OPEHT 1992

The Ontario Nurses' Association (ONA) requested that its pay equity applications against various hospitals be listed for hearing following the release of a related decision.

The respondent hospitals requested that the applications be adjourned sine die to allow for further negotiations on a gender-neutral comparison system.

The Tribunal denied the hospitals' adjournment request, finding no compelling reason to prevent ONA from proceeding.

The Tribunal ordered that the hospitals' cross-applications be listed for hearing alongside ONA's applications and directed the parties to complete their pleadings.

The applicant union filed complaints alleging that the SKEW job evaluation system proposed by the respondent hospitals was not gender neutral and failed to accurately capture and value nursing work.

The Tribunal found that the SKEW system's job fact sheet and valuing tool did not meet the standard of gender neutrality required by the Pay Equity Act, as they failed to make visible and appropriately value the complex skills, effort, responsibilities, and working conditions inherent in nursing.

The Tribunal ordered the parties to negotiate and design a new gender neutral comparison system tailored to accurately capture the job content of the nursing and male comparator job classes in the hospitals.

The Ontario Nurses' Association applied for reconsideration of a previous Tribunal decision and sought remedies for the Employer's failure to comply with an order to negotiate a pay equity plan.

The Employer admitted non-compliance, citing financial constraints.

The Tribunal varied its original order, finding that the Employer's failure to bargain made the previous remedy inappropriate.

The Tribunal directed a review officer to prepare the pay equity plan, starting with the Union's proposed comparison system.

The Tribunal also ordered the Employer to pay compensatory damages, including the costs of pre-testing the system and the review officer's costs in preparing the plan, but declined to state a case for contempt or award legal costs.

One member dissented on the extent of the compensatory damages.

The Ontario Nurses' Association applied to the Tribunal requesting an order that the Brant County Health Unit direct more than one percent of its annual payroll towards pay equity adjustments to accelerate the closing of a large wage gap.

The Tribunal dismissed the application, finding that under section 13 of the Pay Equity Act, it has no discretion to order an employer to spend more than one percent of its payroll per year on pay equity adjustments, except in specific circumstances not present in this case.

The Tribunal directed the employer to post the amended pay equity plan and make adjustments in accordance with the statutory framework.

The applicant employer brought a preliminary motion alleging a reasonable apprehension of bias, arguing that the unexplained resignation of an employer representative in another case suggested a lack of adjudicative independence at the Tribunal.

The majority of the Tribunal dismissed the motion, finding that the circumstances were too attenuated and remote to raise a reasonable apprehension of bias, and that the Tribunal's history demonstrated independent decision-making.

The dissenting member would have found a reasonable apprehension of bias based on the institutional setting and the lack of explanation for the member's resignation.

The applicant union and respondent employer jointly requested that the Tribunal vary a Review Officer's order regarding the use and cost-sharing of a gender-neutral job evaluation system under the Pay Equity Act.

The parties sought to delete the requirement to share costs equally and to specify the use of the SES system.

The Tribunal varied the order as requested, noting that it has jurisdiction to issue consent orders where the requested relief is within its discretion and does not contravene the Act.

The Tribunal also noted that such joint requests could be processed via written submissions to avoid the delay and expense of an oral hearing, provided sufficient evidence and an agreed statement of fact are filed.

The Pay Equity Office (P.E.O.) applied to the Tribunal seeking to enforce a Review Officer's order against the employer and the union.

The employer and the union had previously settled their dispute regarding the pay equity plan and argued that the P.E.O. lacked standing to challenge their settlement or enforce the order.

The Tribunal held that the P.E.O. is not a party to proceedings under subsection 32(1) of the Pay Equity Act and does not meet the test for participation under the Statutory Powers Procedure Act.

The Tribunal concluded that the P.E.O. has no statutory jurisdiction to review settlements or enforce orders in these circumstances, and dismissed the application for lack of standing.

The parties applied to the Tribunal regarding a Review Officer's Order for a pay equity plan for non-union employees of the Hospital.

The parties filed an Agreed Statement of Facts and requested a consent order.

The Tribunal confirmed the order for a single pay equity plan and varied the gender predominance of certain job classes on consent.

However, the Tribunal declined to order that the parties be bound by a re-evaluation process or to appoint a specific Review Officer to act as arbiter, as this would be inconsistent with the Pay Equity Act.

The proceedings were adjourned to allow the parties to resolve their differences.

The employer applied to the Pay Equity Hearings Tribunal objecting to a Review Officer's order regarding the calculation of compensation for female job classes.

The Tribunal held that a shift premium available to male comparators must be provided to female job classes on the same terms, as the female classes' existing shift premium was illusory due to scheduling preconditions.

The Tribunal also found that a paid meal break for female job classes was not a benefit to be included in compensation, as employees remained under the employer's control.

Finally, the Tribunal ruled that the cost of maintaining pay equity and preventing the wage gap from widening cannot be included in the 1% of payroll dedicated to closing the existing wage gap.

The union applied to the Tribunal regarding a Review Officer's order on a pay equity dispute.

The parties disagreed on whether they had previously reached a binding agreement on job evaluation weightings and point totals.

The Tribunal found that the agreement on weightings was binding as it had been ratified by the employer's Board of Trustees, but the point totals were not binding as they had not been ratified.

The Tribunal ordered the parties to determine the final point totals for the disputed job classes before it would decide the issue of comparability.

The Employer applied to the Pay Equity Hearings Tribunal objecting to a Review Officer's order that found three female job classes (Packer, Packaging Machine Operator B, and Sample Room) were of equal or comparable value to three male job classes (Dough Feeder, Janitor, and Receiver).

The Employer alleged the Union failed to bargain in good faith by rejecting the initial joint evaluations, while the Union alleged the Employer intimidated female committee members.

The Tribunal dismissed both preliminary allegations.

On the merits, the Tribunal found that the joint committee's collection of job information was incomplete and its application of the evaluation system was not gender-neutral, as it failed to consistently value skills and effort characteristic of women's work, such as manual dexterity, visual concentration, and multi-tasking.

Applying the evaluation tool to the corrected job information, the Tribunal upheld the Review Officer's findings that the female job classes were of equal or comparable value to the male job classes and ordered the parties to negotiate a pay equity adjustment schedule.

The Tribunal determined how pay equity adjustments should be incorporated into collective agreements between the hospital and the nurses' union.

The Tribunal held that under subsection 9(3) of the Pay Equity Act, all positions in a job class must be adjusted by the same dollar amount, meaning all levels of the salary schedule must receive the adjustment, not just the job rate.

Furthermore, the Tribunal found that the newly negotiated collective agreements were 'relevant' under subsection 13(10) because they had not yet taken the pay equity adjustments into account, and therefore the adjusted rates must be incorporated into them.

The Ministry of Community and Social Services requested a hearing to review an order naming it as the employer for pay equity purposes of employees at the Kingston-Frontenac Children's Aid Society.

The Tribunal examined the relationship between the Ministry and the CAS, focusing on financial control, responsibility for compensation practices, and determination of services provided.

The Tribunal found that the Ministry exercises fundamental control over the CAS's finances, services, and compensation practices, despite the CAS having routine control over day-to-day operations.

Consequently, the Tribunal concluded that the Ministry is the employer for the purposes of the Pay Equity Act and directed the Ministry and the union to negotiate a pay equity plan.