Ontario Nurses' Association v. Brant County Health Unit, 1992 CanLII 4704

0342-92 Ontario Nurses' Association, Applicant v. Brant County Health Unit, Respondent

Before : Janis Sarra, Vice-Chair; Sharon Laing and Geri Sheedy, Members

Appearances: Mary Cornish, Jan Davidson, Suzanne Lopez, Cindy Forster, Barbara Findley and Pat Mee for the Applicant; James Heather and Sandra Wilson for the Respondent

Cite As: Brant County Health Unit (1992), 3 P.E.R. 214

Adjustments

The Tribunalwasasked to consider whether it had the discretion to order more than1% ofannualpayroll be directed toward pay equity adjustments. The Act specifies when and in what circumstances an employer can be required to spend more than 1% of payroll per year on pay equity. The Tribunal determined that it had no discretion to accelerate pay equity adjustments except in the circumstances contemplated by the Act. The Application was dismissed.

Rajustements

On a demandé au Tribunal d' examiner s' il avait le pouvoir de demander que plus de 1% de la masse salariale soit affectée aux rajustements au titre de l'équité salariale. La loi stipule à quel moment et dans quellescirconstancesonpeut demanderà unemployeur de verser plus de 1% de la masse salariale paran autitredel'équitésalariale. Le Tribunal a statué qu'il n'avait pas le pouvoir d'accélérer les rajustements au titre de l'équité salariale, sauf dans les circonstances que la loi envisage. La demande a été rejetée.

DECISION OF THE TRIBUNAL, NOVEMBER 18, 1992.

1The only issue before us is whether theTribunalhasthediscretiontoordermorethanone percent of payroll be directed towards pay equity adjustments.

2This case involves the pay equity plan for the bargaining unit represented by the Ontario Nurses Association ("the Union") at the Brant County Health Unit ("the Employer"). The bargaining unit has six femalejobclassesandnomalejobclasses. With the assistance ofaReviewOfficer,thepartieswereable to agreeuponthe definitionofemployerand establishment for pay equity purposes, as well as agree upon most components of the pay equity plan, including the appropriate male job classes to be used for comparison purposes. The parties also agreed upon the wage gap to be remedied for each job class, the issueofretroactivity,andascheduleofadjustmentsfor the first three years of the plan. Thepartiessigned a memorandum of agreement to this effect on September 20, 1991 and continued to bargain the outstanding issues including the full schedule of adjustments to be included in the plan.

3. These negotiations broke down in April 1992 and each party forwarded its proposed pay equity plan to the Review Officer. The Officer subsequently issued an order dated May 29, 1992, directing the parties to post a pay equity plan pursuant to subsection16(2)of the Pay Equity Act, R.S.O. 1990 c. P-7 , and

ordering the Employer to pay the already agreed upon pay equity adjustments for 1990, 1991 and 1992 within 30 days. The Officer declined to order a schedule of payments, and instead directed the parties back to the negotiation table.

3The Employer complied with the Officer's Order by posting the Officer's Order on June 5, 1992 and paying the employees the amounts owing to date. The parties were in agreement upon the amount of pay equity adjustments still outstanding. They are as follows:

Female Job Class Hourly amount owing at January 1, 1993

Clinic Nurse 1.09 Case Manager Nurse -RN 4.90 Case Manager Nurse -Diploma 4.36 Case Manager Nurse -B.ScN. 4.19 Public Health Nurse -Diploma 4.36 Public Health Nurse -B. ScN 4.19

These amounts were calculated by taking the wage gap identified for each job class at January 1, 1990, minus the adjustments already paid for the years 1990, 1991 and 1992.

1 Both parties took the position that the officer should have ordered the entire schedule of pay equity adjustments when she ordered the plan to be posted. They jointly asked the Tribunal to exercise its jurisdictionto varythe order and direct a schedule ofpayequityadjustments,howevertheydisagreeupon what that schedule should be.

2 The Employer agreed not to pursue an argument that further collective bargaining increases reduce anamount owingtoemployees under a schedule ofadjustmentsina payequityplan, and the partiesasked that the Tribunal's order reflect this. The partiesadvisedtheTribunalthat,asofthe end of 1992, all other pay equity adjustments in this establishment have been completed, and thus the entire one per cent of payroll dollars can be directed towards to pay equity adjustments for this bargaining unit.

3 The Applicant Union submits that the Tribunal has a discretion to order more than one percent of payrollinanannualadjustment. The Union did not however, refer to any specific authority in the Act which gives the Tribunal this discretion. In this case, the Union submits that the Tribunal should exercise this discretion because the size of the wage gap to be rectified is large and the bargaining unit members should not be made to wait unnecessarily to achieve pay equity. The Union further submits that the last set of adjustmentsshouldbeonJanuary1,1994. This would be five years from the first set of wage adjustments. The schedule it requests is as follows:

Union Proposal

January 1, 1993 January I, 1994

Clinic Nurse 1.09 ------­Case Manager Nurse - RN 2.45 2.45 Case Manager Nurse - Diploma 2.18 2.18 Case Manager Nurse - B.ScN 2.10 2.09 Public Health Nurse- Diploma 2.18 2.18 Public Health Nurse - B.ScN 2.10 2.09

