exercise of the Tribunal's discretion.

30. The Tribunal has used the following criteria to determine participation in this case:

(i) What is the nature and scope of the Intervenor's concern in these proceedings?

(ii) Will the participation of the Intervenor assist the Tribunalinreachingitsdecision? Will the Intervenor bring to the proceeding an expertise concerning the policy, factual or legal issues in dispute which is different than that of the parties?

(iii) Arethereothermechanismsfordealing with the Intervenor'sconcernssuchasthe filing of independent complaints; the consolidation of hearings; appearing as a witness for one of the parties?

(iv) What prejudice will there be to the parties if the Intervenor is permitted to participate:

(a) will the intervention widen the issues in dispute?

(b) will the intervention delay an expeditious determination of the dispute?

(c) will the intervention unreasonably add to the cost of the proceedings

for the parties? If the intervention is allowed, the nature and extent of the participation will be determined by the Tribunal.

31. OSSTF seeks to participate in these proceedings concerning the definition of job class for elementary classroom teachers. OSSTF may be affected bythedecision,buttheirconcernisnodifferent than that of other teacher federations or of other boards of education throughout Ontario. All may be

affectedbythisdecision,becauseitisthefirstoccasiontheissueof job class has been dealt with by the Tribunal.

2 There is no dispute that the OSSTF first developed the grid system for paying teachers based on their qualifications and experience and that the system used for elementaryteachers,QECO, grew out of the secondary school experience. The Tribunal believes that OSSTF possesses unique information and expertise concerning the historical development of the grid system, which is an issue in dispute. This expertise is different than that of the Federations and the Wentworth Board. Although the Wentworth Board might call witnesses from the OSSTF with respect to this evidence, because of the nature of the evidence and the normally adversarial relationship between OSSTF and the Board, the Tribunal prefers to hear that evidence through OSSTF's participation. Such participation will not widen the issues in dispute. Counsel for OSSTF advised the Tribunal that, if permitted to participate, she intended to call two witnesses and that this may lengthen the proceedings. We are not persuaded that the limited intervention would unreasonably add to the length or the cost of the proceedings for the parties.

3 On the basis of these criteria, the Tribunal exercised its discretion and permitted OSSTF to participate on the limited basis contained in the oral decision.

HOW MANY PAY EQUITY PLANS MUST BE PREPARED FOR ELEMENTARY TEACHERS?

1 The Pay Equity Act, 1987 requires the employer and the bargaining agent for a bargaining unit to negotiate in good faith and endeavour to agree on a pay equity plan for the bargaining unit (ss.14(2)). It was the Federations'positionthatonlyone pay equity plan was required at each Board for the bargaining unit consisting of. all male and female elementaryteachers. The Wentworth and Perth Boards maintained that two pay equity plans must be prepared for elementary teachers, one for the male teachers who are represented by the Ontario Public School Teachers' Federation (OPSTF), the other for the female teachers, represented by the Federation of Women Teachers' Associations of Ontario (FWTAO).

2 The term "bargaining unit" is not defined in the Pay Equity Act, 1987 norinthe School Boards and Teachers CollectiveNegotiationsAct,R.S.O.1980,c.464. However, where the term is used in thePay Equity Act, 1987, bargaining unit determines the scope ofthe payequityplanwherethere is a bargaining agent. Therefore, "bargaining unit" must be given meaning for elementary teachers.

3 The Pay Equity Act, 1987 states: "bargainingagent"means a trade unionas definedinthe Labour Relations Act thathasthe status ofexclusive bargainingagent under that Act inrespectofanybargainingunitor units inanestablishment and includesanorganization representing employees to whomthis Act applies where such organization has exclusive bargaining rights under any other Act in respect of such employees.

4 ThePayEquityAct,1987 setsup boththe structurefor pay equity bargaining and a series of rights and obligations for bargaining agents and employers. In unionized workplaces, both the responsibility for payequityand the scopeofanypayequityplanare determinedbythe relatedquestions ofbargainingagent and bargaining unit. Therefore, it is necessary to determine both the bargaining agent and the bargaining unit for elementary teachers at these Boards.

FACTS

1 Teachers are persons who hold valid teaching certificates and who are employed by a Board under either a probationary or a permanent teaching contract to teach (Education Act R.S.O. 1980, c.129 as amended ss.1(1), 66, s.230, and s.233). The standard form teaching contract provides that the Board agrees to employthe personas a teacher and the teacher agrees to teach (R.R.O. 1980, Reg 277, Form 1). Individual teaching contracts and the teacher collective agreements must be read together in order to determine the rights and duties of a teacher (School Boards and Teachers Collective Negotiations Act, s.54) .

2 The Teaching Profession Act, R.S.O. 1980, c.495, establishes the Ontario Teachers' Federation (the "OTF") as the professional organization for teachers in the province. All teachers are required to belong to the OTF as a condition of teaching in Ontario. The OTF is composed of five affiliated groups: the Ontario Secondary School Teachers' Federation (OSSTF), the Federation of Women Teachers' Associations of Ontario (FWTAO), the Ontario Public School Teachers' Federation (OPSTF), l'Association des enseignantes et des enseignants franco-ontariens (AEFO), and the Ontario English CatholicTeachers'Association(OECTA). Membership in each of the five affiliates is determined by a by­law of the OTF. All women teachers teaching in a public elementary school must be members of FWTAO; men teachers teaching in a public elementarypublicschoolmustbemembersofOPSTF. The constitution and bylaws of OPSTF also permit female elementary public school teachers to be members of OPSTF (article IV).Therehasbeena lengthyhistoryoflitigationinthe courtsand beforethe Ontario HumanRights CommissionbetweenFWTAOandOPSTF with respect to membership. Membershipisnotanissuefor this Tribunal. FWTAO and OPSTF have a common position on pay equity and wish to bargain pay equity jointly with the Wentworth and the Perth Boards of Education.

3 A branch affiliate is the local organization composed of all the teachers employed by a board who are members of the same affiliate. Branch affiliates are under an obligation to represent their members employed by the Board during the negotiation process for a collective agreement (School Boards and Teachers Collective Negotiations Act s.5). That Act establishes the structure of collective bargaining for teachers. Two or more Boards may choose to bargain together; two or more branch affiliates may choose to bargain together. A Board is bound by the decision of the branch affiliates to bargain separately, or together(OECTAand AEFOv.TheCochrane-IroquoisFallsRomanCatholic Separate SchoolBoard, (23 July 1986, Education Relations Commission [unreported]).

4 The Tribunal heard evidence of the collective bargaining at the Wentworth Board, at the Perth Board, and throughout the province of Ontario. Since elementary teachers have bargained collective agreements, the branch affiliates of FWTAO and OPSTF have bargained together, not only at the Wentworth and PerthBoards,butalsothroughouttheprovince. There has never been an instance where the affiliates of FWTAO and OPSTF have bargained separately. The School Boards and Teachers Collective Negotiations Act, whichwasenactedin1975, merelycodifiedtheexistingbargainingpractices for elementary teachers throughout the province.

42. The branchaffiliates of FWTAO and OPSTF appoint equal numbers of members to an Economic Policy Committee that negotiates the collective agreement on behalf of all elementary teachers. The conductofthe negotiations ismonitoredbyallelementaryteachers,not by the memberships of each ofthe

branch affiliates separately. Barbara Young, an executive staff member in the collective bargaining department of FWTAO testified that the bargaining proposals developed by the Economic Policy Committee are approved by all elementary teachers. When a tentative collective agreement is to be ratified, all elementary teachers are polled together; their ballots are not distinguished by affiliate. The Education Relations Commission conducts strike votes of all the elementary teachers. The resulting agreement is executed by the Board and both branch affiliates as one collective agreement for all elementary teachers.

5 The formulation of bargaining demands, the negotiation process, and the resulting collective agreement, require the continued co-operation of both branch affiliates. Should that co-operation break down, eitherbranchaffiliatemaywithdrawfromjoint bargainingforthe next round of negotiations (School Boards and Teachers Collective Negotiations Act, ss.4(5)). That situation has never occurred between theFWTAOandtheOPSTF branchaffiliatesinthehistoryofnegotiatingelementarycollectiveagreements, neither at the Wentworth Board, nor at the Perth Board, nor in the province of Ontario.

6 There is one collective agreement for all elementary teachers with the Wentworth Board and one collective agreement for all elementary teachers with the Perth Board. The masthead of the Wentworth collective agreement, for example, on behalf of the Board, of the first part, and the elementary teachers, of the second part, is clearly a two-party agreement. As well, the scope clause of the Wentworth collective agreement, article 2.01, refers to "all teachers". The Perth collective agreement covers "all certified teachers", article 1.01; provides that "this agreement shall be an agreement" and refers to "each of the parties"; states that the collective agreement shall govern the parties and all teachers contained herein.

THE FEDERATIONS' POSITION

1 It was the Federations' position that, for the purposes of pay equity, bargaining unit should be defined as all employees who are actually covered by a collective agreement. In Wentworth and in Perth, the bargaining unit pursuant to each collective agreement is all elementary teachers.

2 The Federations maintained that this definition of bargaining unit is consistent with the collective agreementswitheach Board, with the bargaining regime established under School Boards and Teachers CollectiveNegotiationsAct,andwiththe historicalpatterns ofcollective bargainingforteachers. Counsel submittedthatthe Tribunalshould notunwindthe lengthybargaininghistoryonthe purelyhypotheticalbasis that the branch affiliates may one day decide to go their separate ways in collective bargaining.

47. Counsel submitted that the Tribunal should reject the Boards' submission that the School Boards andTeachersCollectiveNegotiations Act isthe bedrock authoritywhichdeterminesthe bargainingunits for teachers across the province. It was her position that the statutory bargaining relationships provided by the School Boards and Teachers Collective Negotiations Act are akin to a certificate under the Labour Relations Act, R.S.O. 1980, c.228. Counsel stated that, under that Act, parties may negotiate changestothescopeofthe collective agreement. It is possible for the parties to bargain for geographical units that are either larger or smaller than in the original certificate; they may add persons who are not employees under the Act; they may subtract persons who are covered under the original certificate; they may merge full time and part time units. Once a collective agreement is negotiated, the wording in the collective agreement determines the scope of the bargaining unit and the force and effect of the labour

relations certificate is spent. In support of this proposition, Counsel relied upon the following cases: Gilbarco Canada Ltd., [1971] O.L.R.B. Rep. Mar. 155; Re Miller et al. and Algoma Steelworkers Credit Union (1974), 1974 CanLII 860 (ON HCJDC), 6 O.R. (2d) 676 (Div. Ct.); Nelson Crushed Stone, [1980] O.L.R.B. Rep. Oct. 1550; Renfrew County and District Board of Health, [1985] O.L.R.B. Rep. Feb. 323; Re Sault Ste. Marie Board of Education and Canadian Union of Public Employees (1974), 5 L.A.C.(2d) 178 (Shime); Burns Meats Ltd., [1984] O.L.R.B. Rep. Aug. 1049.

