0313-91 Regional Municipality of Peel, Applicant v. Canadian Union of Public Employees, Locals 966 and 2101, Respondents

Before : Raphael Palumbo, Vice-Chair; Susan Genge and Nicole LeClerc, Members

Appearances: J. Paul Wearing for the Applicant; John Elder for the Respondents

Cite As: Regional Municipality of Peel (1992), 3 P.E.R. 191

Job Rate - Benefits

The parties disputed the effect of a shift premium payable to members of the female job classes scheduled to work on a "shift rotation basis" and a paid meal break on the calculation of compensation. The male comparator classes were entitled to a marginally lower shift premium when assigned to work either the evening or night shift. The Tribunal held that the monetary value of a benefit is not the only factor to be considered in determining its value. The availability of the benefit to persons in the job class must also be considered. As no member of the female job class met the requisite pre-conditions for receipt ofthe shift premium, in contrast to the practice for the male comparators, it had no value for purposes of calculating the compensation paid to the female job classes. The Tribunal found that during the meal break the employeesremainedsubjectto the directionand controlofthe employer,wererequiredtoremainavailable for work, and the break period was included in calculation of hours of work. In these circumstances the break was determined not to be a benefit for the purposes of calculating compensation.

Maintaining Pay Equity

The 1% of annual payroll is dedicated solely to making adjustments to close the wage gap existing as of the effective date. The cost of maintaining pay equity and ensuring the wage gap does not widen cannot be included in the 1% and must be funded separately.

Taux de catégorie - Avantages

Les parties contestent l'effet sur le calcul de la rétribution d’une pause repas payée et d’une prime de quart payable aux membres des catégories à prédominance féminine. Les catégories à prédominance masculine utilisées à des fins de comparaison avaient droit à une prime de quart légèrement moins élevée pour les quarts de soir ou de nuit. Le Tribunal a statué que la valeur monétaire d' un avantage n' est pas le seul facteuràprendreenconsidérationlorsquel'on détermine sa valeur. Il faut aussi prendre en considération la possibilité pour les personnes dans cette catégorie d'emplois de profiler de cet avantage. Étant donné qu'aucun membre de la catégorie d'emplois à prédominance féminine ne remplissait les conditions préalables requises pour recevoir la prime de quart,par oppositionà lapratique quivaut pour lacatégorie d' emplois à prédominance masculine utilisée à des fins de comparaison, cela n'avait aucune valeur aux fins du calcul de la rétribution des catégories d'emplois à prédominance féminine. Le Tribunal a conclu que pendant la pause repas, les employées restaient sous les ordres de l' employeur, devaient être disponibles pour travailler et que la période de pause était comprise dans le calcul des heures de travail. Dans ces circonstances, il a été déterminé que la pause ne constituait pas un avantage aux fins du calcul de la rétribution.

Maintien de l'équité salariale

La questionétait de savoir sil'onpouvait inclurelecoût dumaintien de l'équité salariale dans la somme qui représente 1% de la masse salariale disponible pour les rajustements annuels au titre de l' équité salariale. Le Tribunal a conclu que la somme qui représente 1% de la masse salariale est consacrée exclusivement à combler l'écart salarial qui existe à la date d'entrée en vigueur. Il faut financer séparément le coût du maintien de l'équité salariale et les mesures prises pour s'assurer que l'écart salarial ne se creuse pas.

DECISION OF THE TRIBUNAL, OCTOBER 15, 1992

1. The evidence in this case was presented entirely by way of an Agreed Statement of Facts which in part provided as follows:

1TheApplicant,theRegionalMunicipalityofPeel,isa public sector employer with responsibilityto post five (5) pay equity plans referable to six (6) bargainingunits and one (1) non-union employee group.

2The Canadian Union of Public Employees Local 966 is the exclusive bargaining agent for employees of the Applicant, employed at the Peel Manor Home for the Aged.

3The Canadian Union of Public EmployeesLocal2101is the exclusive bargaining agent for employees of the Applicant, employed at the Sheridan Villa Manor Home for the Aged.

