Group of Employees v. Ontario Public Service Employees Union, 1993 CanLII 5413

0348-92 Group of Employees, Applicant v. Ontario Public Service Employees Union, Crown in Right of Ontario (Management Board Secretariat), Respondents

Before : Janis Sarra, Vice-Chair; Susan Genge and Charles Taccone, Members

Appearances: Leslie Dizgun, Anna Giallarnadoand Rita Schreiberforthe Applicant, Elizabeth Shiltonand Janet Wright for the Respondent Union, David Costen and Marie O'Donell for the Respondent Employer

Cite As: Management Board Secretariat (1993), 4 P.E.R. 58

Deemed Approved Plans - Threshold for Review

The Tribunal will approach allegations from individual unionised employees that a negotiated and deemed approved pay equity plan fails to meet minimum statutory standards in a way which balances the human rights and labour relations aspects of the Act. The Tribunal will accord considerable deference to the negotiating process. This is not only a consequence of ss.14(5) but also a recognition that some of the Act's requirements are explicitly subject to negotiation. There must be more than a belief that the plan fails to comply with the Act before the Tribunal will proceed with such a complaint. This threshold is met where an unreasonable use of the s.5 criteria or an unreasonable exclusion of job information in assessing the value of work is disclosed on the face of the application. Where the facts supporting the complaint make clear that the pay equity system ignored of failed to apply the s.5 criteria or unreasonably excluded important job information the Tribunal will proceed to hear the merits of the application. On the facts before it the majority concluded that the complaint did not meet the threshold test and dismissed the Application.

Practice and Procedure - Standing

Subsection 22(1) identifies entities with status to bring complaints. However the substantive rights upon which any complaint is grounded must be found elsewhere in the Act. In this Application the employees alleged violations of sections 4,7,12 and 14. Subsection 4(1) does not provide any substantive right and cannot be the basis of a complaint. Subsections 4(2) and 7(2) do provide substantive rights to individual unionized employees distinct from those exercised by their bargaining agent. The employees are also entitled to rely on s.5 as compliance with this section is logically connected to their s.7 allegation that job content was inaccurate or incomplete. No complaint by employees can be based on s.12 or 14 because rights arising from those provisions accrue only to the bargaining agent.

Plans réputés approuvés - Critère d'examen

Le Tribunal étudiera les allégations de la part d'employés syndiqués selon lesquelles un plan d'équité salariale négocié et réputé approuvé n'est pas conforme aux exigences minimales de la Loi. Ce faisant, il tiendra compte des deux facteurs suivants: les composantes « droits de la personne » et « relations de travail» de la Loi. Le Tribunal respectera tout particulièrement le processus de négociation non seulement en raison du paragraphe 14(5), mais aussi parce que certaines de ses exigences font explicitement l'objet de négociations. Avant que le Tribunal ne donne suite à une telle plainte, les employés doivent être plus convaincus que le plan n'est pas conforme aux exigences de la Loi. Le critère d'examen du bien-fondé d'une plainte d'un employé syndiqué qui prétend que les spécifications d'un emploi sont inexactes ou incomplètes est le suivant : la divulgation, au vu de la requête, d'un emploi déraisonnable du critère prévu à l'article5 ou de l'exclusion déraisonnable de données sur l'emploi lors de l'évaluation d'un emploi. Si les faits à l'appui de la plainte établissent que le système d'équité salariale ne tenait pas compte du critère prévu à l'article 5 ou excluait, pour des motifs déraisonnables, des données importantes sur l'emploi, le Tribunal jugera du bien-fondé de la requête. Au vu des faits dont ils étaient saisis, la majorité des membres ont conclu que la plainte n'était pas conforme au critère d'examen et n'ont pas fait droit à la requête.

Pratique et procédure - Qualité

Même si le paragraphe 22(1) définit les entités ayant qualité pour porter plainte, il faut trouver ailleurs dans la Loi le droit de fond justifiant la plainte. Dans la présente requête, les employés prétendaient que les articles 4, 7, 12 et 14 avaient été enfreints. Le paragraphe 4(1) ne prévoit aucun droit de fond et ne peut pas, par conséquent, constituer le fondement d'une plainte. Par contre, le Tribunal a conclu que les paragraphes 4(2) et 7(2) accordaient des droits à des employés syndiqués à titre personnel qui étaient distincts de ceux qu'exerçait leur agent négociateur. En outre, les employés pouvaient également invoquer l'article 5, car le respect de cet article est logiquement lié à leur allégation, en vertu de l'article 7, selon laquelle les spécifications des emplois étaient inexactes ou incomplètes. Les employés ne pouvaient pas fonder leurs plaintes sur les articles 12 et 14, car les droits découlant de ces articles ne s'appliquent qu'à l'agent négociateur.

DECISION OF MEMBERS, SUSAN GENGE AND CHARLES TACCONE, OCTOBER 7, 1993

1This is an Application by a Group of Employees alleging that the pay equity plan agreed to by The Crown in the Right of Ontario, Management Board Secretariat (the "Employer") and the Ontario Public Service Employees Union (the "Union") is in contravention of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended, (the "Act"). The Applicants are a group of employees from four workplaces, the Queen Street Mental Health Centre, London Psychiatric Hospital, Whitby Psychiatric Hospital and the Ministry of Correctional Services. The Applicants are all members of four job classes, which were treated as two groups of jobs for the purpose of pay equity; Nurse 2 and Nurse 3 General, and Nurse 2 and Nurse 3 Education. The Union is the exclusive bargaining agent for all the Applicants.

2The Employer and Union negotiated and agreed upon a pay equity plan for approximately 65,000 employees in 605 job classes represented by the Union. The Employer posted the plan in March 1990, with the first wage adjustments to be paid retroactive to January 1, 1990.

3After the plan was posted, the Applicants filed a complaint with Review Services that both the Employer and the Union had contravened the Act. Two Review Officers were assigned and investigated the complaint. In a Notice of Decision, the Officers, pursuant to subsection 23(2), notified the parties and the Hearings Tribunal of their decision that a settlement could not be effected and that the officers would not be issuing a decision. The Applicants then requested a hearing before the Tribunal.

4. The Applicants allegethattheUnionandtheEmployerhavebreachedsections4,7,12and14of the Pay Equity Act by bargaining for and agreeing to gender biased compensation practices, and by agreeing to a job comparison system which was utilized in a gender biased manner. The Application lists a number of alleged indicia of gender bias including allegations that the job content of the affected job classes was ignored and that substantive judgments were made to exclude this job content. The Applicants claim these judgments were arbitrary and were intended to and had the effect of contravening the Act by preventing the work from being visible and explicit. They allege further that the job content, where captured, was removed to a factor in the system where the effect was less significant and/or likely to be negative. The Application also includes a number of allegations concerning technical and policy decisions made during the implementation of the policy capturing comparison system as utilized by the Union and the Employer. Counsel for the employees' at the outset of the hearing summarized the allegations: the comparison system negotiated is not gender neutral and does not meet the minimum standards prescribed by the Act.