3 It was theFederations'positionthatunder School Boards and Teachers Collective Negotiations Act, when the branch affiliates choose to bargain together they act as one party. Once this decision has been taken, the remaining provisions of School Boards and Teachers Collective Negotiations Act contemplate that there will be two parties to the process of bargaining and to the collective agreement, namely,theBoard,on one hand, and the affiliates acting together, ontheotherhand. The masthead of the Wentworth collective agreement on behalf of the Board, of the first part, and the elementary teachers, of the second part, is clearly a two-party agreement. Counsel for the Federations submitted that when the two affiliates choose to act together under School Boards and Teachers Collective Negotiations Act, they become a single party.

4 It was Counsel's position that the wording of the collective agreements, not the statutory provisions for negotiations, must also determine the bargaining unit for elementary teachers. The wording of both collective agreements ensures that the bargaining unit is all elementary teachers.

5 A single bargaining unit is also consistent with the bargaining practices for elementary teachers. Counsel submitted that the logical bargaining unit for pay equity purposes is the same unit as used for collective bargaining purposes, that is, all elementary teachers.

6 Counsel further submitted that there was no pay equity purpose to be served by fragmenting the bargaining unit into male and female teachers. The result of creating separate plans for the male teachers and for the female teachers, is a mirror image of each job class in each pay equity plan. This would be a perfect way to maintain the status quo and provide no possible adjustments for teachers. Moreover, it would create a totally artificial bargaining unit which exists nowhere in the real world. Counsel submitted that the purposes of the Pay Equity Act, 1987 willbefulfilledifthe existingbargainingunitofallelementary teachers is used.

THE BOARD'S POSITION

1 The term "bargaining unit" is defined in theLabour Relations Act as a unit of employees appropriate for collective bargaining ss.l(1)(b). Trade unions are certified as the exclusive bargaining agent for employees with a community of interest. The term "bargaining unit" is notusedinthe School Boards and Teachers Collective Negotiations Act. CounselfortheBoardssubmittedthattheterm is not necessary inthat Act becausemembershipisdetermined by law. As all teachers must be statutory membersoftheir branch affiliates, there is no need of a certification process, and exclusive bargaining rights are given by statute to each branch affiliate.

53. Counsel submitted that the process for achieving pay equity depends upon whether there is a bargaining agent, not on the structure of the collective agreement. If the employees are represented, then

the rights and duties under the Act fall to the bargaining agent. He said that each branch affiliate is a bargaining agent and has exclusive the right to represent its members.

2 Counsel for the Boards submitted that whether the Boards or the branch affiliates choose to bargain together,theydo notlosetheir separate identities;the branchaffiliatesdo notlose their rightsor obligations to represent their members (s.5); and separateness of parties is maintained (s. 11). The result of this process may be one or more collective agreements (s.4).

3 Counsel submitted that although the Pay Equity Act, 1987 contemplates two or more employers coming together to negotiate a pay equity plan (s.2), there is no such provision to combine two or more bargaining agents of an employer into a single plan. Therefore, although branch affiliates may chose to bargain pay equity together, the end result must be a separate bargaining unit for each bargaining agent. It was his submission that the Act focuses on who is the bargaining agent and is silent with respect to the negotiating process (ss.6(4), 13(9), 7(2), 9 (2), 14, and 22).

4 It was theBoards'positionthatinbargainingfora collective agreement, each branch affiliate is free to pursue its own self interest, including refusing to continue joint negotiations. Counsel reviewed a lengthy historyoflitigationinthe Courtsand beforethe Ontario HumanRightsCommissionbetweenFWTAO and OPSTF to demonstrate that there was a fundamental dispute over membership in their respective organizations. It was his position that the existence of this fundamental dispute and the separateness of the two organizations are antithetical to the branch affiliates negotiating and being bound by one pay equity plan.

5 The Boards concluded that there must be two pay equity plans for elementary teachers, one for the male teachers, the other for the female teachers. Counsel submitted that one pay equity plan for all elementary teachers would eliminate the logical male comparator for the female elementary classroom teachers, that is, the male elementary classroom teacher.

DECISION

1 Counsel for the Boards submitted that in order to determine the pay equity plan we should look first to who is the bargaining agent as the determination of bargaining agent will also determine the pay equity plan. After considering that possibility, the Tribunal has decided that this approach is not helpful.

2 The Pay Equity Act, 1987 acknowledges that the status of bargaining agent is determined under other statutes (ss.1(1)). Status may be obtained in many ways. A trade union may be certified by the Ontario Labour Relations Board as the exclusive bargaining agent of employees in a unit that the Board deems appropriate for collective bargaining (Labour Relations Act s.5, 6 and 7). The employer and the tradeunionmaynegotiatesuccessive collective agreementswhoseterms substantiallyalterthe scopeofthe original certificate. Once a collective agreement is negotiated, the wording in the collective agreement determines the scope of the bargaining unit and the force and effect of the labour relations certificate is spent. An employer may voluntarily recognize an organization as the exclusive bargaining agent of its employees and may enter into a collective agreement which sets out the unit of employees the agreement covers. Other statutes, such as the Fire Departments Act, R.S.O. 1980, c.164, s.5 or the Police Act,

R.S.O. 1980, c.381, s.29 set out a scheme for collective bargaining and the role of the bargaining agent.

1 There is no necessary unity between bargaining agent and bargaining unit. It is common for one bargaining agent tobethe exclusive bargainingagent formorethanone bargaining unit in an establishment. For example,a bargainingagent mayrepresent both the full time and the part time workers, eachofwhich is a separate bargaining unit. The bargaining agent may also represent workers in the office as well as the plant. Traditionally, those employees are in separate bargaining units. The Pay Equity Act, 1987 isclear that there must be a separate pay equity plan for each bargaining unit (ss.14(1)).

2 The determination of bargaining agent does not necessarily determine the scope of a pay equity plan. Therefore, bargaining unit is an issue whichthe Tribunalmust analyse and determine, since bargaining unit is fundamental to the scope of a pay equity plan.

BARGAINING UNIT

1 The Act specifies that a pay equity plan must be prepared for each bargaining unit in the establishment (ss.14(1)) and that the adjustments to compensation required by a pay equity plan are deemedtobeincorporatedintoandformpartoftherelevantcollectiveagreements(ss.13(10)). "Collective agreement"isdefinedinthe Pay Equity Act, 1987 as "an agreement in writing between an employer and abargainingagentcoveringtermsandconditionsofemployment"(s.1(1)). There must be a match between the pay equity plan and the collective agreement for a bargaining unit. It would not be logical to merge the results of two pay equity plans into one collective agreement. Bargaining unit is not defined in the Act.

2 In determining what is the bargaining unit for elementary teachers, the Tribunal has considered the collective bargaininghistorybetweenthe parties, the relevant collective bargainingstatutes,and the current collective agreements.

3 Counsel for the Boards submitted that bargaining unit for pay equity should be determined by membership in the trade union or organization. This approach is not helpful. On the one hand, there may be employees in a bargaining unit who are not members of the trade union (for example, the Labour Relations Act,, s.43). On the other hand, there may be members of an organization who are not in the bargaining unit. For example, there may be members of a trade union or organization who are not employees. The constitutions of both FWTAO and OPSTF provide for membership in their organizations for persons who are not employees of any school board. Secondly, a person may be a member of FWTAO or OPSTF, and may be an employee of a schoolboard, but maynot be in the bargaining unit if the duties of such a person are other than teaching (Ontario Teachers' Federation v. Metropolitan Separate School Board (1976), 13 O.R. (2d.) 499 (C.A.) at p.501; Peterborough County Board of Education (17 March 1988) (arbitration decisionofK.Burkett)[unreported]atp.21). Finally, a female elementary teacher may be a member of FWTAO pursuant to a by-law of the OTF and a member of OPSTFbythe latter's constitution. The evidence was that she may looktoeitherFWTAOorOPSTFto represent her during the grievance process. In other words, a person may be a member of more than one organization. For all of these reasons, the Tribunal rejects the submission that membership in FWTAO or in OPSTF determines the bargaining unit.

65. The passage of the School Boards and Teachers Collective Negotiations Act in 1975 merely codified the collective bargaining history. That Act sets out a number of possible structures for negotiating collective agreements (s.4). For example, two boards of education may decide to bargain together. When

theychooseto do so, the Act provides that the two boards act jointly as a party (s.4(1)). Another possible structure is for the branch affiliates ofFWTAO and OPSTF to decide to bargain together (s.4(3)). That isadecisionofthebranchaffiliates;theboardof education can play no role in that decision. The Act also provides that the twobranchaffiliatesmaychoosetoact jointly as a party (s.4(1)). Once the two branch affiliates have agreed to bargain together, the remaining provisions of the School Boards and Teachers Collective Negotiations Act areconsistent withatwo partystructure,the employer on one side, and the two affiliates acting jointly on the other.

4 Moreover, the Education Relations Commission has said in OECTA and AEFO v. The Cochrane-Iroquois Falls Roman Catholic Separate School Board at page 2, a case in which the branch affiliates of OECTA and AEFO no longer wished to bargain together:

Since 1977 the School Board has negotiated with the Branch Affiliates through a joint negotiating committee. Each collective agreement over the period has been between the School Board and both Branch Affiliates rather than each individual Branch Affiliate. In short, there has been one set of negotiations and one collective agreement rather than two.

The Commission went on to state, at page 15:

Section11 requiresthe partiesto "negotiateingoodfaithandmakeeveryreasonable effort tomakeandagreementorrenewthe agreement." WebelievethatSection11requiresthe School Board to negotiate with the negotiation team determined by eachBranchAffiliate and that the School Board cannot attempt to dictate the structure of bargaining utilized by the Branch Affiliates. The pressing of such a demand to impass we find to be a violation of the Act.

The branch affiliates have the right to determine the nature and structure of collective bargaining. If they choose to bargain together, the school board is bound by that decision. One collective agreement results from this two-party process.

1 For as long as elementary teachers have negotiated collective agreements with boards of education, thebranchaffiliatesofFWTAOandOPSTF havenegotiatedtogetheronbehalfofallelementaryteachers. Collective agreements have always been ratified by elementary teachers voting in one unit. The result is a single collective agreement which covers all elementary teachers. This pattern of negotiations has been the same at the Wentworth Board, at the Perth Board, and throughout the province. Never have the branchaffiliatesofFWTAO and OPSTF bargained separately; neverhasjoint bargainingresultedinmore than one collective agreement.

2 The School Boards and Teachers Collective Negotiations Act neither defines nor determines the bargaining unit. Because of the combinations and permutations in teacher collective bargaining permitted bythat Act, the onlywayto determine the bargainingunitis to look at the negotiated collective agreement. The results are similar to those under the Labour Relations Act . Once a collective agreement is negotiated, bargaining unit is determined by the words of the collective agreement, not by the labour relations certificate (Labour Relations Act, s.41; Gilbarco Canada Ltd.; Re Miller and Algoma Steelworkers Credit Union).

3 The collective agreements for elementary teachers at the Wentworth Board and at the Perth Board are similar to the collective agreements throughout the province. Each is a single document, signed by the respective board and the branch affiliates. The provisions of each agreement are clear; they cover all elementary teachers; the terms and conditions of employment for male and for female teachers are the same. The Tribunal determines that for both the Wentworth and the Perth Boards of Education there is one collective agreement that covers all elementary teachers at that Board.