4The Applicant is negotiating one (1) plan with the Canadian Union of Public Employees to govern both the respondent's Locals 966 and 2101.

5The terms and conditions of employment for the Applicant's service workers employed at Peel Manor Home for the Aged and Sheridan Villa Home for the Aged are recited in Collective Agreements between the Regional Municipality of Peel and the Canadian Union of Public Employees and its Locals 966 and 2101 ...

6Through a memorandum dated December 14, 1989 the parties agreed to the gender-neutralcomparisonsystemand positionanalysisquestionnairetobeutilized for evaluating all job classes as well as the factor weightings to be applied.

7The parties have identified and agreed upon the female dominant job classes together with the appropriate male comparator job classes.

8In respect of the plan governing employees of Locals 966 and 2101, the female dominant job classes and the corresponding male comparator job classes are identified in a memorandum signed by the parties and dated April 11, 1991...

9In order to determine whether adjustments in pay must be made the parties have undertaken an analysis of the total compensation of the female dominant job classes which may be subject to adjustment and of the male comparator job classes.

10Respectingtheplangoverning employeesemployedattheApplicant'sHomesfor the Aged (Locals 966 and 2101), the partieshave agreedthattotalcompensation

means hourly rate and benefits as defined in the respective Collective Agreements atArticle 13 -Paid Holidays,Article 14 -VacationwithPay, Article 16 -Welfare Benefits, Article 17 - Hours of Work, and Article 18 - Classifications and Rates of Pay.

2. The parties dispute the following:

1 the calculation of the evening and night shift premium to which the female job classes are entitled under the Collective Agreements referrable to Locals 966 and 2101, and to which the comparable male job classes are entitled under Local 3162's Collective Agreement;

2 whether the paid meal break for the female job classes is a benefit which must be included in the job rate of the female job classes;

3 whethercompensationadjustmentsmadetocorrectthewideningofthewage gap are to be included in the calculation of the one per cent of payroll or the amount required to achieve pay equity, which must be made available each year by the employer to narrow the size of the wage gap.

3. The Review Officer appointed following a complaint to the Pay Equity Commission ordered that:

1 the evening and night shift premium enjoyed by the male comparator job classes is a benefit which is not available to the female job classes, and must be included in the compensation comparisons;

2 an evening and night shift premium of $0.42 per hour with no requirement to be scheduledona shift rotationbasis isto be providedto employeesinthe female job classes on the same basis as it is available to incumbents in the male comparator job classes;

3 thepaidmealbreak is not a benefit to be includedinthejobrateofthefemalejob classes;

4 anycompensation adjustments made to correct the widening ofthewagegapare paid to regaincompliancewithsubsections 13(11) and7(1)ofthe PayEquityAct,

R.S.O. 1990 c. P.7 (the "Act").

TheApplicantRegionalMunicipalityofPeel("Peel")objectedtothisOrder. The Canadian Union of Public Employees and its Locals 966 and 2101 ("CUPE") urged the Tribunal to dismiss this Application.

1. The Shift Premium

4. The collective agreements respecting employees in CUPE Locals 966 and 2101 contain a clause which entitle employees in the female job classes to a shift premium. It provides:

17.10 Employees required to work on a shift rotation basis shall receive a shift premium of 450 per hour for regularly scheduled afternoon and night shift hours worked. An

employee shall be considered to be working on a shift rotation basis if he/she rotates through a regularly recurring sequence of day, afternoon and night shifts.

In order to be entitled to the shift premium of 45 cents per hour, an employee must be scheduled to work "onashiftrotationbasis"asdefinedinArticle17.10. Employees who work a scheduled afternoon or night shift do not receive a shift premium unless they are scheduled to work on the shift rotation basis. The evidencedisclosedthatwhile some employeesinthe bargainingunitsrepresentedbyLocals 966and 2101 are normally scheduled to work day shift and night shift or day shift and afternoon shift, no employee is scheduledtoworkonashiftrotationbasis. The result is that no employee in these bargaining units receives the 45 cent shift premium.

