Glengarry Memorial Hospital v. Ontario Nurses' Association, 1991 CanLII 4447

Glengarry Memorial Hospital v. Ontario Nurses' Association

0141-90 Glengarry Memorial Hospital, Applicant v. Ontario Nurses' Association, Respondent

Before: Janis Sarra, Vice-Chair; Bruce Budd and Donald Dudar, Members

Appearances: Anne Burke, Susan Baxter for the Applicant; Anne Marie Delorey, Pauline Lefebvre Hinton, Raymonde Boileau, Dan Renaud for the Respondent

Cite As: Glengarry Memorial Hospital (1991), 2 P.E.R. 153

Adjustments - Collective Agreements

Subsection 13(10) of the Act requires that pay equity adjustments be incorporated into the collective agreement rate that prevails as of the date of adjustment, and then requires that whatever increases in rate provided for thereafter in the collective agreement be calculated on the basis of the adjusted rate.

Maintaining Pay Equity

In this case, all the non-union staff received increases of 5.5% or more except the male comparator job classand two other male job classesofequalvalue. This differential treatment had the impact of artificially holding back the nurses' job rate.

Maintien de l'équité salariale

Dans le cas présent, tout le personnel non syndiqué a reçu une augmentation d'au moins 5,5 %, sauf la catégorie d'emplois à prédominance masculine en question et deux autres catégories d'emplois à prédominance masculine de valeur égale. Cette différence de traitement a eu pour résultat de retenir artificiellement le taux de catégorie des infirmiers et infirmières.

Rajustements - Conventions collectives

Le paragraphe 13(10) de la Loi exige que les rajustements effectués au titre de l'équité salariale soient incorporésautauxdelaconventioncollective qui estenvigueuràladatedurajustement. Il exige aussi que touteaugmentationde tauxprévueparlasuitedans laconventioncollective soit calculéeenfonctiondutaux rajusté.

DECISION OF THE TRIBUNAL, JUNE 6, 1991

1This is an application by the Employer, Glengarry Memorial Hospital ("the Hospital"), seeking to revoke an order of a Review Officer dated September 28, 1990, which orders the Employer to pay the female job class in these Ontario Nurses Association ("ONA") bargaining units an additional $0.37 per hour. From this order, there are three issues before us. First, the Employer disputes the Review Officer's finding that it violated subsection13(10)ofthe Pay Equity Act, 1987, S.0.1987, c.34, as amended, (the "Act") by failing to incorporate the pay equity adjustments into the collective agreement. Second, the Employerdeniesthatitfailedto maintainpayequityas requiredbysubsection 7(1) of the Act. Finally, the Employer denies that it breached subsection 9(1) of the Act by reducing the male comparator's wage to achieve pay equity.

2The facts are not in dispute. During the negotiations for a pay equity plan, the parties agreed that the registered nurses employed by the Hospital constitute one female job class for pay equity purposes. No male job class of equal or comparable value ("male comparator") existed in the ONA bargaining unit. When the parties were unable to reach agreement on a pay equity plan, they sought the assistance of a Review Officer. By an initial order dated November 24, 1989, the Review Officer found that the maintenance supervisor is the male comparator for the female job class of registered nurse.

3ONA filed an application for hearing to the Tribunal objecting to the first Order. Before the matter was heard, the parties agreed in a memorandum of settlement to:

The Facts

execute a pay equity plan and implement adjustments for registered nurses retroactive to January1, 1990, consistent withthe resultsofthe comparisonmadebytheReviewOfficer in her order dated November 24, 1989.

OnJanuary1,1990, the hourlyjob rateforthe male comparatorwas$19.90and the hourlyratefornurses was $19.53. Thus there was a wage gapof$0.37perhour. The Hospital agreed to amend the collective agreement by the full pay equity amount effective January 1, 1990 and as a consequence, the nurses received a pay equity increase of $0.37 per hour. The parties did not discuss the import of subsection 13(10) when they settled the pay equity plan. The Employer also settled other pay equity plans for its establishment and paid out intotalatleast one percent of its 1989 payroll in 1990 payequityadjustments.