4 The purpose of the Pay Equity Act, 1987 is to redress systemic gender discrimination in compensation for work performed by employees in female job classes (ss.4(1)). "Compensation" is defined as "......all payments and benefits paid or provided to or for the benefit of a person ...."(ss.1(1)). As the focus of the Act is compensation, it is logical to define bargaining unit as those employees subject to the compensation practices set out in a collective agreement. Using this determination, the bargaining unit in this case consists of all male and female elementary teachers at each Board. Sucha determination isconsistent withthe negotiation history, with the School Boards and Teachers Collective Negotiations Act, and with the collective agreements for elementary teachers.

BARGAINING AGENT

1 A bargaining agent is responsible for negotiating and maintaining pay equity (ss.14(2) and ss.7(2)). Itisnecessaryto determine whichorganizationhastheseresponsibilitiesunder the Pay Equity Act, 1987. The concept of bargaining agent in the Act determines with whom the employer must bargain pay equity; the determination also provides security for the trade union or organization with respect to the pay equity representation of its members for pay equity purposes.

2 The negotiations for teacher collective agreements are not governed by the Labour Relations Act. To define "bargainingagent"forteachers,wemustexamine the second part ofthe definitionwhichprovides that a bargaining agent includes "an organization representing employees to whom this Act applies where such an organization has exclusive bargaining rights under any other Act, in respect of such employees" (ss.1(1)). Bargaining rights for teachers are determined under the provisions of the School Boards and Teachers Collective Negotiations Act. This latter Act may be of assistance in determining which organization is the bargaining agent for the employees at the Wentworth Board and at the Perth Board.

3 Bargaining for collective agreements for teachers may take many forms. One such form is for the branchaffiliatesof FWTAO and OPSTF to decide to negotiate togetherfora collective agreement which covers all elementary teachers. Once thatdecisionismade,thebranchaffiliatesof FWTAO and OPSTF become one party(School Boards and Teachers Collective Negotiations Act, ss.4(3)). That party has the exclusive bargaining rights for all elementary teachers during these negotiations. This joint structure is preserveduntilthenextroundofcollective bargaining (ss.4(5)). Joint negotiations for the branch affiliates of FWTAO and OPSTF have always taken place at the Wentworth Board, at the Perth Board, and throughout the province.

4 The Tribunal finds that at the Wentworth and Perth Boards, the joint branch affiliates of FWTAO and OPSTF hold exclusive bargaining rights for all elementary teachers and therefore, for the purposes of the Pay Equity Act, 1987, the branch affiliates acting jointly constitute the bargaining agent. Each Board of Education will bargain pay equity with the joint branch affiliates.

5 Should the historical co-operation between FWTAO and OPSTF come apart for pay equity, an application maybe madetothe Tribunalon the basis that there has been a change of circumstances in the establishment (ss.25(2)).

6 There is no reason why the structure for negotiating pay equity for elementary teachers should be anydifferentthanthestructurefornegotiatingacollectiveagreement. The branch affiliates at FWTAO and OPSTF wish to negotiate pay equity jointly. There is nothing in the Pay Equity Act, 1987 which would prohibitthisstructurefor joint bargaining. Similarly,thereisnothinginthis Act whichwould requirea party to a collective agreement to divide into two for pay equity negotiations. In Haldimand-Norfolk (No.3) the Tribunal stated at p. 57:

The law does not seek to disrupt collective bargaining relationships nor to reshape the descriptionofexistingbargainingunits. Just as bargaining agents and employers are bound by other remedial legislation such as the Pension BenefitsAct,1987 and are required to negotiate to conform with new standards of public policy, so too they must meet the requirements of the Pay Equity Act, 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 theAct provides forthe minimumdisruptiontoexistingcollective agreementswhile stillmakingprovisionfor the achievement ofthe legislation'spurpose, the redress of systemic gender discrimination between female and male job classes in an establishment of the employer.

Inthis case, it makessenseforthe same organizationand structurethatnegotiatedthe terms and conditions ofemployment forelementaryteachers to review thosecompensationpracticestoensurecompliancewith the Pay Equity Act, 1987.

1 Secondly, a separate pay equity planformaleandforfemaleelementaryteachers would defeat the objectivesofthe Pay Equity Act, 1987 by artificially removing the male teachers from the bargaining unit. The net effect of such a separation would be to create a female pay equity plan with job classes which perfectly mirror those job classes in the male pay equity plan and therefore, would wrongly eliminate any possible pay adjustments for teachers.

2 Thirdly, it may well be that the female job classesarefairlycompensatedwithrespecttotheirvalue whencomparedtothemale job classes. The issueofvalueisnotbeforetheTribunal. But thePayEquity Act, 1987 does require the male and female job classes to be identified, valued and compared. The divisionof pay equity plans along gender lines will not permit this to happen. The Tribunal findsthatsuch a dual structure of male and female pay equity plans will defeat the purposes of the Act, which provides for a review of the existing compensation practices to redress systemic gender discrimination.

79. Finally, male and female elementary teachersintheCatholicschoolsystemaremembers of a single branch affiliate, OECTA. There is one collective agreement covering all elementary teachers with their board. It is clear that one pay equity plan is required for all male and female elementary teachers in the Catholic school system. Therefore, the female job classes in that bargaining unit will be able to compare to male job classes through the establishment. There may not be any pay adjustments. But the parties will

fulfilthe purpose and intent ofthe Act, namely to value and compare the female job classes. To create two pay equity plans, one for male elementary teachers and one for female elementary teachers in the public school system illustrates how artificial such a structure would be.

3 In conclusion, the Tribunal determines that the Wentworth Board and the Perth Board must each negotiatewiththejoint branchaffiliates,one payequityplanforthe bargainingunitconsistingofallmale and female elementary teachers employed by the respective Boards.

HOW MANY JOB CLASSES ARE THERE FOR ELEMENTARY CLASSROOM TEACHERS?

81. "Job class" is defined in ss.l(1) of the Act as:

those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the samecompensation schedule, salary grade or range of salary rates.

2 The identification of job classes is a fundamental yet preliminary decision in the process of preparing a pay equity plan. The term job class is used throughout the Pay Equity Act, 1987. Section 4 for example, not only sets out the purpose of the Act, but also explains that systemic gender discrimination in compensation is to be identified by undertaking comparisons between each female job class in an establishment and the male job classes in the establishment. As a component part of the negotiated pay equity plan (s.13) the identification of job class must be agreed to by the parties. It is through the use of the concept of job class that discrimination under this Act is to be identified and redressed.

3 The identification of job classes is also a preliminary step. The determination of job classes is one ofthe firststepsto be accomplishedinpayequitybargainingunderthe Act. (CybermedixHealthServices Ltd. (1990), 1 P.E.R. 41).

4 The issue in this case is: how many job classes exist for elementary classroom teachers? The position oftheBoardisthatallelementaryclassroomteachersareinonejobclass. The Federations' position is that there are seven job classes, namely, the seven categories for elementary teachers: D, C, B, Al, A2, A3, and A4. Although the parties made extensive submissions on valuing the work of these categories, neither the system for evaluating the work of teachers, nor the value of teachers' work are issues in this case.

FACTS

85. Persons employed as elementary teachers, whether they teach junior kindergarten or grade 9, must hold an Ontario Teacher's Certificate (Education Act, R.S.O. 1980, c.129 as amended, s.233). The qualifications necessary to obtain such a certificate have changed significantly over time and are set out in regulations and schedules to this Act. Since 1974, to qualify as a teacher, one must complete a university degree and a year of teacher training. When the qualifications changed in 1974, those persons who held a valid teacher's certificate were grandparented, that is, they were allowed to continue teaching although theylackedthenewandhigherqualifications. The teaching profession and the boards of education strongly

encouraged these persons to upgrade their educational qualifications. Today, there are six male and 118 female elementary teachers at the Wentworth Board who fall into this grandparented group.

2 Into the 1950's, the system of compensating teachers varied from board to board. In some cases, ateachernegotiatedherindividualsalarywitha memberof the school board; in other casesteacherswere paid onameritsystem. There was no common agreement as to which qualifications should be recognized and compensated. The teacher federations sought a negotiated compensation process that was systematic. They were opposed to including merit as abasis ofcompensationbecause merit was seen as a subjective measure of teaching performance. Instead, the federations advocated an objective standard for measuring a teacher's performance, based on qualifications and teaching experience. This bargaining position was based, inpart, onaneducationalphilosophywhichassumedthatthe moreeducationand the moreteaching experience a person had, the better teacher he or she would be, and, in part, on the anticipation that this negotiation stance would produce higher compensation for teachers. The teacher federations were successful in persuading school boards to pay teachers on the dual basis of qualifications and teaching experience.

3 In 1958, OSSTF developed a system to evaluate secondary school teachers' qualifications. The system, which divided secondary teachers into four categories based on educational qualifications, was quicklyadoptedby all school boards. Thesystem,whichhasbeenmodifiedseveraltimes,isadministered byOSSTFandevaluatesthequalificationsofallsecondaryschoolteachersintheprovince. Compensation for secondary school teachers is based on this certification system.

4 In 1969, AEFO, OECTA, FWTAO and OPSTF jointly created the Qualifications Evaluation Council of Ontario (QECO) to develop a system to evaluate the teaching qualifications of their members. The QECO systemwasdevelopedbypersons who hadhadextensive experiencewiththeOSSTF certification system and was an outgrowth of the OSSTF certification system. QECO divided teachers into seven categories: D, C, B, Al, A2, A3, and A4 based on their educational qualifications. QECO is complex. Ingeneral, however,teachersinCategoriesD, C, and Bdonothave universitydegrees;thoseincategories A1 through A4 do. Teachers are encouraged to move from one category to another, by acquiring additional approved university or Ministry of Education courses. QECO too has been modified several times,and hasbeengenerally, but notuniversally, accepted byschoolboardsasthe measureofelementary teacher qualifications.

5 Elementary teachers are paid on a two-dimensional salary grid based on qualifications and years of teaching experience. One axis represents the seven QECO categories. A teacher moves across the salary grid when she or he acquires additional approved university or Ministrycoursesinthe requiredorder and combination, and thus moves from one qualification category to another. The other axis represents years of teaching experience. A teacher moves down the grid after completing each year of teaching to a set maximum. The 1987/88 salary grid was:

THE WENTWORTH COUNTY BOARD OF EDUCATION SCHEDULE 'A' - ELEMENTARY SALARY GRID

EFFECTIVE SEPTEMBER 1, 1987 - AUGUST 31, 1988

Years’

Level

Level

Level

Level

Level

Level

Level

Exp.

D

C

B

A1

A2

A3

A4

Sept. 1,

1987

0 16,593 18,099 19,432 23,222 24,445 26,214 28,032 1 17,723 19,274 20,874 24,445 26,231 27,051 29,667 2 18,757 20,309 22,188 25,385 27,549 28,383 31,308 3 19,838 21,435 23,411 26,701 29,052 31,222 32,949 4 20,937 22,657 25,385 28,016 31,496 33,172 34,591 5 22,094 23,786 26,701 28,956 32,438 34,768 36,009 6 24,821 25,290 28,206 30,652 32,438 36,364 37,543 7 26,795 29,711 31,965 33,751 37,605 38,845 8 28,300 31,588 33,092 35,819 39,027 40,443 9 30,177 33,283 36,290 37,888 40,267 41,865 10 35,819 39,396 40,334 41,865 43,693 11 41,744 44,525 46,565 12 & over 46,726 50,637

The grid isnota rectangle;thatis,thereare fewersteps inthe lowercategoriesthaninthe highercategories. The Tribunal heard evidence from the Boards' and from the Federations' witnesses that the grid was negotiatedinthis fashionto encourageteacherstoacquireadditionaleducationalcoursessothattheywould move into a higher category with additional steps for experience.