5. The male comparator job classes are entitled to a shift premium pursuant to provisions contained in the Collective Agreement between the Regional Municipality of Peel and the Canadian Union of Public Employees and its Local 3162. The relevant provisions are:

28.02 The normal work week shall consist of five (5) consecutive working days. The hoursofworkshallbe forty(40) hoursper week (8 hoursper day) except for Engineering Services Division employees which shall be thirty-seven and one-half (37 1/2) hours per week (7 1/2 hours per day). Most employees shall normally be scheduled on a Monday to Friday work week.

28.03 The normalhoursofwork shallbescheduledbetween7:30a.m. and 5:00p.m. with a one-half (1/2) hour lunch period.

28.04 After notification of the Union, the employer shall have the right to establish shift hours other than those set out above, it being understood that such shift would be established on the basis of eight (8) hours or seven and one-half (71/2) hours daily, for a five(5) day work week. No shifts shall be established under thissectionunlessthework load indicates that there is work for a minimum period of two (2) weeks. The shift premium shall be forty-two (42) cents per hour for the afternoon and night shift. A minimum of five (5) days notice will be given in advance of establishing a new shift.

Article 28.02 defines a normal work week in terms of a number of consecutive working days. Article

28.03 defines the normal hours of work. Pursuant to Article 28.04 the employer is permitted to alter the normal work week as defined in Articles 28.02 and 28.03 provided certain conditions are met. The employer resorts to Article 28.04 during winter months for snow removal. In addition, this article is activated by the employer to facilitate the accomodation of the public on nights and weekends at the Regional landfill site.

6. The shift premium is paid to classifications who are assigned to a second shift. Examples of the classifications so assigned include crewpersons if upgraded to truck driver at snow removal periods (November 1 to March 15) and truckdriver II at snow removal periods. There are others as well. In addition, the employer has the right to assign any of the classifications in Local 3162's bargaining unit to work afternoon or evening shifts. When the employer does so, the shift premium provided for in Article

28.04 is paid. In order to be entitled to a shift premium under Article 28.04, an employee need only be scheduled toworkonanafternoonoranightshift. There is no requirement that an employee be scheduled to work on a shift rotation basis to be paid the shift premium.

1 The employer submitted that the plain, ordinary language of the collective agreements created a superior shift premium in favour of the female job classes in the amount of 3 cents per hour. That difference, it was argued, must be taken into account when assessing the total compensation of both the female and male comparator job classes. The employer further argued that it was irrelevant to take into account the frequency of the receipt of the shift premiums by either the female or male job classes. It was urgeduponus that the important consideration is notwhatthe employeereceivesbut ratherthe availability of the benefit to the job classes.

2 Is it reasonable to compare solely the dollar amount of the shift premiums in order to determine the monetary value of the benefit? We think not. Is it reasonable to maintain that so long as the shift premiums areavailable to the female and male comparator job classes through the inclusionofshift premiumclauses in the collective agreements, one need not consider the effect of the pre-conditions embodied in those clauses in assessing the value of the shift premiums on total compensation? Again, we think not.

3 Looking solely at the monetary value of the shift premium is not sufficient. It does not tell the entire story. The payment of the benefit is clearly linked to the different pre-conditions found in the collective agreements covering the female and male job classes. Without reference to those pre-conditions one cannot determine whether the availablilty of the shift premium benefit for the female job classes is largely illusory.

4 Employees in the male comparator job classes are entitled to a shift premium of 42 cents per hour whenever they are required to work an afternoon or night shift. The payment of the benefit is tied to working one of these shifts. In contrast, the shift premium is only paid to employees in the female job classeswhenworking on afternoon or night shifts is part of a regularsequenceofday, afternoonand night shifts. Without working that sequence of shifts, the employees are not entitled to the benefit, and it is therefore not paid. The evidence clearly establishes that no employee in the female job classes represented by CUPE Locals 966 and 2101 is scheduled to work on ashift rotationbasis as defined in Article 17.10 of the relevant collective agreements. Therefore, no employee in those job classes is paid the 45 cent shift premium. How, then, can it be said that the benefit is paid or even available to those job classes?