4Both the Union and the Employer raised as a preliminary objection that the Tribunal has no jurisdiction to inquire into a negotiated and deemed approved plan on a complaint from employees who are members of the bargaining unit affected by the plan. The Tribunal declines to answer this question in general terms or in the abstract. Rather, in this decision, the Tribunal focuses on the question of whether these particular employees have any rights independent of their bargaining agent to complain of contraventions of the Act on the bases alleged. That is, we examine whether the Applicants in this case have the right to complain about the alleged failure of the comparison system used to capture the job content of the work of the Applicants' job classes, or about the alleged failure of the Union and the Employer to negotiate a gender neutral comparison system in accordance with sections 4, 7, 12 and 14 of the Act.

5For purposes of arguing this preliminary motion, the parties agreed that all the facts contained in the application and in the report prepared by Dr. Lynda Ames on behalf of the Applicants were assumed to be true.

7. Section 22 is the general complaints section of the Act. Section 22(1) provides:

Any employer, employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining that there has been a contravention of this Act, the regulations or an order of the Commission.

6Section 22 is a procedural section only. It sets out in general terms who may file a complaint of a contravention of the Act. Individual employees and groups of employees are included in the list of potential complainants. Further, it is clear that the section would allow an employee, independently of her bargaining agent, to file a complaint.

7However, being named in this section does not make an individual or an entity a proper party to all complaints of contraventions of the Act. In itself this section confers no substantive rights, but simply indicates what individuals or entities may have status to bring a complaint to the Commission. The substantive rights of employees or employers or bargaining agents must be found elsewhere in the Act.

10. To determine whether an entity named in this section has standing to bring a particular complaint, two questions must be addressed. First: does the allegation relate to a section which confers a substantive right? Second: if so, is the entity seeking to enforce that right legally entitled to do so? Certain provisions of the Pay Equity Act establish rights for individual employees. Other provisions establish obligations and rights for bargaining agents in representing their members in the negotiation of pay equity plans under the legislation. To determine the question of standing in this case, the Tribunal must decide whose rights are at issue in relation to each specific allegation, the individuals' or the bargaining agent's, and therefore who is legally entitled to complain.

8In this case, the employees allege contraventions of four sections of the Pay Equity Act. The first section they allege has been contravened is section 4 of the Act. Subsection 4(1) outlines the purpose of the Act: “Tore dress systemic gender discrimination in compensation for work performed by employees in female job classes". Subsection 4(1) informs and provides a context to the interpretation of the Act. While the Applicants relied on the purpose of the Act in their submissions, in itself, subsection 4(1) is not a substantive provision upon which a complaint can be grounded.

9Subsection 4(2) provides that systemic discrimination in compensation is to be identified through comparisons of female and male job classes in terms of compensation and in terms of the value of the work performed. This provision is located in Part I, General and therefore applies to all employers covered by the Act. For Part II employers, such as the Employer in this case, the implementation section provides specific direction to the parties about how comparisons are to be made, particularly through sections 12, 13 and 14. Section 5 details what criteria are to be examined to determine the value of work.

10Subsection 4(2) then does create a requirement on the parties under the Act to examine both compensation and the value of the work. However, the actual standards parties are required to meet to fulfil this requirement are outlined in other sections of the Act. While the Applicants did not make any particular allegations concerning subsection 4(2), their allegations do relate to the other sections which provide some of these standards.

11We turn to those sections next, looking at the questions: do these sections provide enforceable rights? and, do individual unionized employees have standing to enforce these rights?

15. Section 7 provides:

(1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).

12Section7isalsoincludedinPartIofthe Act which is described as "General". As already indicated, this Part contains provisions which apply to all employers and employees in Ontario. The general provisions of the statute are modified by the parts of the Act which follow. These more specific provisions describe how compensation practices are to be changed to meet the requirements of the Act. The Act provides different methods and timetables for the achievement of pay equity which vary depending on the size of the employer and whether the employer is in the private or public sector, unionized or not.

13Regardless of the legislative scheme the employer falls under, subsection 7(1) of the Act places a general obligation on the employer to establish and maintain compensation practices that provide for pay equity. As well, subsection 7(2) places on the employer and bargaining agent, the obligation not to "bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1)". As it stands, section 7clearlyholdsanemployerduty-bound to establish and maintain pay equity, together with the bargaining agent where one exists.

14 Section 7 of the Act is a provision which is clearly capable of contravention. Further, since it places obligations on both employers and bargaining agents, individual unionized employees would be entitled to complain of a contravention of subsection 7(2). Subsection 7(2) prohibits an agreement between an employer and a bargaining agent which would prevent the establishment or maintenance of compensation practices that provide for pay equity. A conclusion that only employers or bargaining agents could complain under this subsection would render the prohibitions insubsection7(2) meaningless in many cases. Since both the employer and the bargaining agent would be signatories to an agreement in contravention of this subsection, it stands to reason that they should be held to their responsibilities under this provision by the employees affected by the agreement.

15 However, although subsection 7(2) is capable of contravention, in itself it provides no clear standards to which unions and employers can be held. The subsection itself does not define what is actually required to establish and maintain compensation practices to provide for pay equity, nor does it define what such practices are. Discernible standards are to be found in other sections of the Act.

16 We were urged to read subsection 7(2) as applying only to collective bargaining, that is, only to bargaining demands or agreements that pertain to the negotiation of a collective agreement, and not to any bargaining which is required under the Pay Equity Act. However, given the requirement to "establish" compensation practices which provide for pay equity, we are not persuaded on this point. The Pay Equity Act provides a number of standards or directives to employers with bargaining agents which detail how such employers are to "establish" compensation practices to provide for pay equity. After pay equity is established the Act further provides that it be maintained in unionized establishments by prohibiting bargaining and agreements which would contravene the subsection (1) requirement. Section 7 must be read as including a directive to employers and bargaining agents both in relation to pay equity bargaining and to regular collective agreement bargaining to meet the requirements of the Pay Equity Act.