90. At the Wentworth Board there are elementary classroom teachers in all seven categories, distributed by gender as follows:

Males Females D 121 C 134 B 463

A1 718 A2 2558 A3 3773 A4 85 110

Statistics from the Education Relations Commission show a similar distribution by category of male and female elementary teachers in each school board throughout the province. These statistics also show that female elementaryteachersworkingfull-time earn84% ofmale elementaryteachersalsoworkingfull-time. A portion of this gap may be explained by the fact that there are more men than women teachers in positions of added responsibility. Some portion of the gap is attributable to the distribution of men and women in the seven categories.

1 It was the position of the Wentworth Board and of OSSTF that the system of compensation treats male and female teachers the same. The fact that female elementary teachers earn less than male elementaryteachersand are found inthe lower categories out ofproportionto their presenceatthe Board, is not as a result of discrimination. There may be many reasons for this distribution, including problems in employment equity. Counsel submitted that the grid, which has been agreed to by the Board and the Federations for many years, should be left untouched by pay equity.

2 Counsel for the Federations submitted that this system of compensation is discriminatory, namely it has had an adverse impact on female elementary teachers who earn less than men and are found, in disproportionate numbers, at the bottom of the grid. Counsel relied on the analysis of discrimination in Action Travail des Femmes v. C.N.R., 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114 at p.1139. It was their position that the Pay Equity Act, 1987 wasenactedto redress systemic discriminationincompensation(ss.4(1)), and that job classes should be determined in accordance with the goals of the legislation.

3 The purpose of this Act is to redress systemic gender discrimination in compensation for work performedbyemployeesinfemalejobclasses(ss.4(1)). TheAct requiresemployersandbargainingagents to jointly review the present system for valuing work using the criteria in the Act and to agree upon the adjustmentsrequired by thestatuteinordertoachievepayequity(ss.7(1)and14(2)). Therefore, both the Wentworth Board and the Federations must review the existing system for valuing teachers to ensure that it meets the requirements of the Act. Gender discrimination in compensation will not necessarily be addressed by treating male and female teachers the same. To achieve gender equality, the parties must considerthe impact of the compensation practice on male and femaleelementaryteachers. The Supreme Court ofCanada stated thatdiscriminationisto includethe impactofpoliciesand practicesin the following decisions: Andrews v. Law Society of British Columbia, 1989 CanLII 111 (SCC), [1989] 1 S.C. R. 141 at p.164, 165; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 at p.347.

4 The determination of job class must be consistent with the purpose of the Pay Equity Act, 1987. The parties must value the work of the male and the female job classes. In order to do that, the parties mustnegotiateandendeavourtoagreeonthegender-neutralcomparisonsystemtobeused. The outcome of this process may be no adjustments for the female job classes. In other words, the present system of valuing the work of elementary teachers may meet the requirements of this Act. Nonetheless, the Act, requires the parties to review the present system.

95. The four criteria of job class are:

(i) similar duties and responsibilities

(ii) require similar qualifications

(iii) are filled by similar recruiting procedures and

(iv) have the same compensation schedule, salary grade or range of salary rates.

In order to constitute a job class, positions in an establishment must meet all four criteria. The Tribunal is led to this conclusion for the following reasons. First, the use of the conjunctive "and" in the definition indicates that the language of the definition was meant to be inclusive. Secondly, each of the four criteria listed above captures very different aspects of work. Taken together, it is clear that the Legislature intended that each of these four measures must be the same or similar for a group of positions in order for that group of positions to be treated as one job class under the Act. Thirdly, this conclusion is supported by subsection 1(6) of the Act. That section provides that if a position is unique because of its duties, responsibilities, qualifications, recruiting procedures or compensation schedule, salary grade or range of salary rates, then it may constitute a job class by itself. Thus, subsection 1(6) means that a difference in any one of these four measures justifies the placing of a position in a different job class, even if the result will be a job class consisting of only one position. Therefore, all four criteria must be used to determine job class.

1 The Board's first position was that all elementary classroom teachers occupy one position. Counsel submitted that vacant teaching positions are advertised for and filled by teachers. The compensation paid totheindividualteacherdependsuponhisorherqualificationsandteachingexperience. Qualifications and teachingexperiencearecharacteristicsoftheindividualteacher,notoftheposition. Counsel submitted that it was not necessary to consider the four criteria of job class as all teachers occupy one position.

2 The Tribunal did not find this analysis helpful. The Act does not define position, but it does define job class. Job class is fundamental to the Act, because it is the unit contemplated by the Act forcomparing thevalueofmale and female work. Therefore, the issuefortheTribunalistodeterminethejobclassesfor elementary classroom teachers.

3 The Act defines job class as consisting of one or more positions, where those positions are similar in the manner delineated by the legislation. Position according to this definition, is a subset of the larger conceptofjobclass. It follows therefore, that a position must be the same size or smaller than a job class and must have similar attributes. Put another way, whatever definitionofpositionis ultimately adopted, it can never result in a position being larger than a job class nor in having different attributes. While a job class may include one or more positions, a position may not include more than one job class.

4 What allows positions to be grouped together in a job class is precisely the similarity that exists between them in respect of each of the four criteria. To propose a definition of position which is broader inscope than the definition of job class is to suggest that considerations ofsimilarityhave alesser role to play than the statute demands. The legislation clearly provides that to constitute a job class, positions must exhibit similarity within and between the four criteria listed in the definition.

5 If the Legislature had intended to end the analysis of job class at the word "position", the definition wouldbeverydifferent. For example, it might have said "a job class consists of similar positions". Instead, the definition of job class continues on to provide four separate criteria which must be considered in determiningwhat constitutes a job class. In essence, theBoarddefinedpositionusingonlythecriterionof similar duties and responsibilities. In doing so, the Board read out of the definition of position the remaining three criteria, which is not right. It is the Tribunal's decision that positions must also meet all four criteria for job class as set out in subsection 1(1) of the Act. That is, if one or more of the criteria are different, the positions are in different job classes.

101. The decision of Mr. Dudar analyzes the workplace in terms of the functions performed. He defines position in an organization as the same work. That is, position is defined solely in terms of duties and

responsibilities. His decision finds that distinctions in pay for elementary teachers are based on the attributes of the individuals who perform the work. The Tribunal disagrees with this analysis.

6 We agree that if the duties and responsibilities are different, then the base units of work, classroom teachers, are not in the same job class. We do not agree that the analysis of the base unit of work stops if the duties and responsibilities of classroom teachers are the same. Pay equity concerns compensation. If the base unit of work is compensated differently depending on qualifications, recruiting practices, or compensation schedule, salary grade or range of salary rates, then those base units of work must be in differentjobclassesevenifthedutiesand responsibilities are identical. Whether or notclassroomteacher is the base unit of work, the Tribunal must still consider whether classroom teachers are compensated based ondifferent qualifications,whethertheyarerecruited by similiar procedures, and whethertheyhave the same compensation schedule, salary grade, or range of salary rates. The analysis of the work performed does not stop at duties and responsibilities.

7 Therefore, the Tribunal must consider whether elementary classroom teachers meet the four criteria. There is agreement by the parties that all elementary classroom teachers have similar duties and responsibilities, namely, teaching. There is also agreement that elementary teaching positions are filled by similar recruiting procedures. Moreover, the evidence is that in recruiting, the Boards seek the best qualified teacher, that is, the teacher with the best educational qualifications and teaching experience. This is consistent with the philosophy of the education profession. The dispute amongst the parties is whether teachers require similar qualifications and/or have the same compensationschedule,salary grade or range of salary rates.

QUALIFICATIONS

The Board's position:

104. It was the Board'spositionthatallelementaryclassroomteachersmusthavethesamequalification to teach, namely, an Ontario Teacher's Certificate. The Board said that all teachers are under an obligation tocontinuallyupdatetheirprofessionalqualifications. Teachers are then paid on the basis of their individual qualifications. Counsel submitted that as pay equity was enacted to evaluate positions, not individuals, the Ontario Teacher's Certificate should be used as the qualifications requirement for classroom teachers.

The Federations' Position:

105. It was the Federations' position that, for the purposes of compensation, elementary classroom teachers are divided into seven categories based on their educational qualifications. Therefore, there are seven job classes for these teachers.

Decision

106. The Tribunal's decision is that elementary classroom teachers are divided into seven job classes. All elementary classroom teachers do require as a minimum anOntarioTeacher'sCertificate. This is the same minimum requirement for secondary school teachers, for principals, for vice-principals, and for

consultants. Nonetheless, it is agreed that these latter teachers are not in the same job class as elementary classroom teachers. In other words, the requirement of an Ontario Teaching Certificate is merely a minimum, but is not sufficiently specific to determine the job classes for elementary classroom teachers.

2 The purpose of the Pay Equity Act, 1987 is to redress systemic discrimination in compensation. Therefore,indefiningjob class,the Tribunalconsideredthatincompensatingteachers,teachersaredivided by educational qualifications. Teachers in one category require different educational qualifications than those teachers in another category. The Federations and the Board have agreed that the differences in qualifications are sufficient to justify differencesincompensation. A teacher can move from one category to another only if she or he acquires the QECO specified courses for that category. The parties have negotiated a collective agreement which adopts the seven QECO categories and which provides that if a teacher moves to a new category, she or he will receive additionalcompensation. Wendy Matthews, the president of the Wentworth Women Teachers' Association, testified that she jumpedfromCategoryBto Category A3 whenshecompletedheruniversitydegree. The categories are distinct; progression through the categories is neither linear nor continuous.

3 The Tribunal accepts that all elementary teachers have a professional obligation to continue their growthanddevelopmentthroughouttheirteachingcareer. But teachers in Category A4 are under the same obligationasthoseteachersinCategoryD. However, there is no obligation on a teacher to move from one category to another. Teachers can and do spend their entire teaching career in Category D. Moreover, this obligation on teachers is no different than similiar obligations on employees in other professions and occupations.

4 WedisagreewithMr.Dudar'sdecisionwhichstatesthatindeterminingjobclass,itisinappropriate to consider qualifications, if qualifications do not relate to different work. Again, this analysis of job class stops at duties and responsibilities, ignoring the other three criteria. Furthermore, these parties have negotiateda collective agreement whichadopts the educationalphilosophythatthemoreeducationand the more experience a person has, the better teacher she or he will be. This philosophy is reflected in the agreementthatqualificationsandexperienceprovide an objective standard ofteachingperformance. This philosophy is also reflected in the negotiated compensation practices which pay more for higher qualifications and more experience.

5 The seven negotiated categories require different qualifications. Therefore, elementary classroom teachers are divided into seven job classes based on qualifications.

COMPENSATION

The Board's Position:

111. Counsel for the Board submitted that the salary grid for elementary teachers is a compensation schedule and that all elementary teachers have the same compensation schedule.