5 There is no dispute between the parties that the shift premium benefit falls within the definition of compensation under the Act. Pursuant to subsection 1(1) of the Act compensation is defined to mean

... all payments and benefits paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount;

The parties have also agreed upon the female dominated job classes and their appropriate male comparators. They must now determine what the compensation is for these female and male comparator job classes. In order to do this they must take into account the shift premium benefit in the calculation of compensation paid to these job classes.

1 In our view, the shift premium is paid for work performed. Its payment is not contingent on or variable according to any other circumstance. It is an enhanced wage for work performed during certain hours. The value ofashiftpremiumshouldbeincludedinthecalculationofcompensation paid both to the female and male comparator job classes. In this case, the male comparator job classes receive the shift premium while the female job classes do not. Therefore, parties must calculate the vaue of the shift premium in the collective agreement covering the male comparator job classes and include it in the calculation of compensation for those male job classes. The valueoftheshiftpremiuminArticle17.10 of the collective agreements covering the female job classes inCUPELocals 966 and 2101 is essentially zero.

2 As we have noted, the Review Officer ordered that "an evening and night shift premium of $0.42 per hour with no requirement to be scheduled on a shift rotation basis is to be provided to employees in the female job classes on the same basis as it is available to incumbents in the male comparator job classes." We agree. Since the various female and male job classes in CUPE Locals 966, 2101 and 3162 have been found to be of equal or comparable value, the shift premium benefit ought to be available and paid, retroactive to January 1, 1990, the mandatory and first adjustment date under the Act, to the female job classes on the same terms as those provided to the male job classes.

3 In Lady Dunn General Hospital (1991), 2 P. E. R. 168,itwasfoundthatthevacationentitlement for the nurse job class and the manager of plant maintenance was different. The service requirements entitling the nurse and manager of plant maintenance job classes to vacation were different, even though the parties had agreed that the work of the two job classes was of equal or comparable value. For example, for the nurse job class to be entitled to four weeks of vacation, three years of service were required. The manager of plant maintenance job class was entitled to four weeks of vacation after one year of service. In order to achieve pay equity, the Tribunal ordered the employer to increase the vacation entitlementofthenursejobclasstothe level enjoyed bythemanagerofplantmaintenance. Essentially, the service requirements were equalized,resultinginthe vacationbenefit beingavailable onthe same terms for both job classes.

4 Similarly, the female job classes in Locals 966 and 2101 should enjoy the shift premium on the same terms as their male comparator job classes in Local3162. That is, the shift premium of 42 cents per hour should be available, retroactive toJanuary1, 1990, to the female job classeswhetheror not they work on a shift rotation basis. This shift premium should then be taken into account when calculating the compensation paid to the female job classes.

5 We note the employer's concern that as a result of the Review Officer's Order the female job classes in Locals 966 and 2101 would be entitled not only to the shift premium of 45 cents per hour under the collective agreements referrable to those two Locals, but also to the 42 cents per hour shift premium enjoyed by the male comparator job classes. We do not believe that this will be a problem as Article

17.11 of the new collective agreements referrable to Locals 966 and 2101 providesthat"inno event shall overtime or premium compensation be duplicated, compounded or pyramided."

2. The Paid Meal Break

17. The collective agreements respecting employees in Locals 966 and 2101 contain a provision for a paid meal break for the female job classes. Article 17.01 of the collective agreements provides:

17.01 The normal work period shall be ten (10) eight (8) hour shifts to a total of eighty

(80) hours within a fourteen (14) calendar day period inclusive of two (2) fifteen (15) minute rest periods and a thirty (30) minute meal period. The shift starting and stopping times shall be arranged by the Employer. It is understood that employees must be available for work if and when called upon during the paid meal period.

Employees must be available for work during the paid meal break. If an employee wishes to leave the premises,she mustobtainthe permissionofher supervisor and must punch out on leaving and punchinon returning. The employee is not paid for the time between punching out and punching in. Employees are not required to punch out during their meal break unless they are leaving the premises.