17 To determine specifically what must be done by employers and unions to establish pay equity and what standards the Act provides in relation to pay equity bargaining, it is necessary to examine the provisions of Part II of the Act. Part II is the implementation section for public sector employers, such as the Ontario Public Service in this case, and for large private sector employers. These employers are required to establish compensation practices that provide for pay equity through the development of a gender neutral comparison system and a pay equity plan. Sections 12, 13 and 14 describe what is required of employers and bargaining agents where they exist.

18 Section 12 states that every employer covered by this part of the Act "shall, using a gender-neutral comparison system, compare the female job classes in each establishment of the employer with the male job classes in the same establishment to determine whether pay equity exists for each female job class".

19 Section 13 directs the parties to prepare documents to be known as pay equity plans, and specifies the contents of these plans. In particular these documents are to identify the establishment and all job classes which formed the basis of the comparison sunder section 12. A pay equity plan for establishments with both male and female job classes must describe the gender neutral comparison system used and the results of the comparisons carried out undersection12. It must also identify all positions and job classes in which differences in compensation are allowed under section 8 and give the reasons for relying on the subsections. As well, plans must describe how compensation is to be adjusted for all female job classes for which pay equity is found not to exist as a result of the comparisons and set out the date of the first adjustments.

20 Section 13 contains a number of subsections which specify how required pay equity adjustments are to be made. In particular for unionized workplaces, subsection 13(10) provides that an approved pay equity plan prevails over all relevant collective agreements and requires that any necessary adjustments be incorporated into the collective agreement. Subsection 13(9) provides that "a pay equity plan that is approved under this Part binds the employer and the employees to whom the plan applies and their bargaining agent, if any."

21 The obligations of the employer in both sections 12 and 13 are subject to the requirement to negotiate in good faith and endeavour to agree with the bargaining agent. Section 14 clearly states that in a unionized environment the employer's obligations setout insection12 are to be met through a negotiated process involving the bargaining agent.

22 Section 14 outlines in some detail the rights and obligations of the bargaining agent. Section 14(2) specifically mandates the employer and bargaining agent to negotiate in good faith and endeavour to agree on the gender-neutral comparison system and on a pay equity plan. Employers and unions may also agree on the gender dominance of job classes; they may agree to include more than one geographic division of the employer in the pay equity establishment. Subsections 14(4) and (5) state that when the employer and a bargaining agent agree on a pay equity plan they shall execute the agreement and post a copy of the plan in the workplace. A duly executed plan shall be deemed to have been approved by the Commission, and on the day provided for in the plan, the employer is to make the first adjustments in compensation required to achieve pay equity.

23 Subsection 1(1) defines bargaining agent for the purpose of pay equity as a trade union under the Labour Relations Act or an organization under any other Act which has exclusive bargaining rights for employees covered by the Pay Equity Act. This definition specifically incorporates the labour relations principles of exclusive bargaining agency into pay equity bargaining. All of the rights and obligations of the bargaining agent set out in section 14 are accorded to the union as the sole representative of employees in the bargaining unit. In fact, there is no statutorily specified role for individual employees, whether unionized or not, in the development or negotiation of pay equity plans. An employer who ignores the rights and obligations of the bargaining agent by attempting to negotiate directly with employees in a bargaining unit will violate the Pay Equity Act. Haldimand-Norfolk (No. 6) (1991), 2 P.E.R. 105 at para. 115.

28. Not only does section 14 specify that the employer is to negotiate a pay equity plan with the bargaining agent, the Act further specifically restricts the right to object to the bargaining agent. Pursuant to subsection 14(7), it is the bargaining agent which is permitted to notify the Commission if no agreement is reached on a pay equity plan. If a Review Officer makes an order under section 16, following a notice by either an employer or bargaining agent that no settlement has been reached, the Act specifies that only the employer or the bargaining agent may file objections to the order. Similarly, it is only the employer or the bargaining agent who are entitled to object to a review officer prepared plan if such a plan is ordered by the Tribunal under section 25.

24 These provisions which specifically and exclusively allocate to the bargaining agent the role of preparing pay equity plans and objecting to prepared plans contrast starkly with the rights of employees who are not in a bargaining unit. If the employees are not unionized, then section 15 of the Act applies and indicates that while the employer is allowed to unilaterally develop a pay equity plan, individual employees are given the right to review, comment and formally complain about the plan to the Commission; all rights which are paralleled by the rights afforded to the bargaining agent outlined above. This contrast between individual employees' rights and the rights of unions under the Act gives a further indication of the Legislature's intention to give bargaining agents a central role in the implementation of pay equity.

25 The Act then, accords no role to employees who are represented by a bargaining agent in the negotiation or implementation of pay equity. Where a bargaining unit exists, the bargaining agent exercises these rights on behalf of its members. These provisions provide no substantive rights to individual employees. Therefore, in a unionized workplace only the bargaining agent or the employer can complain with respect to sections 12 and 14.

26 The Applicants in this case however also allege that the completed pay equity plan fails to meet the minimum standards of the Act. They referred specifically to sections 4 and 7. As well, in their submissions, through their allegations that the job content of the nurses' job classes ignored and excluded, they effectively allege a contravention of section 5. We have already found that sections 4(2) and 7 are capable of contravention and that individual unionized employees would have standing to complain, but that specific, clear standards are only to be found in other sections of the Act. However, the question whether the deemed approved provisions of the Act insulate from review all aspects of a deemed approved pay equity plan, regardless of whether that plan meets the statutory minimum provisions of the Act, must first be addressed.

27 As the Tribunal has noted in several previous decisions, the Act has both anti-discrimination and collective bargaining elements.

The Pay Equity Act, 1987 has elements of anti-discrimination legislation both in its historical development and in its content. The law is a recognition of the systemic nature of wage discrimination and provides a strategy to deal with the discrimination.

The law also has a labour relations component in that the framework for achieving pay equity in unionized workplaces is a collective bargaining one, with both rights and obligations on employers and bargaining agents. The Act imposes the obligation to negotiate pay equity plans and provides a detailed mechanism by which pay equity will be accomplished. The law gives clear recognition to the history and structure of collective bargaining in this process. Haldimand-Norfolk (No. 3) (1989), 1 P.E.R. 17 at para. 40 and para. 42

1 The provisions of the Act indicate this dual nature. On the one hand, as the preamble and subsection 4(1) set out, the purpose of the Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes in Ontario. The Act recognizes the need for affirmative action and describes its task as redressing a systemic problem. In other words, the legislation has an anti­discrimination purpose.