The Federations' Position:

112. It was the Federations' position that there are seven ranges of salary rates, one for each QECO category.

Decision

1 The fourth criterion for job class is "... and have the same compensation schedule, salary grade or range of salary rates". The terms "salary grade or range of salary rates" were added after first reading of Bill 154 and incorporated into the Pay Equity Act, 1987. The words were clearly meant to provide alternate methods for examining the compensation factor in the job class definition. If the compensation schedule or the salary gradeor the range ofsalaryratesforpositions are different,thenthe last component of the definition of job class is not met.

2 It is the Tribunal's decision that there are the following seven ranges of salary rates to compensate elementary teachers in the Wentworth Board:

Category D

$16,593 to $24,821 in 6 steps

Category C

$18,099 to $30,177 in 9 steps

Category B

$19,432 to $35,819 in 10 steps

Category A1

$23,222 to $39,396 in 10 steps

Category A2

$24,445 to $41,744 in 11 steps

Category A3

$26,214 to $46,726 in 12 steps

Category A4

$28,032 to $50,637 in 12 steps

Each category from D to A4 has its own range of salary rates. Each category has its own minimum and maximumrateandthenumberofstepsto maximum is specific to each category. All DCategoryteachers are paid within one range of salary rates, as are all C Category teachers, and so on. The ranges of salary rates and the number of steps to maximum differ from category to category. The grid is not continuous. A teacher moves from one range ofsalaryratesintoanotherrange onlyifshe or he acquires the additional educational qualifications in order to change QECO categories. In addition, teachers can and do remain in the same range of salary rates for their entire teaching career.

1 The parties have negotiated a collective agreement which provides that a teacher will move from one range ofsalary rates toanotherrange ofsalaryrateswhenthatteacheracquiresthe requiredadditional educational qualifications. We disagree with thedecisionofMr.Dudarthat movement from one range to another"requiresthefiatofmanagement". In this case, the employer has chosen to bargain this issue. That bargain is set out in articles 9 and 10 and in Schedule"A"tothecollectiveagreement. The bargain is, that a teacher moves to a different range of salary rates when that teacher changes categories.

2 For compensation purposes, elementary teachers do not have the same range of salary rates. Therefore, elementary classroom teachers are in seven different job classes.

JOB CLASS

117. As both the qualifications and the ranges of salary rates differ from category to category, there cannot be one jobclassforelementaryclassroom teachers. As all four criteria are met within each of the seven categories into which elementary teachers are divided for compensation purposes, there are seven job classes for elementary classroom teachers.

ORDER

1 The Tribunal confirms that part of the Order of the Review Officer dated June 2, 1989 which directed that there are seven job classes for elementary classroom teachers at the Wentworth County Board of Education.

2 The Tribunal revokes that part of the Order of the Review Officer dated June 2, 1989 which ordered the preparation of two pay equity plans, one for the male and one for the female elementary teachersattheWentworth County Board of Education. The Tribunaldeclaresthattheremustbeonepay equity plan for elementary teachers at the Wentworth County Board of Education.

3 The Tribunal orders the Wentworth County Board of Education to negotiate with the Wentworth Women Teachers'Associationand the Ontario Public School Teachers' Federation, Wentworth District, acting jointly. The Tribunal orders both parties to negotiate in good faith and endeavour to agree on one pay equity plan for all elementary teachers employed by the Board.

4 The Tribunal revokes the Order of the Review Officer dated June 16, 1989 with respect to the Perth County Board of Education. The Tribunal declares that there must be one pay equity plan for elementary teachers at the Perth County Board of Education.

5 The Tribunal orders the Perth County Board of Education to negotiate with the Perth County WomenTeachers'Associationand the Ontario Public School Teachers' Federation, PerthDistrict,acting jointly. The Tribunal orders both parties to negotiate in good faith and endeavour to agree on one pay equity plan for all elementary teachers employed by the Board.

DECISION OF TRIBUNAL MEMBER S. GENGE, DATED JANUARY 22, 1990

1 I concur with the decision of the Chair on the issues of the number of pay equity plans required and the job classes for elementary teachers.

2 I dissent from the decision of the Chair on the question of the participation of the Ontario Secondary School Teachers' Federation in this hearing.

3 As indicated on September 18, 1989 when the oral ruling on this question was given, I agreed with themajorityofthepanelthat OSSTF could not be addedasapartytotheproceedings. However, I came to this conclusionfordifferent reasons.Subsection32(1) ofthe PayEquityAct,1987 clearlyspecifieswho the parties to a proceeding before the Pay Equity Hearings Tribunalshallbe. They are the employer, the objector or complainant and the bargaining agent, if the pay equity plan relates to a bargaining unit. This sectionofthe Act is consistent withotherprovisions ofthe Act inthatitnamesthosepersons orentitiesthat have been identified throughout the Act as having rights and obligations under the Act, and are in the best positiontocarryout the statutorypurposeofthe Act. Subsection32(1) should be construedso thatparties to proceedings before the Tribunal are limited to those listed. Clearly, OSSTF does not fall into any of these categories.

4. It isnotclearthatsection5ofthe Statutory Powers Procedure Act would allowthe Tribunalto add parties. Section 5 provides:

The partiesto any proceedings shall be the persons specified aspartiesbyor underthe statute under which the proceedings ariseor, ifnotso specified,persons entitledby law to be parties to the proceedings.

4 One meaning may be simply that anyone specified by the legislation cannot be denied status as a party and that only if the legislation does not specify, does the issue of"persons entitled by law" come into play.

5 I disagree with the analysis provided in the Chair's decision of MacCosham Van Lines (Canada) Co. Ltd. v. Minister of Transportation and Communications et al. (1988),1988 CanLII 4728 (ON HCJ), 66O.R(2d)198(Div. Ct.). Ido notagree that the use of the phrase "the only parties"inthe Public Commercial Vehicles Act, which wasunderconsiderationinthatcase,isas significant as the Chair suggests. Itisnotablethatthe Statutory Powers Procedure Act does not require such specific language as the "only" parties; rather, it directs us to look at "the persons specified as parties by or under the statute". Again, subsection 32(1) is specific about who may be parties in proceedings before the Pay Equity Hearings Tribunal.

6 In addition, I disagree that the decision of the Divisional Court in Re Federation of Women Teachers' Associations of Ontario and Ontario Human Rights Commission et al. (1988), 1988 CanLII 4794 (ON HCJ), 67 O. R. (2d), 492 (Div.Ct.) provides any assistance in determining an interpretation of section 5 of the Statutory Powers Procedure Act. In that case, the Court held that regardless of whether FWTAO was granted status to appealundersubsection38(2)(d) ofthe Human Rights Code or undersection5 ofthe Statutory Powers Procedure Act, their rights ofappealwerepreserved. In other words, the Court did not directly analyze section 5 of the Statutory Powers Procedure Act, as it was unnecessary to do so in that case.

7 The Chair's decision draws a distinction between "party" and "non-party intervenor". It is not clear however what the difference between the two actually is. Nevertheless, if the Chair's decision is right and section 5 of the Statutory Powers Procedure Act or subsection 29(2)(b) of the Pay Equity Act, 1987 allow added parties or added intervenors, I am of the opinion that OSSTF's application for status would still fail on the proposed tests for non-party intervenor.

8 The Chair addresses the issue of participation in terms of several specific questions. Before examining those questions it is useful to look at the issues in this particular case and at the purpose and structure of the Pay EquityAct,1987. This case concerns the definition of job class for elementary teachers employed by the Wentworth School Board. It involves a dispute between the Teachers' Federations and the Wentworth School Board. That is, it isadisputebetweentwoparties. It is not an issue of general public interest. The Act establishes a series of rights and obligations on employers, employees and unions; as in this case, disputes under this Act willprimarilyinvolve two partieswho are attemptingto fulfiltheir statutory responsibilities. As noted earlier, subsection 32(1) of the Act mirrors this reality. Within this framework, there is no room for an intervenor whose concerns are indirect.

WHAT IS THE NATURE AND SCOPE OF THE INTERVENOR'S CONCERN IN THESE PROCEEDINGS?

1 OSSTF's concern with the issue of job class is primarily a concern with precedent. They argued that the definition of job class in this case could have animpactonthe definitionofjobclassforsecondary school teachers employed by the Wentworth Board. The possible precedential value of the decision of the Tribunal concerning the definition of job class under the Act maybe ofinterestto manyinthe province. However, a concern with precedent is not sufficient to allow participation in a hearing.

2 Furthermore, the scheme of the Pay Equity Act, 1987 is such that the OSSTF and the Wentworth Board of Education are free to negotiate their own definition ofjobclassforthe purposes of a pay equity plan for secondaryschoolteachersin Wentworth. Section 14 of the Act provides the mechanism for the negotiation and execution of a payequityplanbetweenanemployerandabargainingagent. The decision in this case will not infringe upon OSSTF's rights in this regard.

WILL THE PARTICIPATION OF THE INTERVENOR ASSIST THE TRIBUNAL IN REACHINGITS DECISIONS? WILLTHEINTERVENOR BRINGTOTHEPROCEEDING ANEXPERTISECONCERNINGTHEPOLICY, FACTUALORLEGALISSUESIN DISPUTE WHICH IS DIFFERENT THAN THAT OF THE PARTIES?

12. The status of friend of the Tribunal is not appropriate for OSSTF in this case. OSSTF did not put itselfforwardasanobjectiveexpertontheissueofelementaryjobclasses. On the contrary, they indicated that they would be supporting the position of the Wentworth County Board of Education and that they wanted to participate to defend the perceived, interests of their membership. While they argued that they hadsome expertisewiththe originaldevelopment of a grid system of payment for teachers,their expertise relates to the history of the grid system for the secondarypanel. This case concerns elementary teachers. Insofar as historical developments might berelevant,itiselementaryteachergrids with which the Tribunal must be concerned.

ARE THERE OTHER MECHANISMS FOR DEALING WITH THE INTERVENOR'S CONCERNS SUCH AS THE FILING OF INDEPENDENT COMPLAINTS; THE CONSOLIDATION OF HEARINGS; APPEARING AS A WITNESS FOR ONE OF THE PARTIES?

13. The appropriate mechanism for OSSTF to bring its concern with the definition of job class for the secondary school teachers which it represents is through anindependent complaint to the Tribunal, failing agreementbetweenOSSTF andtheWentworthBoardofEducation,or as a witness if eitherpartywishes them to assist in clarifying or advancing their case.

WHAT PREJUDICE WILL THERE BE TO THE PARTIES IF THE INTERVENOR IS PERMITTED TO PARTICIPATE:

(I) WILL THE INTERVENTION WIDEN THE ISSUES IN DISPUTE?

(II) WILLTHEINTERVENTION DELAYAN EXPEDITIOUS DETERMINATION OF THE DISPUTE?

(III) WILL THE INTERVENTION UNREASONABLY ADD TO THE COST OF THE PROCEEDINGS FOR THE PARTIES?

1 Allowing OSSTF to participate in these hearings would result in prejudice to the elementary Teachers' Federations in the following ways. OSSTF's participation would by definition, and even given the limitations proposed by the majority, widen the issues in dispute. This case concerns the question of the definition of job class for the elementary panel. The OSSTF can only deal with the secondary panel, with which we are not concerned.