1 In contrast, the collective agreement respecting employees in the Local 3162 bargaining unit, does notgive employeesapaid mealperiod,and they are not required to be available for workduringtheir half hour lunch period.

2 The issue to be decided is whether the paid meal break is a benefit which must be included in the calculation of the compensation paid to the female job classes in Locals 966 and 2101.

3 Far from being a benefit, the paid meal break is part of the normal80 hour work period as set out in article 17.01 of the collective agreements referrable to Locals 966 and 2101. It has no impact on the rate of compensation paid to the female job classes over and above the regular compensation for a full 80 hour work period. The meal break period is simply included in the 80 hour work period. Nothing in the collective agreements characterizes the paid meal period as a benefit to be included in the calculation of compensation for the female job classes.

4 As we have notedpreviously,article28.03ofthecollectiveagreementforthemalecomparator job classes establishes an eight hour work day (7:30 a.m. to 5:00 p.m.) with a one-half hour lunch period. Unlike the meal break for employees in Locals 9-66 and 2101, this lunchperiodis clearly not part of the regular work day.

5 Arbitral jurisprudence has dealtwiththeissueofwhetherlunchbreakswereto be considered "time worked". In Re Town of Midland and Ontario Public Service Employees Union, Local 328 (1987), 1987 CanLII 8845 (ON LA), 31 L.A.C. (3d) 251 theunioncomplainedaboutapolicy respecting lunch breaks. Outside employees of the public works department ofthe TownofMidland were entitled to a one-half hour unpaid lunchbreak. The employer introduced a policy, the effect of which was to prohibit employees who were engaged in snow removal operations from returning to the shop during the lunch breaks unless they were working in the vicinity of the shop. The issue in the case was whether or not employees who were prohibited from

returning to the shop during snow removal operations were entitled to be paid overtime for the period of the lunch break. In holding that they were so entitled, the arbitration board held at page 255 that:

The evidence unequivocally establishes that the employees remained under the direction and control of the employer for the period of the lunch break even if their responsibilities did not continue... As the employees were not free to utilize their lunch period as they wished, the lunchperiodmustbe considered to be "time worked" for the purposes of the overtime provisions of the collective agreement... so long as the employer restricts the manner in which the employees may utilize their lunch breaks, the employees are subject to the employer's direction and entitled to payment at overtime rates...

In Re Religious Hospitallers of Hotel-Dieu of St. Joseph of the Diocese of London and Service Employees' Union, Local 210 (1983), 1983 CanLII 4813 (ON LA), 11 L.A.C. (3d) 151, the arbitration board at page 158 held that:

Although the matter is not free from doubt, it is generally agreed that time worked may include time during which an employee is under the direction and controlof the employer and during which the employee's responsibilities continue even though the employee may not be performing services for the employer... In the instant case the employees also are required to remain on the premises during their lunchperiodinorder to be available to be recalled to duty in case of an emergency... the employees are not free to utilize their lunch periods as they please. Nor can they leave the premises at will (although permission to leave may be granted). Most importantly, there is no right to leave the premises. Under these circumstances, since the employees are subject to the control and direction of the employer throughout their lunch period, and since their responsibility to the employer continues, the lunch period must be considered to be "time worked" for the purposes of the overtime provisions of the collective agreement.

23. It is our view that the meal break period for employees in the female job classes in Locals 966 and 2101 must be considered time worked, as employees are subject to the control and direction of the employer. Article 17.01 clearly provides that employees must be available for work during this time. We hold that the paid meal break is a not benefit that must be included in the calculation of compensation for these job classes.

3. 1 % of Payroll

1 Finally, an issue has arisen concerning what may be included in the calculation of the one per cent ofpayrollor the amount requiredto achieve payequity(subsection13 (4) of the Act) whichmustbe made available each year to narrow the wage gap set out in the pay equity plan. The employer submitted that the cost of maintaining pay equity is to be included in the one per cent of payroll available for pay equity adjustments annually. CUPE disagreed.

