Before : Beth Symes, Chair; Susan Genge and Janet Slone Taylor, Members
Appearances: Judith Killoran, Murray Lapp and Carrie Gallant for the Appliant; E. T. McDermott and
S. Nicholas for Mississauga HydroElectric Commission; BernardFishbein, J.R. Wacheskiand H. Vance for the International Brotherhood of Electrical Workers, Local 636
Cite As: Mississauga Hydro Electric Commission (1992), 3 P.E.R. 28
Standing - Pay Equity Office
The Tribunal concluded that the Pay Equity Office does not have standing to enforce its orders before the Tribunal. The Pay Equity Office is not a party to proceedings in subsection 32(1) of the Act nor does it meetthe testforparticipationcontemplatedbythe Statutory Powers and Procedures Act. The Tribunal rejected the argument that the Pay Equity Office had jurisdiction to review all settlements to ensure compliance with the Review Officer'sorderonthe groundsthatno statutorybasis for such a claim existed indirectcontrastto the provisions of the Human RightsCode requiringsettlementsto be approved bythe Human Rights Commission.
Qualité pour agir - Bureau de l'équité salariale
Le Tribunalaconcluque leBureaude l'équitésalariale n'apas qualitépour faireexécutersesordres devant le Tribunal. Le Bureau de l'équité salariale n'est pas cité comme partie éventuelle aux instances en vertu du paragraphe 32(1) de la Loi et ne répond pas aux exigences de participation envisagées par la Loi sur l'exercice des compétences légales. Le Tribunal a rejeté l'argument que le Bureau de l'équité salariale était compétent pour examiner tous les règlements afin de veiller à ce qu'ils soient conformes à l'ordre de l'agent de révision, pour le motif qu'il n'y avait aucun fondement légal à une telle revendication alors qu'il existe, par contraste, des dispositions dans le Code des droits de la personne visant à exiger que les règlements soient approuvés par la Commission des droits de la personne.
DECISION OF THE TRIBUNAL, JUNE 1, 1992
1The Pay Equity Office ("P.E.O.") applied to the Tribunal for a hearing alleging that the International BrotherhoodofElectricalWorkers,Local636("Union") and the Mississauga HydroElectric Commission ("Hydro") have failed to comply with an Order of a Review Officer dated May 3, 1991.
2The Union and Hydro state that they have negotiated pay equity plans for the bargaining units, that theplanshavebeenpostedand implemented and that there is nothing in dispute between the parties. For different reasons, the Union and Hydro argued that the P.E.O. has no standing to seek enforcement of the Review Officer's Order in this case.
3The Union is certified as the bargaining agent for two bargaining units at Hydro: the "Inside Unit", which consists mainly of female jobs, and the "Outside Unit", which consists mainly of male jobs. There are, separate collective agreements for each bargaining unit and the agreements have different terms and expiry dates.
4The Union and Hydro were required to negotiate in good faith and endeavour to agree on the genderneutralcomparisonsystemand a pay equity plan for each of the bargainingunits[Pay Equity Act, R.S.O. 1990, c. P.7, as amended, ss.14(2)]. The parties negotiated and posted their pay equity plans on February 21, 1990. As there were few male job classes of comparable value in the Inside Unit, some female job classes were compared to male job classes in the Outside Unit.
5After theplanwasposted,HydrogavepayincreasesonApril 1, 1990 to the Outside Unit, pursuant to their collective agreement. Hydro did not give corresponding increases to thefemalejobclassesinthe Inside Unit which had beenfoundcomparabletocertainofthesemalejobclasses. The Union alleged that Hydro had failed to maintain pay equity. The parties were unable to resolve this dispute and the Union applied to Review Services on February 6, 1991.
6The P.E.O. appointed a Review Officer who met with the parties, investigated the complaint, and endeavoured to effect a settlement. No settlement resulted and the Review Officer issued an Order dated May 3, 1991.