2 The proceedings would be delayed to some extent because of additional witnesses, additional time for cross-examination and for summary submissions. Costs would go up accordingly.

3 However, the most serious prejudice would result from the fact that the Teachers' Federations would besubjectedtoadoubledefenceoftheirposition. Both OSSTF and the Wentworth Board of Education have taken the same position on the question of the definition of job class for elementary teachers. Teachers' Federations then would be put in the position of having to defend before two sets of counsel leading evidence and making submissions in support of the same proposition.

4 For these three reasons, the participation of OSSTF would prejudice the position of the elementary Teachers' Federations in this case.

5 Insummarythen,IwouldnothaveallowedtheOntario Secondary School Teachers' Federation to participate in this hearing as they meet neither the standards for party status nor the criteria proposed by the Chair for non-party intervenor status.

DECISION OF TRIBUNAL MEMBER D. DUDAR, DATED JANUARY 22, 1990, AS AMENDED BYDECISIONOFTRIBUNALMEMBER D. DUDAR, DATED JANUARY 24, 1990

INTERVENTION

1 The Tribunal issued the ruling concerning the request by OSSTF to participate in the hearing, as outlined in the majority decision. I do not agree withoneaspectofthe reasons of the Chair, and, further, I disagree with one objection raised by Ms. Genge in her dissenting decision on this matter.

2 As set out in the reasons of the Chair, there are two lines of argument on the question of the admission of an entity as a party to a hearing: pursuant to ss.32(1) of the Pay Equity Act, 1987, S.O. 1987, c.34; or pursuant to s.5 of the Statutory Powers Procedure Act, R.S.O. 1980, c.484.

3. IacceptthefindingoftheChairthatinthiscase,OSSTFisnotapartytotheseproceedingsno matter which of the above two provisions are relied upon. Given that the result is the same in any event, it was

unnecessaryinmyviewtomakeanyfinaldeterminationofthescope of those provisions. I prefer to leave the question of the scope of the Tribunal's authority to add parties to another day.

3 Nor, however, do I accept the "double defence" argument by Ms. Genge to reject the requested participation. It is implicit in any request for participation that the position for or against the opposing view will be buttressed. Were we to accept the "double defence" argument, we would essentially foreclose the possibility of any intervention, regardless how appropriate.

5. On balance, then, I agreed to allow OSSTF's participation onthelimitedbasisoutlined in the ruling.

THE ISSUES

4 The questions in this case are the number of pay equity plans required for the branch affiliates representing the elementary school teachers in the Wentworth and Perth Boards of Education, and. the number of job classes for elementary classroom teachers.

5 The majority finds that there is one bargaining unit at each Board, comprising the members of both OPSTF and FWTAO. Further, they find that there are seven job classes for elementary classroom teachers.

6 At the outset of this section, I wish to deal withageneralobjection. The majority write (at para. 84) that "neither the system for evaluating the work of teachers, nor the value of teachers' work are issues in this case." Further, (at para. 93), they write "Gender discrimination in compensation will not necessarily be addressed by treating male and female teachers the same. To achieve gender equality, the parties must considerthe impactofthe compensationsystemonmaleandfemaleelementaryteachers .”(emphasismine)

7 I do not agree. The Act mandates that the employer (jointly with the bargaining agent, where there is one) review the impact of compensation practices on job classes. Section 4 of the Act states

4(1) The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes.

(2) Systemic gender discrimination in compensation shall be identified by undertaking comparisons betweeneachfemalejob classinanestablishment and the male jobclasses in the establishment in terms of compensation and in terms of the value of the work performed.

1 The process prescribed by the Pay Equity Act, 1987 is to subject existing compensation practices to a new test, that of gender neutrality. Where it is found that pay inequities based on gender exist, theAct requires adjustments to pay rates. The Act, however, does not require wholesale reorganization or redesign of the enterprise for the purpose of proving that inequities exist. It provides a mechanism for determining the extent of any such inequities. Only when the mechanism is applied to existing practices is the employer required to act; the employer is not required to contort itself into hypothetical or wished-for structures that might serve a goal of a greater adjustment.

2 I am concerned that the majority is requiring of the employer just such a re-construction. This concern is further fuelled by-the majority's reference to Andrews v. Law Society of British Columbia, 1989 CanLII 111 (SCC), [1989] 1 S.C.R. 141 and R v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 pointing for a need to be attentive to the outcome or result rather than the determination of a preliminary question such as position orjobclass. However much we might like to see the lowest paid teacher level compared with (anticipated) higher paid-lower or equally valued male job classes, we cannot require this if they are not properly a job class. Only once we know what is the job class can we determine whether it is a male or female job class (or neither). Only once we know whether female and male job classes exist is the employer required to evaluate and compare jobs. The desired comparisons do not determine which structures are job classes; the structures determine the comparisons.

JOB CLASSES

12. The definition of job class in the Act is

those positions in an establishment that have similar duties and responsibilities, require similar qualifications, are filled by similar recruiting practices, and have the same compensation schedule, salary grade or range of salary rates

2 The majority finds that "positions in an establishment must also meet all four criteria.” (para. 95) I find this approach problematic for two reasons. First, it is a recognized principle of interpretation that meaning must be given to the Legislature's words when considering any given provision. By failing to ascribe meaning to the word "positions", the majority has skirted its mandate. Secondly, by not defining "position", the majority is unacceptably vague about what it is that is to be compared.

3 I agree with the majority that positions cannot be broader in scope than a job class. I agree, as well, that positions, once defined, will exhibit the four characteristics for grouping positions in job classes. This does not lead me to conclude, however, that the four criteria determine position. Were this so, it seems that positions will always be equalinsize to jobclass,whichseems to be the extra-ordinary situation permitted by ss.1(6). Therefore, I find reliance on the four criteria to determine position as incorrect.

4 The Board first proposed that all teachers hold one position. It did so on the basis that all teachers perform the same work. I find this argument convincing for several reasons.

5 First, the basic thrust of the Act isto ensurethatworkperformedpredominantlybywomen, ofequal value to, though different from work performed predominantly by men, is to be paid equally (under other specified conditions). Thus, it is the functions that are performed which are to be evaluated, then compensated where appropriate. This process, when it is considered, makes eminent sense, for it accords with the way in which the workplace is organized, that is, by positions. The Act contemplates subjecting the currentstructureofthe workplace (positions) to scrutiny along the lines of compensation. It does not require employers to reorganize their operations. To ensure that comparisons are not unnecessarily identifiedwithindividuals,the Act providesafurtherlevelofprotectionorisolationbyaggregatingpositions into job classes.

6 Secondly, the approach which gives meaning to "positions" accords with the legislative regime governing teachers. The position of teacher is defined in the Education Act, R.S.O. 1980, c.129 as amended, the School Board and Teachers Collective Negotiations Act, R.S.O. 1980, c.464, the Teaching Profession Act, R.S.O. 1980, c.495 and in the regulations promulgated under these statutes. Ineachcase,theposition of teacher is defined indivisibly in relation to the duties performed. All teachers are statutorily required to accept the same duties and responsibilities. In defining "teacher", no distinction isdrawninthelegislationbetweenteachersoccupyingdifferentQECO categories,noramongteacherswho have obtained Additional Qualifications ("AQs") granted by the Ministry of Education. Similarly, the positions of Principal, Vice Principal, Coordinator, and Consultant are also statutorily defined. These positions of added responsibility ("PARs") are distinguished from that of "teacher", on the basis of added responsibilities which inhere in these positions. I note that Principals, Vice Principals, Coordinators, Consultants and Assistants to the Unit Principal are all paid a premium for their additional responsibility.

7 Thirdly, the parties have conducted themselves in a manner which strongly suggests that they accept that elementary teachers constitute one position. For instance, the Federations accept that PARs each constituteseparateand distinct job classes. Principals are paid at a rate determined bytheirQECOlevel (in this case, there are Principals in levels B, A3 and A4) plus a premium for their additional responsibility. Other PARs are similarly found at the various QECO levels. The parties did not offer an explanation for this. It would seem however, that the parties have agreed to these job classes on the basis that they consist of different positions, in turn distinguished on the basis of different work performed and not QECO levels. Given this agreement, it seems inconsistent now to request that the question of job class for teachers not be determined in the same fashion, that is on the basis of position.

8 The parties have also treated teacher as a position during collective bargaining. The collective agreement treats teachers in exactly the same fashion, regardless of their QECO classification. Hiring, advancement, benefits, seniority, and redundancy are all independent of QECO classification, while pay reflects QECO level and experience.

9In the alternative, if one accepts that there are various positions for teachers, I find in any event, that the teachers constitute one job class. As there was no dispute as to the similarity of the duties and responsibilities, nor the similarity of recruitment procedures, I will confine my remarks to the questions of compensation and qualification.

Qualifications

1 The majority has found that the seven QECO levels are sufficiently dissimilar from one another in terms of qualifications that each should correspond to a separate job class. I disagree with this conclusion for several reasons.

2 First, the evidence in this case indicates that requirement for teaching is an Ontario Teacher's Certificate ("OTC"). Individuals are hired solely on the basis of having obtained an OTC, and thereafter, within four months of beginning work, their compensation may be adjusted in order to accord with their QECO classification.

3 The majority finds, however, that the fact that teachers are required to have an OTC is not sufficiently distinctive to identify the position of teacher. They rely on the fact that all PARs are required to hold the OTC. I do not find this argument persuasive because the PARs also require qualifications in addition to the OTC which clearly distinguish the PARS from "teachers".

4 I am supported in this view by the following additional consideration. Certain specialist teachers are required to hold AQs in order to perform in special assignments such as Special Education, English as a Second Language, Music, and Guidance. The QECO levels parallel the AQ regime, .but are not exactly correlative. Yet the Federations agree that there are no separate job classes for these specialty teachers, while proposing distinctions along the line of QECO levels which do not distinguish based on the work performed.

5 Secondly, I note that the different QECO levels are distinguished solely on the basis of the number of Ministry approved or university courses that one has obtained over and above the OTC. Each level builds on the last. A teacher beginning in level D, by taking an appropriate selection of courses, can move from that level through to level A4. Progression through the grid is therefore continuous and cumulative. I am not prepared to hold thatthe merenumberofadditionalvoluntarycoursespassedis a sufficient basis upon which to designate a different job class. The example of Ms Matthews, cited by the majority to illustrate that the QECO levels are not continuous, is not helpful. The example illustrates, simply, Ms Matthews' particular selection of courses, and nothing about the grid itself. The example does nothing to show that the levels are not a series of points along a continuum.

6 Thirdly, and more fundamentally, I think that it is inappropriate to talk about qualifications as distinctive if those qualifications do not relate to different work. Indeed, in this case, as mentioned above, there is no distinction among teachers in hiring, work assignment, or redundancy, based on QECO evaluation. Instead, qualifications parallel characteristics of individual teachers. The purpose of the grid system is to provide incentive forself-improvement and to eliminatethe exerciseofdiscretionin evaluating individual performance or merit. To focus now on the steps in the grid system is to focus on individual qualifications and not on the work itself. I note that the majority has focused on "whether elementary classroomteachers" meet the four criteria (para. 102); theyrelyonthe claimthat"teachersinone category require different educational qualifications than those teachers in another category." (para. 107.)