2 Subsection 13(11) of the Act provides:

Every employer who prepares and implements a pay equity plan under this Part shall be deemed not to be in contravention of subsection 7(1) with respect to those employees covered by the plan or plans that apply to the employees but only with respect to those compensation practices that existed immediately before the effective date.

Essentially, this provision provides that a wage gap betweenfemale and male comparatorjob classes that arose as a result ofcompensationpracticesthatexistedprior to January 1, 1988, the effective date of the Act, isnota contraventionoftherequirementto establishpayequitypursuant to subsection7(1)ofthe Act. TheReviewOfficerheldthatanychange incompensationpracticesthatoccursafterJanuary1,1988 which has the effect of increasing the size of the wage gapisa contraventionofthe Act whichmustbe corrected. Therefore,sheheld,anycompensationadjustmentsmadeto correctthewideningofthewagegaparepaid to regain compliance withsubsections 13(11) and 7(1). Therefore, they are not part of the calculation of the 1% of payroll or amount required to achieve pay equity, which must be made available each year to narrow the size of the wage gap set out in the pay equity plan.

1 The wage gap, identified as of January 1, 1988, may widen for a number of reasons. In any given year,the effective date ofeconomic increasesto female and male comparatorjob classesmaybe different, resulting in a widening of the gap. As well, percentage increases under collective agreements may result in higher increases for the male comparator job rates than for the female job classes since the latters' job rates are lower. In any event, the positionoftheemployeristhatanypaymentsrequiredtoensurethatthe wage gap is not widened is part of the one percent ofthe employer'spayrollwhichisto be made available to achieve pay equity.

2 We agree with thepositionoftheReviewOfficerthat compensation payments made to correct the widening of the wage gap are not part ofthe 1% ofpayrollwhichmustbe madeavailable bythe employer to narrow the size of the wage gap identified in the pay equity plan. We agree for the following reasons.

3 Pursuant to section 12 of the Act every employer must, using a gender neutral comparison system, compare the female jobclassesineach establishment with the male job classes to determine if pay equity exists for each female job class. Pursuant to subsection 6(1), pay equity exists 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 inthesameestablishmentwherethe work performedinthe two job classesisofequalor comparable value.

4 Subsection 13(1) requires thatpayequityplansmustbepreparedwhichwillprovideforpayequity. Subsection 13(2)(d) provides that the pay equity plans must describe how compensation in those female jobclassesforwhichpayequitydoesnotexistwillbeadjustedtoachievepay equity. This provision refers to adjustments which must be made to the job rates of female job classes identified under the pay equity plan. For the purposes of this employer, those adjustments are identified by reference to the wage gap which exists as of January 1, 1990.

30. Subsection 13(4) provides:

(4) The first adjustments in compensation under a pay equity plan are payable as of the date provided for in the clause (2)(e) and shall be such that the combined compensation payable under all pay equity plans of the employer during the twelve-month period following the first adjustments shall be increased by an amount that is not less than the lesser of,

(a) 1percentoftheemployer'spayroll during thetwelve-monthperiodprecedingthe first adjustments; and

(b) the amount required to achieve pay equity.

Subsection 13 (5) provides that adjustments are to be made in compensation under a pay equity plan on each anniversary ofthefirstadjustmentsincompensation. The combined compensation payable under all pay equity plans of the employer is to be increased byanamount thatisnotlessthanthe lesser of one per cent ofthe employer'spayrollduringthe precedingtwelve-monthperiodorthe amount requiredto achieve pay equity.

