0166-91 Ontario Nurses' Association, Applicant v. Lady Dunn General Hospital, Respondent
Before : Raphael Palumbo, Vice Chair; Donald Dudar and Bruce Budd, Members
Appearances: Anne Marie Delorey, Pauline Lefebvre Hinton, Carol Styres and Carolyn Prepp for the Applicant; Allan Shakes and Shelagh Quigley for the Respondent
Cite As: Lady Dunn General Hospital (1991), 2 P.E.R. 168
Adjustments - Benefits
In order to achieve pay equity, the sum of all salaries or wages and benefits, if any, received by a female job class must be equal to the sum of all salaries or wages and benefits, if any, provided to its male comparator job class. The adjustment maybe made to wages or salaries, to benefits, or to a combination of the two. In this case, there was no evidence that the collective bargaining process would be circumvented or that the Respondent would otherwise suffer undue hardship of the pay equity process resulted in a change of vacation entitlement for the female job class.
Remedies - Revocation of Orders
The Respondent took the position that the Tribunal could not revoke or vary the Review Officer's order unlessitviolatedthe Act,or wasincorrectinrelationto the Act. The Tribunalheld thatitsrole isnotlimited to determining whether the order is incorrect or contravenes the Act, and thatitwould dealwiththe original issue between the parties.
Rajustements - Avantages
Dans le domaine de l'équité salariale, il faut que l'ensemble des salaires et des avantages, le cas échéant, que reçoivent les personnes appartenant à une catégorie d'emplois à prédominance féminine soit égal a l'ensemble des salaires et des avantages, le cas échéant, versés aux membres de la catégorie d'emplois à prédominance masculine qui sert à la comparaison. Les rajustements peuvent être apportés soit aux salaires,soitaux avantages,soitàunecombinaisondesdeux. Dans le cas présent, il n'était pas prouvé que le processus de négociation collective échouerait ou que l'intimé subirait autrement un préjudice indû sile processus d'équité salariale entrainait une modification des congés annuels accordés aux membres de la catégorie d'emplois à prédominance féminine.
Recours - Révocation des ordres
L'intimé a adopté lepoint de vue selonlequelleTribunalne pouvait révoquer ou modifier l'ordre de l'agent de révision que sicet ordre enfreignait la Loi ou était incorrect par rapport à la Loi. Le Tribunal a conclu que son rôle ne se limitait pas à decider si l'ordre était incorrect ou s'il enfreignait la Loi, et qu'il traiterait de la question originale soulevée par les parties.
DECISION OF THE TRIBUNAL, JUNE 28, 1991
- The Ontario Nurses' Association ("ONA") is objecting to an Order of a Review Officer which requires the LadyDunnGeneralHospital(the "Hospital") to equalize compensation between a female and male job class by providing the cash value for the difference in vacation entitlement. The issue in this case
is how to adjust thecompensationpaidtothenursejobclassinordertoachieve pay equity. In particular, is pay equity between the nurse and manager of plant maintenance job classes to be achieved by way of a cash payment in lieu of an increase in vacation entitlement for the nurses?
2 ONA argued that its members ought to receive the increased vacation benefit "as of right". In the alternative, ONA requested that we exercise our discretion and order that, in the circumstances of this case, the compensation paid to its members be adjusted by ordering an increase in their vacation benefit. While we have doubts about the first argument, we dispose of the dispute before us on the second ground and it is therefore not necessary to decide the "as of right" question.
3 The Hospital objects to the Application. They argue that the Review Officer's determination is correct and ought not be changed, and that the order sought would result in undue hardship to the Hospital.
Facts
1ONA is the bargaining agent for bargaining units of full-time, and part-time and casual registered nurses employed by the Hospital in Wawa, Ontario. There are 20 nurses in the bargaining units represented by ONA.
2The Hospital operates on a 24 hour basis, and has 16 chronic care beds as well as 12 active beds for acute care patients. Acute care patients include patients with strokes, diabetes or heart conditions, cancer patients, patients requiring isolation for various infectious diseases and post-operative patients. There is also an emergency room and an operating room at the Hospital.
3The nurses at the Hospital work 12 hour shifts, days and nights. On the day shift, there is one registerednurseintheemergencydepartmentforeighthoursandtwoontheward for 12 hours. The head nurse is also on dutyforeighthours. On weekends, one nurse is on duty in the out-patient department for 8 hours while two nurses take their regular 12 hour shifts on the ward. One of these two nurses also assumes administrative duties since neither the ward clerk nor the pharmacist are on duty on weekends.