4. The existing collective agreement between ONA and the Employer provided that the hourly job rate of the Registered Nurses would increase from $19.53 to $20.62 on April 1, 1990, an increase of $1.09 per hour. From April, 1990 onwards, the Employer paid the nurses $20.62. As a result, ONA complainedto the ReviewOfficer that they were entitledto the ratespreviouslynegotiatedinthe collective agreementaswellasthe$0.37payequityadjustment. TheOfficeragreedwithONAandissuedasecond order dated September 28, 1990. This Order, which is now at issue before us, required:

the Employerto adjustforthwith the rates of pay forthe incumbentsofthe fulltime and the part time Registered Nurse job classes by $0.37 retroactive to April 1, 1990. Each step of the full time and the part time pay grids shall therefore be $0.37 more than the increments set out in the April 1, 1990, salary ranges of the collective agreements.

5. The Review Officer alsodealtwithONA'sallegationthat the Employer failed to maintain pay equity contrary to its obligation under subsection 7(1) ofthe Act. The beginning of April 1990 was the date for theannualreview for non-union staff, and on April 1, 1990 the Employerincreasedtheirwagerates. The Hospital's evidence was that it gives annual increases based upon its normal practice of estimating the increase that members of the Canadian Union of Public Employees in their Hospital would receive at interest arbitration; the Hospital's estimate for the period in question was 5.5%. That figure was also the general funding increase given to the Hospital for the year. The only three jobs which were not given at least the 5.5% increase were the maintenance supervisor and two other jobs pegged at the same value for

the purposes of pay equity. These jobs each received a 3.6% increase; whereas, the remaining of the 17 non-unionjobclassesreceivedincreasesfrom5.5%to29%. The Employer explained the increases above 5.5% for 7 job classes as "non-pay equity"` increases which were internal equity adjustments. Its only explanation for giving the male comparator less than the 5.5% increase given to all other non-union job classeswasthat a 3.6% increase would keep the male comparator at the registered nurse rate of$20.62 per hour. The Hospital submits that it does not rely upon the red-circling provision of subsection 8(1) of the Act as justification for the smaller increase to the male comparator job class.

2 In the present application before the Tribunal, the Employer objects to the Review Officer's Order. The Employerstatesthatitwas required to adjustthe wagesofthe nursesinorder to redressthe wage gap that existed between the collective agreement rate for the nurses and the hourly rate for the male comparatorfromJanuary1,1990toApril1,1990. It submits that because the wage gap no longer existed as of April 1, 1990, it is no longerobligedto paythe $0.37 or any other amount in respect of pay equity. The Employer submits that maintaining pay equity merely requires that the male comparator's hourly rate does not exceed that of the nurses.

3 ONA submits that they are entitled to the full measure of the increase provided for in their collective agreement as well as thefullmeasureofthepreviouslydeterminedpay equity adjustment. ONA relies on the Officer's findings that subsections 13(10) and 7(1) ofthe Act require that the previously determined pay equity wage adjustment is folded into the collective agreement, with the effect that all nurses' rates set out in that collective agreement were increased by $0.37. ONA further submits that the Employer breached subsection 9(1) of the Act by reducing the male comparator's wage to achieve pay equity.

Subsection 13(l0) Requirements

8. With respect to the Review Officer's finding that the Employer must uniformly apply the pay increases to all increment stages and salary ranges of the collective agreement, we agree. Section 13 contains the requirement to prepare pay equity plans, and sets out what, at a minimum, they must include. Subsection 13(10) specifies that the plan prevails over all the relevant collective agreements:

13(10) A pay equity plan that is approved under this Part prevails over all relevant collective agreements and the adjustments to rates of compensation required by the plan shall be deemed to be incorporated into and form part of the relevant collective agreements.

Therefore,subsection13(10) requiresthe adjustmentstoratesofcompensationrequiredbythe payequity plan shall be incorporated into, and form part of the relevant collective agreements. This requirement is unusual in that it prevails over and adjusts rates which have been collectively bargained and which govern the parties for the life of the collective agreement. The collective agreement continues to operate as before butwiththepayequityadjustmentsincludedintheratesof compensation. Subsection13(10)thusenables the Tribunal to examine the collective agreement and the payment of wage rates under it, in order to exercise its jurisdiction to determine whether a party has complied with subsection 13(10) [see Beef Terminal (1979) Limited ,[1981] OLRB. Rep. Mar. 244, para.8]. Subsection 13(10) requires that pay equity adjustments be incorporated into the collective agreement rate that prevails as of the date of adjustment ("the Adjusted Rate"), and then requires that whatever increases in rate may be provided for inthecollectiveagreementthereafterbecalculatedonthebasisoftheAdjustedRate. Those increases may be expressed as an absolute dollar amount, as they were here, or may be expressed as a percentage, depending upon how the increases were originally negotiated in the collective agreement.