7The Order had three parts. The Review Officer formed the opinion that Hydro had failed to maintain pay equity and ordered Hydro to give the female job classes the negotiated increase. The Officer went on to make two orders on issueswhichhadnot been in dispute between the parties. He formed the opinion thatthe annualcollective agreementswhichprovided for percentage increases, between the effective date of the Act and the postingday, wereinviolationofsubsection13(11) ofthe Act, and ordered the Employer to make retroactive pay adjustments on this basis. The Officer also ordered the parties to identify in the pay equity plan all the male comparators for female job classes, whether or not the female job class had received a pay equity adjustment. The parties complied with the last part of the Order.
8Hydro objected to parts one and two of the Order, and on July 4, 1991 requested a hearing before the Tribunal in accordance with subsection 24(6) of the Act.
9Hydro and the Union filed written material and the Tribunal set a date for hearing. Pursuant to its RulesofPractice,theTribunalconvenedapre-hearingconferencetopreparethecasefor hearing. During the course of the pre-hearing the parties advised the Tribunal that they had settled their outstanding issues and asked that the matter be adjourned sine die. Their written request was given to a panel of the Tribunal. Based on the representations of the parties, the Tribunal issued a decision on September 4, 1991 adjourning the matter sine die.
10After that decision, theReviewOfficerformedtheopinionthatthe parties were not complying with his Order. On January 24, 1992 he referred the matter to the Tribunal under subsection 24(5) of the Act.
11Both the Union and Hydro advised the P.E.O. that they had settled their differences, that they were abiding by the terms of their settlement, and that neither of them would be applying to the Tribunal for a hearing. Theyalsosaidthat the P.E.O. had no jurisdiction to enter into an enquiry about their settlement.
12None of the employees affected have objected to the settlement reached between Hydro and the Union and none seek to enforce the Review Officer's Order.
13On March 2, 1992 the P.E.O. applied forahearingbeforetheTribunalallegingthatHydroand the Unionwerenotcomplyingwiththe Order and the Act. The P.E.O. seeks enforcementoftheOrderdated May 3, 1991 through this application to the Tribunal pursuant to subsection 24(5) of the Act.
Issues
- Only one issue need be dealt with in this case: does the P.E.O., in the circumstances of this case, have standing to challenge the settlement reached between Hydro and the Union?
Submissions
1 The P.E.O. states that fairness dictates that it be granted standing to enforce the terms of its Order before the Tribunal. Their position is that subsection 33(1) of the Act makes the P.E.O. responsible for the enforcement of the Act. The P.E.O. statesthatitmustbegivenstandingtoenforceitsOrdersin order to effectively carry out this mandate.
2 Review Officers make Orders as part of the enforcement mechanisminthe Act. The Act provides that a Review Officer may refer the matter to the Tribunal if an employer or a bargaining agent fails to comply with an Order. However, the Act also provides in subsection 22(1) that an employer, the employees or a union may file a complaint that there has been a contravention of "an order of the Commission". Normally, in a unionized setting such as this, if an employer or union failed to comply with anOrder,theotherpartywouldtakecarriageofthematter. That party would file an application for hearing with the Tribunal and would call evidence in order to establish the non-compliance.
3 CounselfortheP.E.O.submitsthatthereisagapinthe Act. They state that if the parties settle their disputefollowinga ReviewOfficer'sorder, and ifthe settlement doesnotabide by the Orderorislessthan is required by the Act, then there is no means of enforcement. In this case, neither Hydro nor the Union are willing to enforce the Order. They are both content with the terms of their settlement. The P.E.O. arguesthatwhereneitherpartyinitiatesa requestforahearingconcerningthe Order, itisthe Office'spublic duty to enforce the Act. It urges the Tribunal to fill the statutory gap and grant the Office standing. [Interprovincial Pipe Line Ltd. v National Energy Board, [1978] 1 RC. 601;1977 CanLII 3163 (FCA), 78 D.L.R. (3d) 401 (Fed. C.A.)]
4 Subsection 32(1) of the Act states:
Where a hearing is held before the Hearings Tribunalor where a review officer investigates for the purposes of effecting a settlement of an objection or complaint, the parties to the proceeding are,
(a) the employer;
(b) the objector or complainant; and
(c)the bargainingagent (ifthe payequityplanrelatesto abargainingunit)or the employees to whom the plan relates (if the plan does not relate to a bargaining unit).