4There are three categories of nurses in the bargaining units: full-time, and part-time and casual. Full-time and part-time nurses are listed on a master schedule which lists the shifts they are to work. Casual nurses fill in for the full-time and part-time nurses when required.
5ONA and the Hospital were negotiating a pay equity plan and agreed that the nurse job class was comparable in value to the manager of plant maintenance. The difference in wages between the two job classes is $0.20 per hour, and it was agreed that an adjustment in that amount would be made to the compensation paid to the nurse position. The parties also found that there was a difference in vacation entitlementbetweenthetwojobclasses. The manager of plant maintenance is entitled to a vacation benefit of:
4 weeks after 1 year of service 5 weeks after 8 years of service 6 weeks after 17 years of service.
The vacation entitlement for nurses under the relevant collective agreement is:
3 weeks vacation after 1 year of service 4 weeks vacation after 3 years of service 5 weeks vacation after 15 years of service 6 weeks vacation after 25 years of service.
The vacation entitlement for part-time registered nurses is calculated on the basis of the number of hours of service. Every 1500 hours worked is equivalent to one year of service.
1 This case is not complicated by the difficulty in calculating the benefit in monetary terms. It was agreed that the difference in vacation entitlement is $0.39 per hour. The Hospital proposed to pay this amount to the nurse position in lieu of the increased vacation benefit. ONA proposed that its members receive the same vacation benefit as the manager of plant maintenance rather than the cash. The parties agreed that a further adjustment in favour of nurses was required but could not agree on the method of making this adjustment.
2 When the dispute could not be resolved, ONA applied to the Pay Equity Commission; a Review Officer was appointed to investigate the matter and to endeavour to effect a settlement. Ultimately, the Review Officer issued an Order which provided:
It is my opinion that the Pay Equity Act, 1987, although recognizing that benefits are to be included in the calculation of compensation, does not intend to cause undue hardship to employers. In this case, adjusting the vacationschedule as opposed topayingthe value of the vacation in wages would cause such undue hardship.
I hereby order that the Employer and Union calculate the actual monetary worth of the vacation benefit. This amount is to be added to the $0.20 per hour pay differential to determine the total hourly adjustment required to achieve pay equity...
Arguments and the Law
1 Subsection30(1) of the Pay Equity Act, 1987, S.O. 1987, c.34, as amended (the "Act") confers upon the Tribunal the exclusive jurisdiction to determine all questions of fact or law that arise in any proceeding before it. Theissuebeforeusishowthecompensationofthenursejobclassistobe adjusted. That is a question oflaw, requiringus toconsiderand interpretthe provisions ofthe Act and to apply them to the facts of this case.
2 The term compensation is defined in subsection 1(1) of the Act to mean:
allpaymentsand benefits paid or provided to or for the benefit ofa personwho performs functions that entitle the person to be paid a fixed or ascertainable amount.
Clearly, a distinction has been made between payments received by employees in the form of salaries or wages,andbenefitsprovided to those employees. However, thecompensationprovidedtoanyjobclass is a combination or sum of salaries or wages, and benefits, if any, provided to that job class.
- Subsection 6(1) outlines when pay equity is achieved:
For the purposes of this Act, pay equity is achieved when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value.
Job rate is defined insubsection1(1)as"thehighestrateofcompensationforajobclass". Where two job classes are of equal or comparable value their job rate must be equal, and job rate is defined in terms of the highest rate of compensationfora job class. Therefore, in order to achieve pay equity, the sum of all salariesor wages,and benefits,ifany, receivedbya female jobclassmustbe equalto the sumofallsalaries or wages, and benefits, if any, provided to its male comparator job class.
1 In our view, where the compensation paid to a female job class must be adjusted to achieve pay equity, that adjustment may be made to wages or salaries, to benefits, or to a combination of the two. If equal compensation has been achievedthroughanadjustment inanyofthese ways, then pay equity under the Act has been achieved. Since the partieshavefailedtoresolvethismatterbynegotiation,thequestion for the Tribunal in this case is what type of an adjustment must be made tothe compensationprovided to ONA's members in order that pay equity be achieved.
2 As we indicated earlier, the Review Officer ordered thatpayequityinthiscase would be achieved by calculating the monetary worthofthe vacation schedule and adding that amount to the $0.20 per hour pay differential. The Hospital takes the position that unless the Order violates the Act, or is incorrect in relation to the Act, then the Tribunal cannot revoke or vary the Order.