7 Taken from another perspective, the majority rely on the proposition that teachers in the various levels are required to have different qualifications. To what end? There is agreement that all teachers performthe same work. No teacher is requiredto have any greater or lesser qualifications. It is expected thatA4 teacherswillperformthe workbetter (a merit consideration),butnotwithstanding,alevelDteacher is required to do all the same things. Parents, students, and administrators are entitled to expect competent performance of all tasks by a teacher at any level. Therefore, the requirement to do the work demanded is the same for all teachers.

8 Therefore, I find that all teachers possess similar qualifications.

Compensation

1 The majority finds that the fourth criterion, "same compensation schedule, salary grade or range of salaryrates"ismadeofthreeseparatecomponents. They determine also that if distinctions are found based upon any of the three, the criterion will not be met. This demonstrates the fundamental difference in approachesbetweenthemajorityviewandmine. Essentially, since the majority does not define "positions", they start with an undefined entity, then pare away pieces until they find those "parts" of the organization whichseemsufficientlysimilartobe grouped togetherinajobclass. This process seems highly susceptible toarbitrary decision making, and may be too easily manipulated forpurposesunrelatedtopayequity. By contrast, I propose that the exercise is to start by identifying positions, then applying the four criteria to determine which position or positions should be aggregated into a unit to be known as job class.

2 This approach is also supported by the language ofthe definition, which provides that a job class is "those positions in an establishment that have similar...". The approach is including, not excluding. As the majority have pointed out, for positions to be included together in a job class, they must meet all four criteria. By applying rules of construction and grammar relating to the use of "and" and "or", the fourth criterionincludesthreepossibilities,andmeetinganyoneofthemsatisfiesthetest. The majority’s reference to ss.1(6) (one member job classes), which relies on excluding language, further supports my view.

3 As a consequence of the first approach, the majority is led to conclude "if the compensation schedule or the salary grade or the range of salary rates for positions are different, then the last component of the definition ofjobclassisnotmet."(para.113.) Against this, I conclude that if two positions are on the same compensation schedule, or the same salary grade or the same range of rates, then the positions can be grouped together in one job class (given that they meet the other three criteria).

4 This does not lead to unnecessarily large groupings of positions which are susceptible to masking systemic discrimination. Taken together with the other criteria for job class, this criterion ensures that those jobs which are normally grouped together in the employer's organization are subjected to evaluation to ensure equitable compensation. This, again, is in keeping with the general, thrust of the legislation to apply a new yardstick to existing operations to ensure equity, and does not require artificial division of the operation.

5 It has been the constant view of these parties to consider the salary grid as a single schedule, not a compilation of seven schedules. Indeed, Schedule 'A' to the collective agreement is referred to as "The Elementary Grid". The various levels are not negotiated separately. In negotiations for the 1988-89 teaching year, percentage increases were negotiated across the board. The relationship between steps on the salarygrid (Dmaximumas apercentage ofA4 maximum,Cmaximumas a percentage ofA4 maximum, etc.) is the same in the current collective agreement as it in 1969. This suggests that no negotiations have attempted to deal with the levels as distinctive steps.

6 This is consistent with the original approach developed by OSSTF. It was their expressed intention, subsequently adopted by the Federations, to develop, propose, negotiate and defend a singular approach to salaries for all teachers.

7 The creation of salary grades is a way to recognize hierarchical relationships between positions. It is integral to the development of grades that movement from one to the next requires the fiat of management. Otherwise, the impact of compensation as bearing some relationship to the value of work is entirely eliminated. Furthermore, employers would be unable to control costs, as employees would simply exercise their unfettered ability to rise to the highest paid grade without demonstrating a change in the contribution to their organization (and indeed the value of that contribution).

8 Such is not thecaseinthissituation. Article IX of the Collective Agreement mandates that a teacher shall be placed on the salary schedule (I note, referred to as the schedule)inaccordancewith recognized teaching experience and new qualifications. Thus, once a teacher successfully completes the requirements for a higher QECO level, he or she is moved to the next level on the grid. No management discretion is exercised in the matter, reflecting that all points on the grid relate to the same work, position and contribution. Therefore, I find that the QECO levels are not seven grades, but one, available to all teachers.

9 There is evidence that at the root of this debate lies the question of whether the equivalencies granted by QECO for Ministry of Education courses are fair. Generally speaking, Ministry courses are more restricted in their application, reflecting a preference for university courses. The Federations would have us accept thatthe biasinfavourofuniversitycoursesresultsinsystemic discrimination, inasmuchas Ministry courses are more readily available and accessible to women who may have other responsibilities. The extent that women are disproportionately represented in any of the levels is nota payequityproblem, but maybeoneof employment equity. Similarly, the reference to the statistic that shows thatfemaleteachers earn 84% of male teacher earnings is misleading since the statistic includes all teachers including all PARs. PARs are disproportionately populated by males, who earn more for their additional responsibilities. QECO itself is managed by the Federations.

10The Board and the Federations (each Federation separately represented) are jointly pursuing steps to facilitate advancement. The evidence indicates that between September 1984 and June 1989, the Wentworth Board has spent $847,934 (annualized) on increased salaries for 246 women who have upgraded their qualifications, compared with $262,023 for 68 men who have also upgraded their qualifications. This represents a serious attempt to remedy any systemic discrimination that might exist in relation to employment equity.

11Therefore, I conclude that teachers are paid on the same"compensationschedule,salarygrade,or range of salary rates."

12Consequently, I would find that the job class is all elementary classroom teachers employed by the Board. This is so, whether one finds that all elementary teachers are in a single position, or by applying the four criteria for job class to teachers.

41. Subsection 14(1) of the Pay Equity Act, 1987 states

14(1) In an establishment in which any of the employees are represented by a bargaining agent, there shall be a pay equity plan for each bargaining unit and a pay equity plan for that part of the establishment that is not in any bargaining unit.

42. Subsection 1(1) of the Pay Equity Act, 1987 defines

"bargaining agent" [to] mean[s] a trade union as defined in the Labour Relations Act that has the status of exclusive bargaining agent under that Act in respect of any bargaining unit or units in an establishment and includes an organization representing employeesto whomthis Act applies where such organization has exclusive bargaining rights under any other Act in respect of such employees.

13The term "establishment" is also defined.

14This definition reinforces the fundamental characteristic of bargaining agency, as enshrined in virtually all labour relations legislation: exclusivity. Before embarking on the major objection to this part of the decision, I point out that, if the Federations are not found to have exclusive bargaining rights for their respective units (according to their mandating statute), then they arguably may not have status under the Pay Equity Act, 1987. The employermaynotbeobligatedtoconductnegotiations with the Federations for the pay equity plan, nor would the Federations be a party before this Tribunal (ss.32(1)).

15In the normal case, a trade union may be certified as bargaining agent for many units. It is not unusual, as well, for a single employer to have one trade union certified as bargaining agent to represent several separate units of the employer's employees (for example, a unit for full-time and another for part-time employees).

16It is, by contrast, a contradiction of terms for more than one trade union or more than one bargaining agent to be certified as "exclusive" bargaining agent for a bargaining unit. Yet, that is the very result that the Federations would have us rule.

17On this question, I find that there are two bargaining agents, and also two bargaining units for which pay equity plans must be developed.

BARGAINING UNIT Reasons

48. Collective bargaining by variousteacherfederationsonbehalfofteachers,generally,isregulatedby the School Boards and Teachers Collective Negotiations Act, R.S.O. 1980, c.464. (Other teachers, excludingthosewithwhom we are concerned in this case, who are notcovered underthe School Boards and Teachers Collective Negotiations Act, are covered under the Labour Relations Act, R.S.O. 1980,

c.228 as amended.) There are significant differences between the two pieces of legislation.

49. The Federations rely on the jurisprudence of the Ontario Labour Relations Board to support the proposition that the scope of the collective agreement and the practiceofthe parties effectively overrides the bargaining certificate under which those bargaining rights are first granted. This is highlighted by a decision of the Ontario Labour Relations Board Canadian Union of Industrial Workers v. Gilbarco Canada Ltd., [1971] O.L.R.B. Rep. March 155, in which the Board found at p. 157

The parties [to a collective agreement] are free to amend, alter, extend or abridge the bargaining rights contained in the certificate... In effect the collective agreement supplants the rights given by the Board's certificate and the Board's certificate is spent once the collective agreement is signed.

1 Collective negotiations for and by teachers are supervised by the Education Relations Commission (the "ERC"). We ought to afford great respect to decisions of the ERC as they are specialist in their arena.

2 In the decisionHamilton-Wentworth Unit Ontario English Catholic Teachers' Association, et al. andThe Hamilton-WentworthRoman CatholicSchool Board, (21May1987) (ERC)[unreported] at page 22, (para 46), it was the view "that bargaining units or structures are determined by both section 1(d) and section 1(c)" [of the School Boards and Teachers Collective Negotiations Act]. Subsection 1(c) defines "board":

(c)"board" means a board of education, public school board, secondary school board, Roman Catholic separate school board or Protestant separate school board and includes a divisional board of education;

and section 1(d) defines "branch affiliate"

(d)"branch affiliate" means an organization composed of all the teachers employed by a board who are members of the same affiliate.

Section 1(a) defines "affiliate" to meanthefiveprovince-wideteacherfederations. Apparently, s.4 of that Act does not determine bargaining unit.

52. Therefore, these terms are statutory; they cannot be applied, except as determined by the statute. This view is also taken in an earlier decision. In OECTA and AEFO v. The Cochrane-Iroquois Falls RomanCatholicSeparateSchool Board, (28 July1986), (ERC)[unreported],the ERC wasdealingwith an attempt by the local Board to require two branch affiliates to negotiate together. This demand was based on the past practice of the parties. The Chair wrote at page 15

[I]t is the position of the Commission that recognition procedures and the structure of bargainingare notmatterswhichthe partiesmaycontractualize and enforceas anyother termofemployment. Rather, such matters are the subject of explicit statutory regulation and fall within the Commission's exclusive jurisdiction.

53. For further background, I look to "The Report of a Commission to Review the Collective Negotiation Process Between Teachers and School Boards" (the Matthews Report). This report reviewed the state of collective negotiations in 1980, and prepared recommendations for change, as appropriate. While it is not determinative, it does reflect how teachers and boards of education look

upon the question of bargaining unit, and may therefore be helpful in deciding this question. I note that the statutory framework for collective bargaining has not changed since the report issued.

2 It is of significance that the section on "Bargaining Unit Problems" deals first with issues of compositionofthe bargainingunit(questions ofinclusionofPrincipals,VicePrincipals,occasionalteachers, and so forth), and then subsequently, with questions of "Joint bargaining" (including various affiliates negotiating jointly for, say, all teachers of a board in an elementary panel).

3 From this, it is clear that the term bargaining unit refers to the unit of all statutory members of a branchaffiliate(whichistheexclusivebargainingagent)employedbyaboardtoteach. On this basis, I find that there are two bargaining units in question, and two pay equity plans required.