2 On the other hand, where there is a bargaining agent, the scheme adopted by the Legislature to redress the defined discrimination is collective bargaining. The Act specifies that where the parties agree and execute a pay equity plan, that plan is deemed approved by the Commission. The first adjustments in compensation called for in the plan follow this agreement and approval. Furthermore, the adjustments to rates of compensation required by the plan are deemed to be incorporated into and form part of the collective agreement concerning the parties. These are two important consequences affecting the compensation of employees in female job classes which flow from the agreement of the parties to pay equity bargaining and the deemed approved provisions of the Act. Subsection 13(9) which provides that plans approved under Part II are binding on the employer, the employees and their bargaining agent, is a further indication that the Legislature intended pay equity plans to be finalized following agreement between the employer and the bargaining agent.

3 Given these provisions, the Tribunal's approach to allegations about a deemed approved pay equity plan failing to meet the statutory minimum provided by the Act must be a balanced one. On the one hand, the Tribunal finds that a failure to meet the statutory minimum indicated in the Act would be a contravention of the Act and as such would render a deemed approved pay equity plan invalid. The parties are not competent to contract out of the standards of the Act. (Ontario Human Rights Commission et al. v. Borough of Etobicoke (1982), 1982 CanLII 15 (SCC), 132 D.L.R. (3rd) 14 (S.C.C.) at pages 23 and 24.) At the same time, the Tribunal must accord considerable deference to parties who are obligated by the Act to negotiate and implement pay equity. This deference is necessary not only because of the deemed approved provisions of the Act, but also because the standards in the Act are not always easily discernible and some are specifically subject to the negotiation process. More than a belief that their statutory rights have been violated will be required before individual unionized employees can access an inquiry into a negotiated and deemed approved plan.

4 We turn now to the question of what are the minimum standards in the Act and to the question of what standard of review the Tribunal should apply.

5 Employers and unions are required to take a number of steps to ensure that they establish and maintain compensation practices which provide for pay equity and thereby redress the discrimination defined by the Act. Sections 12, 13 and 14 in particular detail a series of obligations on employers and unions under this legislation. Some standards are established by these sections to which employers and unions can be held accountable.

6 However, one of these obligations is to negotiate and endeavour to agree on a "gender-neutral" "comparison system". These terms are not defined in the legislation. Rather, the comparison system and its gender neutrality are specifically subject to collective bargaining according to subsection 14(2)(a). Collective bargaining by its nature involves give and take by both parties. While there are constraints on parties' bargaining under this Act, constraints imposed by standards in the Act itself, we cannot see how gender neutrality can be an absolute standard. Indeed, to find gender neutrality to be an absolute standard would be to undermine the explicit statutory direction to employers and bargaining agents found in subsection 14(2)(a).

7 The Legislature specifically directed employers and unions to bargain a gender neutral comparison system and a pay equity plan. The statutory directive to negotiate implies a relative standard for gender neutrality. That is, while the Act provides room for some discretion to the negotiating parties, the Act also sets some parameters to that discretion.

8 Section 13 is one of the sections of the Act which provides direction to employers and unions in complying with the requirement under section 7toestablishcompensationpracticeswhichprovideforpay equity. That is, while unions and employers are allowed to develop a pay equity plan through negotiations the plan itself, the document they post at the end of the process, must include all of the components required by this section. Unionized employees at a minimum are entitled to a plan and to a plan which meets the standards outlined. This section therefore sets some parameters on the parties' negotiations and if employers and unions fail to follow the directives in section 13, the Tribunal could consider a complaint by unionized employees under section 7. In this case however, there is no allegation that the negotiated plan is deficient in this regard.

9 Similarly, section 5 details the criteria to be applied in determining the value of work. The section provides:

For the purposes of this Act, the criterion to be applied in determining value of work shall be a composite of the skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed.

In meeting their section 7 requirements to establish pay equity, employers and unions must use the statutory criteria to determine the value of the work.

42. In Haldimand-Norfolk (No. 6) (1991), 2 P.E.R. 105 at paragraph 24, the Tribunal held:

... that the parties have an obligation to ensure the collection of job content information meets the requirements of the Act to accurately identify skill, effort, responsibility and working conditions normally required in the work of both the female job classes in the establishment and the male job classes to be compared. Not only is this a necessary condition of a gender neutral comparison system but weal so find that section 5 of the Act requires a standard of correctness, that is, the skills, effort, responsibility and working conditions must be accurately and completely recorded.

2 Clearly, if job content is not accurately captured, then it is not possible for the normal requirements of job classes to be compared on the four criteria required by section 5. However, the Tribunal in Haldimand-Norfolk (No. 6) at paragraph 123 and 124, also found that: "... it is not possible for a party to absolutely ensure the gender neutrality of its proposed comparison system, particularly in meeting obligations under a new statute with little case law as guidance to the legal standards." The Tribunal found that the parties to pay equity negotiations were required to make reasonable efforts to try to ensure that their proposals for a comparison system met the statutory requirements.

3 The Tribunal adopts a similar approach to the question of whether or not the parties have met the requirements of the statute to accurately collect job content information on the four criteria. If the parties have made a reasonable effort to accurately capture the job content, then the Tribunal will not inquire further. Therefore, if, on the face of the Application, it is clear that the system ignored one of the criteria, or failed to apply these criteria; or unreasonably excluded important job information related to any of the four criteria, then the Tribunal should proceed to hear the merits of the Application.

4 A preliminary inquiry of this nature allows the Tribunal to afford the deference required by the Act to the parties with the obligation to prepare, post and execute pay equity plans. A standard of review which is higher than the normal prima facie case inquiry, is required given these statutory provisions. Finally, the threshold is fair in that it holds the negotiating parties to the same standard as the Tribunal has required them to meet in developing and bargaining pay equity proposals.

5 In this case, there is an allegation that "the job content of the affected job classes was ignored and substantive judgments of the Respondents were made to exclude this job content, where the job content should have been included. Such judgments made were arbitrary or were intended to and had the effect of contravening the Act by preventing the work of the affected job classes to be visible and explicit. As a result, this job content was not captured by the job comparison system." (Application, page 3)

6 As noted earlier, the parties agreed that for the purposes of deciding the preliminary motion, the Tribunal was to accept as true the facts contained in the Application and in the Report of Dr. Ames. Dr. Lynda Ames is a recognized expert in comparable worth who has been qualified as an expert in pay equity in several other hearings before the Tribunal. Dr. Ames' Report contains her expert opinion about the negotiated pay equity plan in this case, as well as the facts upon which we are to base our decision. In coming to our decision, the Tribunal has been careful to distinguish between the opinions in the Report and the facts upon which Dr. Ames bases her conclusions.