3 In our view, our role is not limited to whether the Order is incorrect or whether it contravenes the Act. Rather, we are todealwiththe originalissue betweenthe parties, which is how the compensation of the nurses employed by the Hospital is to be adjusted in order to achieve pay equity. The hearing before us is de novo. That is, we will take a fresh look at the issues before us rather than treat this matter as an appeal from the Review Officer's Order. In Cybermedix Health Services Limited (1990), 1 P.E.R. 41 at page 45, the Tribunal described the process as follows:
In contrast, section25 ofthe Pay Equity Act, 1987 requiresthe Tribunaltohold a hearing and to comply with the provisions of the Statutory Powers Procedure Act. This proceedingisnotanappealfroma reviewofficer's order, but is rather, a hearing de novo ontheissuesindispute. For example, the only information the Tribunal had about this case fromthe Pay Equity Office is the order ofthe reviewofficer.Evidenceonissuesindispute must be called at the hearing by the parties and be subject to cross-examination. The Tribunalwillassess the credibility of witnesses and determine the weight to be giventothe evidence. To turn these proceedings into an appeal of a review officer's order would be contrary to the intent of the statute, would have the negative impact of judicializing the review services process and would take away their primary focus on mediation and settlement. Therefore, these proceedings will be hearings not appeals, and the decisions of the Tribunal will be made based on the evidence presented at the hearing.
1 The Hospital further argued that if we awarded the nurses an increase in their vacation entitlement the collective bargaining process would be circumvented. At the present time the ONA local and the Hospital participate in a centralized bargaining process, the outcome of which is standardization among hospitals of the vacation entitlement. If the vacationentitlementfornursesatthisHospitalwereincreased, asuperiorconditionwouldbecreated. Nurses at this Hospital would receive a greater vacation entitlement thanothernurseswhofallunderthesame collective agreement. TheHospital'spositionisthatthevacation entitlement ought to flow from the collective bargaining process so that it is standard for all nurses under the centrally negotiated collective agreement.
2 No evidence was led by the Hospital as to how the collective bargaining process would be circumventedifthe payequityprocess resultedina change ofthe vacationentitlement forONA's members at the Hospital. In fact, the only evidence respecting the centralized bargaining process was that the Hospital participates in that process along with approximately 175 other hospitals in the Province.
3 As well, given that the Act requires a separate pay equity plan for each bargaining unit in an establishment, salaries and wages, or benefits for nurses in hospitals throughout the province may be different depending on the male comparators chosen in each hospital. Since the parties here are not engaged in central bargaining for pay equity, and given the process established under the Act, there is no guaranteethat standardization of matters negotiated under the centralcollective bargainingprocesswillbe maintained.
4 The Act also envisions changes in the relevant collective agreement as a result of the pay equity process. Subsection 13(10) of the Act provides:
(10) Apayequityplanthatisapproved 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.
It appears therefore that the Act anticipated that regardless of the contents of an existing collective agreement, any adjustments made to the compensation paid to the female job classes simply become part of the collective agreement. While we recognize that some difficulties may arise as a result of a lack of standardizationin compensation from hospital to hospital in Ontario,therewasno evidenceledas to what those difficulties might be.
- It is acknowledged by both parties that if ONA were successful in its application, only nine of its members would receive the additional vacation entitlement immediately, since the other nurses would not have metthe requirednumberof years of service which would entitle them to anincreaseinvacationtime. If however, the vacation entitlement wereadjustedbywayofapayment inlieuof increased vacation time, all nurses would benefit immediately by an increase in compensation of $0.39 per hour (over and above
the$0.20payincreasealreadyagreedto). The Hospital argued that this should be a factor in deciding that the compensation provided to ONA's members ought to be adjusted by way ofanhourly cash payment.
2 The question of whether or not all of the nurses can take immediate advantage of the increased vacation benefit is distinct from whether they ought to receive such an increase in lieu of a cash payment. In any event, the fact that each and every nurse could not exercise that benefit immediately does not mean that they would not be entitled to the increased benefit. They would be, but the exercise of each nurse's right tothebenefitdependsonmeetingtherelevantservicerequirements. This is analogous to the position of the manager of plant maintenance who is entitled to the vacation schedule set out above, but who can only take 6 weeks of vacation after completing 17 years of service at the Hospital.