Thesectionsetsoutthepartiesto a Tribunal hearing and aReviewOfficerinvestigation. The P.E.O. is not listed as a party. By drafting the subsection to include both proceedings before the Tribunal and before a Review Officer, it is not surprising that the P.E.O. was not listed as a party. It would not make sense that the P.E.O be listed as a party when the matter is being investigated by a Review Officer. However, this factor does not assist in determining whether the P.E.O. should be given status in this matter.
1 In addition to those persons listed as parties in the statute, it may be that others are entitled to participate under section 5 of the Statutory Powers Procedure Act. Persons who are entitled by law to be parties have the right to be applicants or to be added as parties to a hearing. [Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s.5; Wentworth County Board of Education (1990), 1 PE.R. 132 at p.142; Women's College Hospital (No. 1) (1990), 1 PE.R. 53 at p.66 ] The test for addition is whetherthatpersonissubstantiallyanddirectlyaffectedbytheoutcomeinthecase. In this case pay equity hasbeennegotiatedbetweentheemployerandthebargainingagent. The parties have completed their pay equity plans and have settled the differences between them. None of the employees affected has complained about the settlement. However broadly "interest" were to be defined, it is clear that the P. E.O. is not affected by the outcome of this case and therefore does not have status as a party to bring this application. [Fishing Vessel Owners' Association of British Columbia v Attorney General of Canada (1985),1C.P.C. (2d) 312 (F.C.A.); Re Regional Municipalityof Hamilton-Wentworthand Hamilton-Wentworth Save the Valley Committee, Inc. (1985), 51 O.R. (2d) 33 (Div. Ct.) at p.43]
2 On the other hand, the Act does seem to contemplate situations which would require the P.E.O. to proceed as an applicant before the Tribunal. For example, Review Officers may enter any place at any reasonable time; may request the production ofdocuments;and may question persons on matters related to their duties. [Pay Equity Act, supra, ss.34(3)] It is an offence to hinder, obstruct, interfere with or impede Review Officers in carrying out their duties. [Pay Equity Act, supra, ss.26(1)] Before a prosecution for such an offence may be instituted, the Tribunal must give its consent. [Pay Equity Act, supra, ss.26(4)] Were the P.E.O. to seek the Tribunal's permission to institute a prosecution, arguably it would be so substantially and directly affected by the outcome of the case, that it would have the right to be a party before the Tribunal.
3 In examining the P.E.O.'s contention thatthereisagapintheenforcementprovisionsofthe Act, we reviewed the Pay Equity Act's enforcement sectionand the enforcement schemesofseveralotherstatutes which also govern workplaces in the province.
4 The structure of dispute resolution and enforcement are different under the Pay Equity Act than under these other statutes. In a unionized workplace, the employer and the bargaining agent have a statutory obligation to negotiate in good faith and endeavour to agree on the gender-neutral comparison system and a pay equity plan for the bargaining unit.[Pay Equity Act, supra, ss.14(2)] Following agreement,the planmustbe posted by the employer [Pay Equity Act, supra, ss.14(4)] and is deemed to have been approved by the Commission. [Pay Equity Act, supra, ss.14(5)] Both the employer and the bargaining agent have statutory obligations to examine existing compensation systems and to redress systemic gender discrimination in compensation.[Pay Equity Act, supra, s.4, 5 and 6] The statutory process for implementing pay equity in unionizedworkplaceshasbeenvariously described as pro-active, self-managed, or voluntarist.