7 Before examining the facts which give rise to the allegation that the job content of the nurses' job classes was not captured, it is important to examine some of the aspects of the comparison system used in this instance. In explaining the system used, the Tribunal relies on Dr. Ames' description of how the system operates. In this case, the parties used a policy capturing methodology to evaluate the work performed by the unionized employees in the Ontario Public Service. Six hundred and five job classes, comprised of 65,000 employees, were evaluated.

49. A policy capturing approach involves administering a comprehensive questionnaire to employees. The results of this survey, through a statistical procedure known as factor analysis, are used to determine the underlying factors of job content. Elements of job content are grouped together into factors which distinguish among jobs. The factors used to evaluate job worth then, are constructed based on answers given by employees to the questionnaires.

8 In policy capturing, the method for organizing responses into factors is predominantly a statistical one. The statistical procedure groups together ever a individual questions into a common general cluster, which can be pulled together to form scales underlying the factor. The groups are formed of questions which tend to be similar in nature and seem to measure slightly different aspects of the same overall piece of job content. The procedure also provides a factor "loading" statistic for each individual question on each factor which indicates how much each question fits with the grouping of other questions or with the factor. (Dr. Ames' Report page 5)

9 Statistics inform the construction of factors. The factors may be constructed by using all of the questions which "load" high statistically on a factor or by using a subset of the questions. A subset is often quite appropriate. The inclusion of questions within a factor is guided by considerations about loading, inter-factor correlation or concerns about possible double counting. Strictly statistical criteria for subset inclusion or exclusion may not be the best method. While the statistics themselves may indicate one grouping, experience and substantive judgments may indicate that other groupings would make more appropriate factors. (Dr. Ames' Report pages 6 and 7)

10 Factors then, can be constructed on the basis of statistical procedures which group together questions and on the basis of substantive judgments. In this case, Dr. Ames concludes that the Employer and the Union altered the statistically indicated factors based "apparently" on substantive judgments. The facts which lead to the allegation that the job content of nurses was not accurately collected relate to the results of these substantive judgments.

53. On the first factor in the system which was to measure "knowledge and mental demands" fifty-one individual questions loaded highest on the statistical measure. The highest item loaded at .86598; the lowest at .37380. A statistical cut-off for inclusion in this factor seemed to occur at .53 or so. (Dr. Ames' Report page 7) Five questions were excluded from the knowledge and mental demands factor which had a statistical loading higher than the .53 statistical cut-off:

52.1 How much time do you spend co-ordinating process or projects for yourself? (Loading .69390)

14.2 How often do you ... read longer, straightforward material such as detailed forms, standard memos or letters? (Loading .59567)

53.1 How much input do you have to decisions affecting individual members of the general public, clients, patients, residents, inmates? (Loading .59429)

49.1 How much input do you have to the way things are done or the methods and procedures used by yourself? (Loading .56991)

37.1 How much of your time do you spend on ... conducting investigative or assessment interviews, such as clinical assessments, job interviews, hearings or operational audits? (Loading .53751) (Dr. Ames' Report, pages 7 and 8)

54. Several items statistically indicated for inclusion were omitted from another factor in the system. The factor, entitled "caring for people" was split into two sub factors of "emotional care" and "physical care". These were the items skipped over despite a statistical loading figure which would have indicated their inclusion, absent some substantive judgment calls. Questions included in the two factors had statistical loadings which ranged from .87541 to .46204.

34.3 How much of the time do you need the following qualities in your job: comforting people (other than co-workers)? (Loading .71992)

38.1 How much time do you spend dealing, in person, with clients, residents, inmates or members of the public who are upset, angry or confused? (Loading .66922)

69.7 When doing your job, how often are you exposed to the following potential hazards: falling objects or objects that are thrown? (Loading .60015)

75.3 How often do the following injuries or illnesses result from hazards in your work, given that all health and safety regulations are followed: injury or occupational illness resulting in partial disability? (Loading . 49410) (Dr. Ames' Report pages 12 and 13)

55. In the factor, "extra effort" a final question was excluded. The statistical loading of this item was higher than for a question left in the factor. Fifteen individual questions loaded on this factor according to the statistical procedure; of these, ten were included in the actual factor. Three were excluded because they were below the statistical cut-off; one was moved to another factor. And this question was dropped:

38.4 How much time do you spend dealing, in person, with people in emergencies or in extreme situations? (Loading .53735)

56. One of the conclusions that Dr. Ames draws from the decision of the parties to omit these questions from the factors used to analyse the work of the job classes in the Ontario Public Service is that the job content of the nursing job classes was ignored, excluded and not captured by the system. She bases this conclusion in part on her assessment of the questions, and in part on her view of what typical nursing duties are. At page 9 of her Report, for example, she says:

Arguably these are among the factors readily distinguishing nursing work from other work. The exclusion of important parts of nursing work from the measures of job content and thus the comparison of jobs means that nurses' work is left invisible. There is no measure of these skills and mental demands in the OPS/OPSEU system. (emphasis in the original)

11 While the Tribunal does not rely on Dr. Ames' opinion we do note that this assessment is qualified in her own conclusion to this section of the Report at page 16 and 17.

The set of factors used by OPS/OPSEU to compare jobs were not determined statistically, but were designed according to unknown substantive judgments. Without an analysis of which designed factors favour men's work and which(if any) favour women's work, it is possible that the set of factors constructed by OPS/OPSEU includes primarily factors which favour men's work. It cannot be known, without an analysis, whether the designed factors adequately cover women's work. Thus, it cannot be known if the set of factors is gender neutral.

This is not a definitive analysis. However, insofar as these factors were important in judging relative worth in the OPS/OPSEU model, if it is true that they favour male-dominated jobs, then their inclusion and importance in the model indicate a lack of gender neutrality. (emphasis added)

1 The question for the Tribunal is whether the parties' decision to exclude the answers of the employees surveyed, to the above-noted ten questions was so unreasonable that it constitutes a contravention of the section5 requirement to collect the normal requirements of the job classes on the four specified criteria.

2 We note at the outset that there is nothing in the Application or in the Report of Dr. Ames to indicate what responses employees in the applicant job classes actually gave to the ten questions. That is, we do not know for a fact that the nurses perform any of the above mentioned duties or if they do, for what period of time they might normally be required to do so. Nevertheless, we will assume along with Dr. Ames that the nurses' job classes are required to perform the duties in question.