1 This approach respects the integrity of both the pay equity process and the collective agreement negotiations, and recognizes that a portion ofthe nurses' hourly rate is attributable to each. To adopt the Employer's approach would permit either the pay equity adjustment to be swallowed up by the collective agreement or a portion of the collectively negotiated increase to be swallowed up by the pay equity adjustment. The Tribunal's approach is least intrusive with respect to the collectively bargained employment contract.

2 In this case, at January 1, 1990, the wage gap between the nurses and the male comparator was $0.37 per hour. The Employer had agreed to implement the full amount of this adjustment on January 1, 1990. The pay equity adjustment is deemed to be incorporated into and form part of the collective agreement pursuant tosubsection13(10) ofthe Act. Basedupontheir agreement, the effect of subsection 13(10) of the Act would be to change the collective agreement rate on January 1, 1990 from $19.53 to $19.90 ("the Adjusted Rate"). The collective agreement provided for an April 1, 1990 rate which is an increase of $1.09 per hour. This negotiated increase would be added to the Adjusted Rate of $19.90. The collective agreement rate on April 1, 1990 would thus become, pursuant to section 13(10), $20.99.

Maintaining Pay Equity

11. The second issue arising out of the Order of September 28, 1990, is whether the Employer failed to maintain pay equity as required by subsection 7(1) of the Act. The Employer denies that it violated subsection 7(1). ONA submits that it is entitled to an amount greater than $0.37 per hour because the Employer failed to maintain pay equity. Subsection 7(1) specifies:

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

The Act is aimed at eliminating systemic wage discrimination by identifying and redressing the wage gap between female and male job classes which perform work of equal value. Once pay equity has been achieved, the statute requires parties to maintain pay equity. Subsection 7(1) of the Act requires that the Employer maintain compensation practices that provide for pay equity, and subsection 7(2) prohibits employers and bargaining agents from bargaining or agreeing to compensation practices which do not establish or maintain pay equity.

12. In this case, the male comparator was found among the Employer's non-union staff. The Tribunal hasalreadyadvertedto the factthatthe Employerfolloweditsusual practice and revised its salary grid for the non-union staffwiththe notable exceptionofthe male comparator and the two jobs found to be equal value to the nurse job class; to which it gave considerably less. Clearly an Employer can set salaries for

staff with whom it does not have to collectively bargain. Had the Employer in this case chosen to give no increasesto itsmanagement staff, itmaynothave beeninviolationofsubsection 7(1) of the Act, since pay equity is established and maintained when the job rate of the female job class is at least equal to the rate of the male job class. Similarly, if after the regular management pay increases were given, the female job classhadreceiveda higherjob ratewhenthe payequityadjustmentscombinedwiththe regularcollectively bargainedadjustments were implemented, the Employer would not necessarily beunderanyobligationto further increase the non-union male salaries to match, since subsection 6(1) requires that the job rate for the female job class must be at least equalto the job rateofthe male job class where the work is of equal or comparable value. However, in this case, all the non-union salaries were increased 5.5% or more, except those of the male comparator and two job classes of equal value. We find that the Hospital's explanation that the only reason these job classes received less was to hold them down to the nurse job rate,isnotanacceptableexplanation. This differential treatment had the impactofartificiallyholdingback the nurses' job rate, negating the effect ofthepayequityplan. As a result, we find that the Employer failed to maintain pay equity as required by subsection 7(1) of the Act.

2 Given our findings on subsections 13(10) and 7(1), we find it is not necessary to decide the issue of whether the Employer violated subsection 9(1) of the Act.

Order of the Tribunal

14. Accordingly, the Tribunal upholds the Review Officer's finding with respect to her interpretation of the Act. The parties came to the Tribunal for an interpretation of these sections arising out of an honest disagreement. Giventhatthisisafirstinterpretationofsubsections13(10)and7(1),wefind it appropriate to directthe partiesto meetwithin30 daysandattemptto agreeonhowthe nurses'salarieswillbe adjusted to comply with the Act and this decision. We remain seized to order the appropriate remedy should the parties be unable to agree.