3 Another matter raised by the Hospital is the effect of subsection 9(3) on how adjustments in compensation are to be made. Subsection 9(3) provides that
(3) Where,to achieve pay equity, it is necessary to increase the rate of compensationfor a job class, all positions inthe job class shall receive the same adjustment in dollar terms.
Does this provision mean that adjustments to compensation may only be made by monetary payments, thereby eliminating the possibility that adjustments in compensation may occur by adjusting benefits provided to a job class?
1 The Hospital argued that to achieve pay equity all positions in a job class are to receive the same adjustments in dollar terms. This would mean that all nurses would immediately receive an increase of $0.39 per hour in compensation regardless of the nurses' years of service. The Hospital's positionisthat subsection 9(3) of the Act requires it to give the same adjustments to all nurses, and that since it must be "in dollar terms", everyone mustreceivethesamemonetaryincrease. This approach cannot be used if the vacation entitlement is adjusted in the manner requestedbyONA, since not all nurses are now entitled to the same vacation benefit.
2 In our view, subsection 9(3) provides that where compensation is increased by way of a payment to a job class, each position in that job class must receive the same monetary increase. In other words, it is not permitted topayone positioninajob classanadjustment of$0.25 per hour while another position in that job class receives a $0.32 per hour increase. In our view, subsection 9(3) is not determinative of the issue before us.
3 The Hospital argued that to increase the vacation entitlement would cause it hardship. It was alleged that there was a nursing shortage in Wawa, and that it would be difficult to schedule nurses for the increased vacation time if ONA's application were successful. The difficulty here is that no evidence of a staffing problem was led by the Hospital. There is simply no evidentiary basis for the argument that there isashortage ofnursesinWawa, and thattherewould be an adverse impactonthe Hospitalshould ONA's application be successful.
- The Hospital also argued that there is a cost for replacing the nurses who would be entitled to take increasedvacationtime. Not only would the Hospital have to pay the replacement nurses, but there would alsobethecostofthepremiumiftheyworkedovertime. While this is no doubt true, there was no evidence
led respecting the anticipated cost of paying replacement nurses as a result of increasing the vacation entitlement of ONA's members, nor what the anticipated effect of that cost would be on the Hospital.
4 ONA's members have taken the position with the Hospital that they wish to receive the increased vacation time as opposed to the cash payment, although there wasevidencethatnotallofthe nurses take thevacationtimetowhichthey are entitled. Their reasons for optingfortheincreasedvacationbenefitare set out below. In essence, they argued that the increased vacation time would assist them in relieving or coping with the stress associated with their work. In turn, the stress is a result of a number of different factors.
5 Ms. Carol Styres, a registered nurse since 1974 and president of the ONA part-time local at the Hospital, testified as to the causes ofsome of the stress felt by nurses at the Hospital. The family lives of thenursesaredisruptedbythefactthattheyworkshifts,weekendsandholidays. She stated that increased vacation time would allow nurses to spend more time with their families.
6Other factors contribute as well. It is apparently difficult for nurses in Wawa to keep abreast of the administrationofnewmedications and the operation of newequipment,althoughthe frequencywithwhich nurses must cope with this problem varies. At times, nursesattheHospitalcareforpatientswho,inother hospitals, would be cared for in specialized units such as cardiac care facilities. There are also occasions, on the night shift for example, when only one nurse is left to care for patients on the ward since the other nurse must care for patients who arrive at the emergency department. Time constraints caused by this situationoftenmeanthatpatient comforting, emotional care and healthteachingonthe wardare notalways provided. Finally, Ms. Styres indicated that nurses are subjecttoverbalabusefrom patients on a regular basis.
DECISION:
1 In the absence of any evidence that amending the compensation paid to the nurses at the Hospital byincreasingtheir vacation entitlement would causethe Hospitalhardship,weare prepared to grant ONA the remedy it seeks in this case.
2 In the end, the evidence before us, which was uncontradicted and credible, leads us to the conclusion that in the circumstances of this case, it is reasonable to adjust the compensation paid to ONA's members atthe Hospitalbyincreasingtheir vacationbenefit tothelevelenjoyedbythe managerofplant maintenance.
3 Accordingly, the Order of the Review Officer dated October 26, 1990 is revoked. Pursuant to subsection 25(2)(g), the Tribunalorders the Hospital to increase the vacation benefit provided to ONA's members to the level provided to the manager of plant maintenance.