3 Before examining the excluded questions in any detail, it is important to recognize again that the system used by the parties in this case was required to capture and compare the work performed by public service employees in over 600 job classes. The questions on their face are general. It is clear that duties of many different types of jobs would be covered. For example, question number 37.1, while it includes "clinical assessments" which might be required of the nurses' job classes, also includes "job interviews", "hearings", and "operational audits". Question number 53.1 relating to employees' input into decisions affecting the "general public", "clients", "patients", "residents" and "inmates" is similarly general. As well, questions 49.1,which deals with employees' input into the "methods" and "procedures" the employee uses, and 14.2 asking about how often employees are required to read "longer, straightforward material" such as "standard forms" or "letters" are clearly broadly applicable. Given the general nature of the questions, we cannot reasonably conclude that job content specific only to the nursing job classes was not collected when these questions were omitted.

61. Furthermore, Dr. Ames notes in her report that the knowledge and mental demands factor measures, among other things, reading and writings kills. She indicates that eight other questions, specifically questions 14.3-14.5, 15.2-15.5, and 16.3 measure these skills. (Dr. Ames' Report page 16) It is not unreasonable that one extra question on reading skills was omitted. It does not obviously lead to the conclusion that the reading skills of the Applicant job classes were not captured.

4 We turn now to the set of questions which were omitted from the subfactors "emotional care" and "physical care", under the overriding factor "caring for people". If we accept as a fact that the parties created a factor called caring for people, and further created a subfactor to capture the "emotional care" involved in this task, we cannot conclude that it was unreasonable to omit four questions. That is, we cannot conclude that the exclusion of four items from this factor could logically render invisible the skills involved in caring for people physically or emotionally.

5 Finally, we note that the questionnaire asked employees to answer 76 questions, which included more than a hundred related sub-component questions. We note further that all of the questions which were dropped were sub-component questions. So, for example question 52.1 which asks whether the employee spends time coordinating processes or projects "for yourself", goes onto a skin 52.2" foryour unit, section or ward" and in 52.3 "for your branch or institution". In other words, none of the excluded questions stood alone in asking about a specific piece of job content, but rather were part of a set of questions dealing with a common area of job content. It is not unreasonable then, given the large number of questions asked and the structure of the questions, for the parties to have omitted ten questions for substantive reasons.

6 Based on the facts above, we cannot reasonably find that the omission of these ten sub-component questions leads to the conclusion that the Employer and the Union failed to capture the job content of the nursing job classes.

7 In conclusion, the Applicants have no standing to complain about sections 12 and 14 because the rights provided under those sections of the Act accrue to the bargaining agent. There can be no complaint of a contravention of subsection 4(1) because the purpose clause does not provide an enforceable or substantive right. Although subsection 4(2) is capable of contravention, the employees have made no allegation under 4(2).

8 The Applicants do have standing under section 7 because the section provides enforceable or substantive right and these rights clearly flow to individual unionized employees. Furthermore, the employees do have the right to complain about section 5, because of their allegation under section 7 that the parties had not bargained compensation practices to provide for pay equity because they did not accurately collect the job information of the employees' job classes. In balancing the anti-discrimination and exclusive bargaining agency requirements of the legislation, the standard of review the Tribunal has found to be appropriate in this case is whether or not the Application on its face discloses an unreasonable useofthesection5criteriain assessing the value of the work. In this case, the agreed facts do not indicate that the Employer and the Union unreasonably excluded job content of the job classes in question from their evaluations. The Application is therefore dismissed.

DECISION OF VICE-CHAIR JANIS SARRA, OCTOBER 7, 1993

1 To the extent that members Taccone and Genge have adopted my findings and reasons, the panel is unanimous. However, I clearly disagree with the higher threshold test the majority has set, before the Tribunal will inquire into an alleged contravention of the Pay Equity Act, R.S.O. 1990, c.P.7.

2 This is an Application by a Group of Employees alleging that the pay equity plan agreed to by The Crown in the Right of Ontario, Management Board Secretariat (the "Employer") and the Ontario Public Service Employees Union (the "Union") is in contravention of the Pay Equity Act (the "Act"). The Applicants are a Group of Employees from four workplaces, the Queen Street Mental Health Centre, London Psychiatric Hospital, Whitby Psychiatric Hospital and the Ministry of Correctional Services. The Applicants are all members of four job classes, which were treated as two groups of jobs for the purpose of pay equity: Nurse 2 and Nurse 3 General, and Nurse 2 and Nurse 3 Education. The Union is the exclusive bargaining agent for all the Applicants.

3 The Employer and Union negotiated and agreed upon a pay equity plan for the approximately 65,000 employees in 605 job classes represented by the Union. The Employer posted the plan in March 1990, with first adjustments retroactive to January 1, 1990. After the plan was posted, the Applicants made a complaint to Review Services that both the Employer and the Union had contravened the Act . Two Review Officers investigated the complaint. In a "Notice of Decision" dated July 17, 1992, the Officers were of the opinion that when a contravention of the statute is alleged, the Officers have jurisdiction to investigate and endeavour to effect a settlement. The Officers notified the parties and the Hearings Tribunal of their decision that a settlement could not be effected and that the Officers would not be issuing an Order, concluding that the issues would be more appropriately addressed in a hearing at the Tribunal. The Applicants then requested a hearing before the Tribunal.

4 The Applicants allege that the Union and the Employer have breached sections 4, 7, 12, and 14 of the Pay Equity Act by bargaining for and agreeing to gender biased compensation practices, and by agreeing to a job comparison system which was utilised in a gender biased manner. They allege that the job content of their job-classes was ignored, excluded or not captured by the comparison system; that the judgements by the Employer and the Union "were arbitrary or were intended to and had the effect of contravening the Act by preventing the work of the affected job classes to be visible and explicit." [Application, schedule C, page 3]. They allege that both the exclusion and the valuing of job content contravened the Act by not making visible or positively valuing the work requirements of these job classes; and that the Act was contravened by not having a job evaluation policy committee. Finally, they allege that the plan fails to achieve pay equity for their job classes.

5 Both the Union and the Employer raised a preliminary objection, specifically, that the Tribunal has no jurisdiction to inquire into a negotiated and deemed approved plan on a complaint from bargaining unit employees affected by the plan. For purposes of arguing this preliminary motion, the parties agreed that all the facts contained in the Application and in the opinion report of Dr. Ames were assumed to be true.

6. The Tribunal had the benefit of well reasoned submissions from all parties, including both written argument and oral submissions. Although it is not necessary to repeat all of these arguments, it is helpful to briefly summarise each of the positions articulated. The Applicants submitted that section 22 of the Act confers an absolute right upon all employees to complain about a contravention of the Act, whether or not they are represented by a bargaining agent. The Applicants submitted that unlike labour relations legislation, the Pay Equity Act is fundamentally concerned with the remedying of gender discrimination for both unionized and non-unionized employees, and thus the anti-discrimination provisions take precedence over the collective bargaining provisions. The deemed approved section was never intended as a bar to a review to determine compliance with the minimum requirements of the Act.