1 In our view, references in section 13 to adjustments to compensation are referrable to amounts identified under the pay equity plans of the employer. It is the pay equity plans which identify the wage gaps in each case, and the adjustments required to eliminate them. The employer's obligation is to make adjustments identified under the pay equity plans, which have the effect of narrowing the wage gaps, as identifiedunderthosepayequityplans, existing as of January 1, 1990. Theamountoftheadjustmentsare limited to not less than 1% of the employer's payroll or the amount required to achieve pay equity. The compensation adjustments of 1% of payroll can only be made up of those amounts identified as required to close the wage gaps, not of those amounts which are required to ensure the gap is not widened. This interpretation is also supported by the direction in subsection13(4) whichprovidesfor adjustments in the amount of not less than 1% of the employer's payroll. If some proportion of the 1% were to be paid to cover any widening of the wage gap, then less than 1% ofpayrollwould remainforadjustments identified in the pay equity plan. This cannot be the intention of the statute.

2 Subsection 13(4) cannot be taken to mean that adjustments paid out include payments for situations in which the wage gap is widened after the pay equity plan is established, since the objective of the pay equity plan is to identify the wage gap as of January 1, 1990, and to correct the wage discrimination or wage gap identified as of that date. Thepayequityplancouldnotpossibly deal with or take into account all of the potential future increases which the male comparator job classes may receive which may widen the wage gap. Therefore, the only amounts included in the 1% of payroll which must be paid out under section 13 are those which must be paid to reduce the wage gap identified under the pay equity plan.

3 What then are the obligations of the employer where the wage gap is widened? As we have noted, the wage gap cannot be increased. The employer is obligated to ensure that where it is widened it must be corrected. We agree with the Review Officer that this is a separate obligation from that required under subsections 13(4) and (5) to pay out an amount equal to 1% of payroll or an amount required to achieve pay equity.

4 The provisions of Part III of the Act support this view. Pursuant to section 18 of the Act, Part III onlyappliesto employersinthe privatesectorwho,ontheeffective date, employmorethannine employees and fewer than 100 employees. Subsection21(1)excludestheapplicationofsubsections7(1) and (2) to small private sector employers in that they can maintain compensation practices which existed in the employer'sestablishment immediatelybefore the effective date until the relevant anniversarydates setout. It also provides, for those employers, that until the relevant anniversary date, a compensation change that is the same in percentage terms for female job classes and male job classes in the establishment is deemed not to be a contravention of subsections 7(1) and (2), even though the change is different in dollar terms for a female job class than for a male job class.

5 What subsection 21(1) essentially does is allow small private sector employers to widen the gap between female and male comparator job classes until certain specifed anniversary dates, and this is deemed not to be a contravention of subsections 7(1) and (2). Since this is the only group of employers covered, the implication is that for all other employers, including the public sector employer before us, subsections 7(1) and (2) do not permit a widening of the gap. Therefore, where a widening of the gap occurs, employers are obligated by subsections 7(1) and (2) to correct it, thereby complying with those provisionsaswellassubsection13(11). This is a separate obligation from that imposed under subsections 13(4) and (5) which deal specifically with adjustments to be paid out to narrow the wage gap identified under pay equity plans.

6 We find, therefore, that compensation adjustmentsmadetocorrectthewideningofawagegap are made pursuant to the employer's obligation under subsections 7(1) and (2) and 13(11), and are not to be includedinthe 1% of payroll or the amount required to achieve pay equity which must be made available by the employer to reduce the size of the wage gap and achieve pay equity.

Order

1 The value of the shift premium paid to the male comparator job classes pursuant to the collective agreement between Peel and CUPE Local 3162 must be included in the calculation of compensation for those job classes. The value of the shift premium provided for in Article 17.10 of the collective agreements respecting employees in CUPE Locals 966 and 2101 is zero.

2 The female job classes in Locals 966 and 2101 are to receive an evening and night shift premium of 42 cents per hour, retroactive to January 1, 1990, on the same basis as it is available to their male comparator job classes. The value of this shift premium must be included in the calculation of compensation for the female job classes.

3 The paid meal break enjoyed by the female job classes in Locals 966 and 2101 is not to be included as a benefit in the calculation of compensation for these female job classes.

4 Adjustments made to correct the widening of the wage gap are not to be included in the calculation of the one percent ofpayrollorthe amount required to achieve pay equity which must be made available by the employer annually.

5 The Order of the Review Officer is confirmed. The Application is dismissed.