4 The majority writes that "there is no necessaryunitybetweenbargainingagentand bargaining unit." (para. 60) While it is true that one bargaining agent can have representationrightsformorethanoneunit, anemployeecannotberepresentedbymorethanoneexclusive agent. Inthiscase,femalesare,according to the by-laws of the Ontario Teachers' Federation, members of FWTAO. They may also become members of OPSTF. Men may not be members of FWTAO. In the case of a female who takes membership in OPSTF, it is not clear against whom she may enforce representation rights. In any event, she cannot be represented with finality or exclusivity by both. Furthermore, the majority has written that membership is not an issue in this case.

5 Further to the arguments above, the Federations point out that the two units in question here negotiate jointly for renewing collective agreements. Accordingly, we are urged to find that the two bargaining agents become "a party" (in the singular) and represent a singular "bargaining unit" made up of parts. I do not find this argument persuasive.

6 It is true that the branch affiliates of the Federations come together to negotiate for renewal of collective agreements. This has been the case without exception at these boards. The structure for doing this is quite well established, and finds expression in the Federations' handbooks, as well as in the law.

7 Subsection 4(3) of the School Boards and Teachers Collective Negotiations Act specifies:

Notwithstanding subsection (1), two or more branch affiliates may act as one party in negotiations and procedures under this Act to make or renew an agreement or agreements with the same board.

1 In OECTA and AEFO v. The Cochrane-Iroquois Falls Roman Catholic Separate School Board,(28 July 1986), (ERC) [unreported], at page 2, it is said "there has been one set of negotiations and onecollective agreement rather than two." The facts in that case in respect oftheconductofnegotiations are not different from those in this case.

2 However, the question remains as to the status of the branch affiliates who enter into such an agreement. Does the fact that they have entered into a single collective agreement mean that they now share a single bargaining unit? I think not.

3 The majority writes (para. 59) "thePayEquityAct,1987 acknowledges that the status of bargaining agent is determined under other statutes", [in this case the School Boards and Teachers Collective Negotiation Act]. Further, they write, "Other statutes ... set out a scheme for collective bargaining and the role of the bargaining agent." (also para. 59) The role of bargaining agent is set out for the branch affiliates in the School Boards and Teachers Collective Negotiation Act. The Federations submit that the cumulative effect of ss.4 (3) and other sections of the Act, is that the two bargaining agents, acting together, become a (single) party. While some sections of the School Boards and Teachers Collective Negotiation Act seem to anticipate procedures with (only) two parties,thereare otherswhichrecognize, protect and obligate the individual federations,regardlessoftheirapproachtonegotiations. Based on the Act, together with the ERC decisions above, I find that, as a matter of law, the two federations remain separate, though acting as a party and executing a single collective agreement.

4 In light of this, we must accept the status oftheseagentsaswefindthem. It is inappropriate for the Tribunal to make a determination of exclusive bargaining agent, applying the purpose of the Pay Equity Act, 1987, without assuring that the School Boards and Teachers Collective Negotiation Act is first correctly applied.

5 The collective agreement ensures the ability of each Federation to meet its statutory obligation to represent its members. Seniority lists, once prepared, are sent to each individual Federation (article 22.14). Federation fees are deducted and remitted to the Ontario Teachers' Federation (article 24.01); the fees for each of FWTAO and OPSTF are distinct, and set by each Federation independently. Each branch affiliateisrepresentedseparatelyon various committees (including effects of specialeducation, affirmative action, payequity, occupationalhealthand safety) (article 25.09 and others). Each branch affiliate has its own grievance officer, and each branch affiliate is entitled to represent member grievors (article 26). Leavesofabsence are provided for and granted to Presidents and officers of each branchaffiliate(article 28.01). The collective agreement is signed by each branch affiliate (article 32.02).

6 The process leading to this is complex. As outlined in the decision by the majority, ratification of renewal collective agreements is done on a basis which does not distinguish along the lines of affiliate membership. However, the nature and extent of the consultations and involvement of the individual branch affiliates and the provincial federations in the negotiation process, is such that, in reality, Affiliate interests are protected.

7 The individual branch affiliates are equally represented on the Economic Policy Committee (EPC), thecommitteewhichisformedtorepresentthe teachers in negotiations with the Boards. Ifoneofthetwo branch affiliates were to find proposed terms for amendment to the collective agreement to be unacceptable, they have, through their equal representation, the ability to foreclose acceptance. The provincial bodies of OPSTF and FWTAO maintain strict policies requiring branch affiliate liaison during bargaining. While the ratification process, therefore, suggests that the membership of the individual branch affiliates is not distinguished, the full process reveals the ability of the affiliates and each branch affiliate to represent and protect its own interests.

8 In Cochrane-Iroquois Falls, the ERC wrote

It has long been recognized in Canadian public policy that the collective bargaining process involves, and logically should involve, the pursuit ofself-interestbyeach of the parties[thetwobranchaffiliates]. While the parties are freeundertheprovisionsofthe Act to join others in that pursuit, they are not required to do so. (page 15) .... As well, this position [as proposed by the Board in that case, to require the Branch Affiliates to negotiate together] would foreclose the ability of the Branch Affiliates throughout the negotiation process to pursue their own interests. This is a serious restriction. (page 17)

1 Therefore, the entire regime governing collective bargaining among these parties assures that, in spite of a decisionbybranchaffiliatesto negotiatetogetherfor renewal of agreements, they are necessarily free and required to remain separate and distinct parties. I note further, the definition for "party" in the School Boards and Teachers Collective Negotiation Act, says "'party' means a board or a branch affiliate."

2 Themajorityfinds,however,(para.74)"thatforpurposesofthe Pay Equity Act, 1987, the branch affiliates acting jointly constitute the bargaining agent." The only vehicle for this joint action is the EPC. The EPC isanad hoc,committeeconstitutedonlyforthe purposeofnegotiatingarenewalcollective agreement; it is subservient to both the local executives of the branch affiliates and the provincialFederations;it plays no role in representing employee interests during the term of the collective agreement; it has no responsibilityunder the School Boards and Teachers Collective Negotiation Act (s.5). It has none of the attributes of exclusive bargaining agent. Naming the EPC the bargaining agent changes the words of ss.4(3) of that Act from"act as one party" to "betheparty", whichissignificantand,Ibelieve,notintended by the legislature. In short, this decision creates a totally artificial bargaining agent which exists nowhere in the real world.

3 This is in contrast to the collective agreement between the Carleton Board of Education and the Teachers' Federation of Carleton, comprising members of FWTAO and OPSTF and AEFO. The recognition clause in that collective agreement is notably different

1.01 The Board recognizes the "Teachers Federation of Carleton", (T.F.C.), which represents the Branch Affiliates, including the T.F.C. members with l'Association des enseignantes et des enseignants franco-ontariens, as the sole and exclusive bargaining agent for teachers as defined herein and in the employ of the Board.

Ifindeed, the branch affiliates are inanysenseable tomerge their rights, itwould seemthis mayhave been done in Ottawa. However, it cannot be said that the branch affiliates in the cases before us turned their mind to this possibility nor did they succeed in negotiating such a provision with the Boards.

71. Finally, the Federations have had significant differences among themselves. It is the expressed intentionofOPSTF to seek a single federation with statutory right to represent elementary(public)school teachers in Ontario. To this end, they have opened up the membership to permit voluntary membership

byfemales,otherwisemembersofFWTAO. Indeed, some of these women who have taken up voluntary membership in OPSTF have taken on leadership roles; a woman has acted as President of OPSTF..

2 Two long and extensively fought legal actions have arisen in this context. They are Federation of WomensTeachers'AssociationofOntarioetalandMinisterof ConsumerandCommercialRelations et al. (1984), 46 O.R. (2d) 94 (H.C.J.); affirmed (1984), 1984 CanLII 2175 (ON HCJ), 46 O.R. (2d) 645 (Div.Ct.); and Tomen and OPSTF v. FWTAO et al. (1987), 1987 CanLII 4396 (ON HCJ), 61 O.R. (2d) 489 (H.C.J.); affd. (16 August 1989), (Ont. C.A.) [unreported]. See also Re Federation of Women Teachers' Association of Ontario and Ontario Human Rights Commission et al. (1988), 1988 CanLII 4794 (ON HCJ), 67 O.R. (2d) 492 (Div. Ct.). In both cases, FWTAO took vigorous positions opposing those expressed by OPSTF.

73. This opposition is perhaps best expressed by a newsletter article published by FWTAO. In the February19, 1988 edition(Number12) of FWTAO "Postehaste", in anarticle entitled"We'refightingfor our very Existence", the Federation writes

FWTAO has always cooperated with OPSTF in areas of mutual interest - salary negotiations for example. We stop short of amalgamation. The interest is not mutual.

3 Accordingly, FWTAO and OPSTF are separate entities, with separate status in law, and clearly separateinterests. They come together to negotiate collective agreements, in Hamilton-Wentworth, as well as across the province. However, they remain separate throughout, with an individual responsibility to protect and represent their respective, defined memberships.

4 Finally, the Pay Equity Act, 1987 provides some further insight into the debate. The following sections pertain:

2(1) Two or more employers and the bargaining agents or agents for their employees who come together to negotiate a central agreement, may agree that, for the purposes of a pay equity plan, all the employees constitute a single establishment and the employers shall be considered a single employer.

(3) Notwithstandingthatthe employeesoftwo or moreemployersare consideredto be one establishment under subsection (1) or (2), each employer is responsible for implementing and maintaining the pay equity plan with respect to the employer's employees.

7(1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).

25(2)(a) where it finds that an employer or a bargaining agent has failed to comply with Part II, may order that a review officer prepare a pay equity plan for the employer's establishment and that the employer and the bargaining agent, if any, or either of them, pay all of the costs of preparing the plan;

1 These sections confirm a correlation between bargaining agent and bargaining unit. They accord with the view that trade unions may have bargaining rights for more than one bargaining unit. Subsections 2(1) and (2) of the Act specifically empower two or more employers (who already negotiate centrally) to continue this practice for payequitypurposes. This may only be done by mutual agreement, including that of the bargaining agents involved. I note that the legislators did not provide a parallel provision for bargaining agents and find, therefore that no parallel authority exists for them. Furthermore, in the case of "merged" employers, the obligation for pay equity rests with the constituent employers which parallels, again, the School Boards and Teachers Collective Negotiation Act.

2 Reference to structures for the separateschoolsystemsisnothelpful,either. The majority point out that OECTA (and AEFO, where it is present) represent both male and female teachers together, such that the pay equity plan would allow comparisons of the teacher job class to others. While this may be so, it is not uncommon to have a single bargaining unit for all teachers in a separate school system from Kindergarten through to Grade 12/OAC. Therefore, one comparison now available to the public school elementary teachers (secondary school teachers) is not available to the separate school teachers. Furthermore, the job class demographics may be different, with the result that no comparisons are made. Finally, the question of the number of pay equity plans within a separate school board is not before us.

Conclusion

78. For all the reasons above, therefore, I conclude that the Federations are separate bargaining agents, and have rights with respect to separate bargaining units. This has been the law applicable to the elementary school community; it has also been the practice between these parties; the Federations have been accorded separate and distinct privileges on that basis. It is incorrect and fundamentally unfair to require these employers now to deal with these two entities as if one. I would amend the Tribunal's decision accordingly.