6 The Employer submitted that individual employees represented by a union have no recourse under the Pay Equity Act, that the Act was crafted to reflect existing collective bargaining structures, and that only the exclusive bargaining agent has rights under the Act. It submitted that where employees are not satisfied that the Union has adequately represented their interests, they can complain to the appropriate body which adjudicates upon the Union's duty of fair representation. The Employer submitted that the Crown "cannot be held in contravention of the Act where that very legislation appears to promote and sanction such conduct, namely the negotiation and execution of a pay equity plan [Employer's submissions at page 5] and submitted that any obligations under section 7 of the Act are shaped by the deemed approved provisions.

7 The Union submitted that section 22 of the Act does allow a unionized individual to complain where a pay equity plan is not being implemented according to its terms, or where circumstances have changed such that the plan is no longer appropriate for a particular job class. Other than these two limited circumstances, the deemed approved provisions of the statute prohibit any unionized employee from complaining about the pay equity plan. In its view, neither the comparison system nor the pay equity plan are compensation practices, and therefore, complaints under section 7 are limited to compensation practices other than for purposes of establishing pay equity. The Union submitted that the Tribunal's jurisdiction to inquire into a deemed approved plan is limited to a complaint from one of the parties with bargaining obligations, where there is an allegation of misrepresentation or a breach of statutory standards, and thus, individual employees do not have standing to bring such challenges.

Procedural Mechanism to Bring a Complaint

9. Section 22 specifies who has status to file a complaint with the Pay Equity Commission. Subsection 22(1) specifies:

22(1) Any employer, employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining that there has been a contravention of this Act, the regulations or an order of the Commission.

Section 22 is the mechanism by which individual employees may bring complaints to the Pay Equity Commission. The section does not distinguish between organised and unorganised employees. Standing alone, section 22 confers no substantive rights on any party, but simply indicates which individuals or entities have status to bring a complaint to the Commission. Substantive rights must be found in another provision of the Act. In this case, the Tribunal finds that the Group of Employees are entitled, under subsection 22(1), to file an application that the Act has been contravened. They must however, ground their complaint in a substantive right granted to them by the Act.

10. The Pay Equity Act is a recognition of the pervasive nature of systemic discrimination in compensation. The Act has the express purpose of identifying and redressing such gender discrimination. It has elements of both human rights and labour relations law. Different provisions of the Act confer different rights and obligations upon employers, unions and individual employees. The Tribunal must therefore determine whether as unionized employees, these Applicants have any right independent oft heir bargaining agent to complain about the specific sections they allege have been contravened.

Sections 12 and 14

1 Sections12and14, which the Applicants allege have been contravened, contain specific directions to employers and unions on how to accomplish pay equity. Section 12 requires the employer to use a gender-neutral comparison system to compare the female job classes with the male job classes in the employer's establishment, to determine whether pay equity exists for each female job class. Section 14 requires that in a unionized workplace, the employer and the bargaining agent shall negotiate in good faith and endeavour to agree upon a gender neutral comparison system and a pay equity plan. It also provides a process for failure to agree, and specifies the posting requirements.

2 A series of decisions by this Tribunal have begun to set out standards to meet the statutory requirement to use a gender neutral comparison system. In Haldimand Norfolk (No. 6) the Tribunal held that a gender neutral comparison system must be able to analyse and rectify systemic patterns of wage discrimination, with particular attention paid to valuing the work of female job classes to ensure the system remedies the undervaluation of women's work. [Haldimand Norfolk (No. 6) (1991), 2 P. E. R. 105 at paragraph 12] It must positively identify and value characteristics of work, particular women's work, which have been historically undervalued or invisible. [ibid., para. 16] The Tribunal has set out the component parts of a gender neutral comparison system which must be complied with in order to meet the requirements of the Act. Parties with the obligation to negotiate a gender neutral comparison system have the flexibility to fashion a system which meets their needs, but they also have an obligation to ensure that gender bias is eliminated from all parts of the system. [ibid., at para.12]

3 The scheme of the Pay Equity Act is such that where employees are represented by a union, only the bargaining agent, acting on behalf of those employees, may engage in the process of bargaining for and implementing pay equity. Section 14, in requiring the employer and the union to bargain in good faith, confers enforceable rights as between the employer and the bargaining agent to negotiate and achieve pay equity; specifying the content, timeframes and results of the bargaining process. [ibid., at para.107] The obligations of the employerinsection12 are subject to the requirement in section 14 to negotiate with the bargaining agent. The Act accords no role in this process to unionized employees because they are represented by their union.

14. This is reinforced by subsection 1(1) of the Act which defines bargaining agent for the purpose of pay equity, and specifically incorporates the labour relations principle of exclusive bargaining agent, whereby the union is recognised as the sole representative of employees in the bargaining unit with all attendant rights and obligations. An employer who fails to deal directly with the bargaining agent and attempts to negotiate with employees will violate the Pay Equity Act.[ ibid., at para. 115] Given this framework, it must follow that only the bargaining agent may claim or exercise any rights with respect to section 12 and 14 of the Act. The Act does not contemplate that individual employees represented by a union, can complain about those parts of the Act where substantive rights are granted exclusively to the employer and bargaining agent. This is in stark contrast to non-unionized employees, for whom there are specific rights granted under section 15 to review, comment upon, and, if desired, to formally complain to the Commission. The bargaining agent exercises these rights on behalf on its members.

4 The Tribunal can draw upon analogous labour relations jurisprudence for guidance in reaching this decision. In Central Park Lodges of Canada, [1980] O.L.R.B. Rep. Oct. 1373 at 1380, the Ontario Labour Relations Board held that individual employees may not ask the Board to determine their employee status once the union is certified and status is subject to collective bargaining, that the Labour Relations Act, R.S.O. 1990,c.L.2, only intended to resolve disputes between the immediate parties to the bargaining relationship, specifically the union and the employer. In Canadian General Electric, [1980] O.L.R.B. Rep. August 1179, the Labour Relations Board held that it would not inquire into an individual employee's complaint alleging a breach of the duty to negotiate in good faith, that only parties with direct rights and responsibilities for collective bargaining have the right to complain about a violation of those responsibilities.

5 In pay equity negotiations, bargaining for a gender neutral comparison system and a pay equity plan are the vehicle through which pay equity is initially assessed and implemented. Parties who have responsibility for setting compensation practices are given the opportunity to design a strategy for pay equity which is tailored to their particular workplace. The right to complain about pay equity negotiations under sections 12 and 14 is limited to those with specified rights and obligations, in a unionized workplace this is the employer and the union. Accordingly, in this case, the Applicants do not have status to bring a complaint to the Tribunal under sections 12 and 14 of the Act.