5 If disputes arise in a workplace, the assistance of a Review Officer may be sought. The statutory responsibility of a Review Officer is to investigate the complaint and to endeavour to effect a settlement.[Pay Equity Act, supra,ss.23(1)] Counsel for the P.E.O. advises that Review Officers are able to settle 85% of all complaints. In order to be effective in carrying out the very important functions of investigation and mediation, the Act states that Review Officers are not subject to the provisions of the Statutory Powers Procedure Act.[Pay Equity Act, supra, ss.34(4); Cybermedix Health Services (1989), 1 PE.R. 41 at pp.44 - 45]
6 If Review Officers are unable to settle an outstanding issue, they may issue anOrder. [Pay Equity Act, supra, s.24] The Act does not state that Orders of Review Officers are enforceable by the P.E.O., nor by Review Officers, nor that it is an offence under the Act to fail to comply with a Review Officer's Order. However, the Act doesprovideabindingmechanismforresolutionofdisputes. The Act states that anemployerorabargainingagentmayseekahearingbeforetheTribunal. Proceedings before the Tribunal are governed by the Statutory Powers Procedure Act. The decisions of the Tribunal are final and binding for all purposes.[Pay Equity Act, supra, ss.30(1); Re Haldimand-Norfolk and Ontario Nurses' Association (1989), 1 P.E.R. 188 (Div. Ct.) at p.191, 192; affirmed Ontario Court of Appeal] Decisions or orders of the Tribunal may be filed with the Ontario Court (GeneralDivision) and thenareenforceable as decisions or orders of that Court.[Statutory PowersProcedureAct,supra, s.12] In addition, persons who fail to comply with an order of the Tribunal are guilty of an offence and, with the consent of the Tribunal, may be prosecuted. [Pay Equity Act, supra, s.26]
7 This is in marked contrast to other regulatory schemes. For example, employment standards officers have the power to issue orders.[Employment Standards Act, R.S.O. 1990, c.E.14, ss.65(l)(c) ] An employer must comply with the terms of the order. [Employment Standards Act, supra, ss.65(6)] If the employer is dissatisfied with the order, it may apply for a review of the order by way of a hearing. [Employment Standards Act, supra, s.68] The Act expresslystatesthatthe employment standardsofficer is a party to the hearing. [Employment StandardsAct,supra, ss.68(4)]The Employment Standards Act
8 Health and safety inspectors may order an employer to comply with the provisions of the Occupational Health and Safety Act and Regulations. [Occupational Health and Safety Act, R.S.O. 1990, c.0.1, ss.54(1) and s.57] The employer may appeal the order to an adjudicator. [Occupational Health and Safety Act, supra, s.61] The statute states that, at the hearing, the inspector is a party to the appeal. [Occupational Health and Safety Act, supra, ss.61(3)] The Act goes on to state that every personwho fails tocomplywithanorderofaninspectorisguiltyofanoffence.[Occupational Health and Safety Act, supra, ss.66(l)(b)]
9 Human rights officers investigate complaints and try to settle the issues in dispute. [Human Rights Code, R.S.O. 1990,c. H.19] Unlessthe HumanRightsCommissionapproves the terms ofthe settlement, it is not binding. [Human Rights Code, supra, s.43] If a complaint does not settle and goes on to a hearing, the Code states that the Human Rights Commission is a party to a proceeding before a board of inquiry and has carriage of the complaint.[Human Rights Code, supra, ss.39(2)]
10 The system of dispute resolution under thePay Equity Act is significantly different. Given the clear provisions of these other statutes and the quite different enforcement provisions of this Act, we cannot conclude that the Legislature intended the P.E.O. to have standing to enforce its orders in unionized workplaces.
11 Finally, Counsel for the P.E.O. argues that after an Order has been issued, the parties are not free tonegotiateanythinglessthancompliance. Counsel for the P.E.O. stated that it was Office policy to review all settlements reached by the parties during the Tribunalprocessto ensurethatthe terms ofthe settlement complied with the Review Officer's Order and the Act.
12 With respect, the P.E.O has no jurisdiction to review settlements reached during the Tribunal hearing process. If settlements required the approval of the P.E.O., the statute would have said so. The Act has no provision similar to section 43 of the Human Rights Code which states that settlements must be approved by the Human Rights Commission.
13 The Tribunal concludes in this case that there is no gap in enforcing the Act. The employer and the bargaining agent are responsible for redressing systemic gender discrimination in the workplace. In this case, they have completed their pay equity plans, posted them, and implemented the adjustments into the collective agreements. There is no complaint from those persons affected that there has been a failure to meet these obligations. Therefore, we do not grant the P.E.O. standing to enforce the Review Officer's Order of May 3, 1990.