8. The Employer submits that the Act setsout the statutoryframeworkforpay equity adjustments. This includesthe requirement to payone percent of payroll inpayequityadjustmentseachyearuntilthe seventh anniversary of the effective date of the statute, at which time public sector employers are required to pay anypayequity adjustments remaining. The Employer submits that it cannot be directed to paymorethan one percent of payroll prior to January 1, 1995. The Employer submits the adjustments should be as follows:

Employer's Proposal*

Jan. 1, 1993 Jan. 1, 1994 Jan.1, 1995 Clinic Nurse .51 .58 -------­Case Manager Nurse - RN .50 .60 3.80 Case Manager Nurse - Diploma .50 .60 3.26 Case Manager Nurse - B.ScN .50 .60 3.09 Public Health Nurse - Diploma .50 .60 3.26 Public Health Nurse - B.ScN .50 .60 3.09

• These amounts would be subject to final revision once payroll figures are available at year end.

1 Having regard for theevidenceandsubmissionsinthiscase, we accept the Employer's position with respect to the schedule of adjustments to be posted in the pay equity plan.

2 Section 13 sets out the framework for pay equity adjustments. Subsection 13(2)(d) requires that wherepayequity does not exist, the pay equity plan shalldescribehowcompensationinthosejobclasses will be adjusted to achieve pay equity.

3 In the context of public sector employers, as in this case, subsection 13(2)(e) specifies that the date forthefirstadjustmentswillbeJanuary1,1990. Here, the parties already agreed upon, and the Employer has paid, the pay equity adjustments for the years 1990, 1991 and 1992.

4In deciding whether the Tribunal has the discretion to order the Employer to pay more than 1 % of payroll with respect to the years following the 1992 adjustment, we find the Act is clear in directing how payroll dollars are to be expended to achieve pay equity.

Section 13 provides:

(4) The first adjustments in compensation under a pay equity plan are payable as of the date provided for in 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'spayrollduringthetwelvemonthperiod preceding the first adjustments; and

(b) the amount required to achieve pay equity.

(5) Adjustments shall be made in compensation under a pay equity plan on each anniversaryofthefirstadjustmentsincompensationunderthe planand shallbe suchthat during the twelve monthperiodfollowingeachanniversarythe combinedcompensation payable underallpayequityplans ofthe employer shall be increased by anamount that is not less than the lesser of,

(a) 1 per cent of the employer's payroll during the twelve-month period preceding the anniversary; and

(b) the amount required to achieve pay equity

(6) Except for the purpose of making retroactive adjustments in compensation under a pay equity plan or unless required to do so by an order described in clause 36(g), nothinginthis Actrequiresanemployertoincreasecompensationpayable underthe pay equity plans of the employer during a twelve-month period in an amount greater than 1 per cent of the employer's payroll during the preceding twelve-month period.

(7) Notwithstanding subsection (6) pay equity plans inthe public sector shall provide for adjustments in compensation such that the plan will be fully implemented not later than the seventh anniversary of the effective date.

13. Thus, for a public sector employer, the first adjustments for pay equity must be made on January 1, 1990, and adjustments are to continue each year until the seventh anniversary of the effective date of the Act, or until pay equity is achieved. Subsections 13(4) and (5) provide that the Employer must expend either one per cent of payroll or the amount required to achieve pay equity, whichever is less. Subsection 13(7) specifies that the adjustments forpayequityplans inthe public sector shall be fully implemented not later than January 1, 1995. In our view, the Act was crafted to provide certainty to parties in setting the amount of payroll to be directed towards pay equity. While there is nothing in the Act which prohibits an

employer from spending more than one per cent of payroll, thereisno obligationuponan employer to do so.

2 We find no merit in the Union's assertion that the Tribunal can order more than one per cent of payroll to be directed towards pay equity in this case. Subsection 13(6) clearly specifies that except for the purpose of making retroactive adjustments or for the purpose of a regulation under subsection 36(g), an employer cannot be required to spend more that one per cent per year on pay equity. Neither circumstanceoccursinthiscase. Consequently, we find the Tribunal has no discretion to order adjustments totaling greater than one per cent of the Employer's payroll.

3 Therefore, the Tribunal dismisses the Union's application in so far as it requests the Tribunal to order an accelerated schedule of pay equity adjustments.

Order

1 As per the parties joint request, the Tribunal amends the Order of the Review Officer dated May 29, 1992 to direct the full schedule of pay equity adjustments be posted in the pay equity plan and to specify that collective bargaining increases will not reduce the amount of pay equity adjustments to employees under the pay equity plan.

2 The schedule of pay equity adjustments are to be as proposed by the Employer and set out in paragraph8,subjecttofinaldeterminationof the 1992 and 1993 payroll. We note that theEmployerhas agreed to disclose to the Union the payroll information at the end of each calendar year. We direct the Employer to post the amended pay equity plan and to make pay equity adjustments on January 1, 1993 and January 1, 1994 based upon one per cent of payroll for each preceding year. We further direct the Employer to make all final pay equity adjustments on January 1, 1995 in accordance with its proposed schedule.