17. This does not mean that the Applicants are entirely without recourse to challenge the conduct of their bargaining agent. The Union as exclusive bargaining agent has a duty of fair representation to the employees on whose behalf it must negotiate. For most unions this obligation is set out in section 69 of the Labour Relations Act, and, recently, the Labour Relations Board accepted jurisdiction to hear a duty of fair representation complaint brought by individual employees with respect to pay equity negotiations. [Hadley et al. v. York University Staff Association, [1992] O.L.R.B., Rep. Nov. 1193] In this case, the Union derives its bargaining status from the Crown Employees Collective Bargaining Act, R.S.O. 1990, c. C. 50, s.30 ("CECBA"), which specifies that a union shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee. CECBA gives the Ontario Public Service Labour Relations Tribunal jurisdiction to inquire into a complaint of this duty, and if a breach of the duty is found, the Tribunal can order a variety of remedies[s.32]. The Supreme Court of Canada has held that where a statutory regime exists requiring a duty of fair representation, then complaints about a breach of that duty should be taken to the tribunal granted jurisdiction under that statute.[Gendron v. Supply and Services Union of the Public Service Alliance of Canada, 90 C.L.L.C. 12,127 (S.C.C.) at 12,179] However, the Court noted that in the context of human rights violations, while the statutory regime may apply, the breach may not be exclusively one which is a labour relations matter. [Gendron at 12,181] Given the human rights component of the Pay Equity Act, notwithstanding the existing labour relations regime, it may be that individuals have no effective remedy for a breach of the duty of fair representation in pay equity negotiations without recourse to the Pay Equity Hearings Tribunal. In such a case, the Tribunal would entertain a complaint about a violation by a bargaining agent of the duty of fair representation during pay equity negotiations.

6 In this case, although the Review Officers found that one of the issues was an allegation that the Union failed to fairly represent the interests of the Group of Employees in pay equity negotiations, the only reference in the Application before the Tribunal is an allegation that the Union made arbitrary judgements and intended to contravene the Act. No particulars are given with respect to the facts, issues and events of how the Union breached its duty to fairly represent its members, and as a result, even if the Tribunal were to accept jurisdiction to hear a duty of fair representation complaint in this case, the pleadings do not make out a prima facie case.

Section 7

1 The Applicants also allege that the Employer and the Union violated section 7 of the Pay Equity Act. Section 7 requires the Employer to establish and maintain compensation practices which provide for pay equity. It prohibits both the Union and Employer from bargaining for or agreeing to compensation practices which, if adopted, would cause a contravention of the requirement to establish and maintain pay equity. Just as the section 12 requirements upon the Employer are subject to the bargaining obligations in section14, so too is bargaining subject to the requirementsinsection7ofthe Act. It is here that individual employees, whether unionized or not, are granted substantive rights under the Act. If an employee can demonstrate that an employer and union bargained for or agreed to a compensation practice which contravened the requirements to establish and maintain pay equity, then they would been titled to a remedy for their job class under the statute. In order to decide such cases, the Tribunal would look to the provisions in the statute which set standards, such as the definition of pay equity, and the criteria which must be used to achieve it.

2 It cannot be, as the Union has suggested, that section 7 refers only to compensation practices other than pay equity practices. The wording of section 7 in no way excludes complaints with respect to pay equity compensation practices, and in fact the plain wording indicates the contrary, that employers must establish compensation practices which provide for pay equity, and that neither the union or the employer may negotiate or agree to compensation practices which are in contravention of this requirement. Thus, section 7 includes compensation practices to achieve pay equity, not merely those practices arising out of regular collective bargaining, and the Tribunal has jurisdiction to decide whether the section7 requirements have been met.

21. It also cannot be, as the Employer has argued, that only the Union can bring a complaint under section 7 on behalf of its members. Section 7 confers substantive rights upon individuals as well as unions and employers because of the anti-discrimination nature of the Act; it is a safeguard that ensures parties will not contract out of the statute in their negotiations to achieve pay equity. Compensation practices which establish and maintain pay equity are benefits for individual employees who are in female job classes. The preamble of the Act which states that it is desirable that affirmative action be taken to redress gender discrimination in the compensation of employees in female job classes, reinforces this notion that the achievement of pay equity will benefit individual women. The prohibition in subsection 7(2) upon employers and unions from agreeing to compensation practices that do not establish and maintain pay equity, are also of benefit to individual employees in female job classes. Thus section 7 grants substantive benefits and protects them with aprohibition. Two possibilities exist for enforcement of the rights granted insection7forunionizedemployees. First, the parties who agreed to a compensation practice that violates the prohibition in subsection 7(2) could seek to remedy a contravention they created, and second, the individual employees who are to receive the benefits of section 7 and the statutory protection from the actions of parties to the pay equity negotiations, may apply to enforce the protections.

3 As the Supreme Court of Canada held in Action Travail des Femmes:

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognise that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimise those rights and to enfeeble their proper impact. Action Travail des Femmes v. C.N.R. 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114 (S.C.C.) at 1134.

23. The idea of balancing access to enforcement of the substantive rights of individuals, unions and employers in order to achieve anti-discrimination goals is found in other remedial legislation such as in the human rights and labour relations regimes. Thus in labour relations, a regime that rarely grants individuals status to bring complaints, the Labour Relations Board has allowed individuals to complain in cases where the individual has a substantive right which may need enforcing. In deciding to hear an anti-discrimination allegation by an individual under section 66 of the Labour Relations Act, the Labour Board in Dufferin Aggregates articulated why it was important that individuals with substantive rights not be confined to duty of fair representation complaints:

There may be numerous reasons why an employee may decide not to file a complaint against his union even though his union refuses to process a complaint against the employer alleging a violation of the Labour Relations Act. The employee may consider that he and his union have an honest difference of opinion as to whether or not the employer has acted contrary to the Act.... If the Board were to accept the employer's argument in this matter, an employee, in order to protect his rights, would be put in a position of having to file a complaint against his union even if he is of the view that the union has not in fact breached its duty of fair representation as that duty has been interpreted by the Board. Not only would this encourage the filing of vexatious complaints but also, in the Board's assessment, it would run counter to the aims of the Labour Relations Act to require an employee to proceed against his union simply and only to enforce his individual rights, established by the Act. Dufferin Aggregates, [1983] O.L.R.B. Rep. July 1031 at paragraph 12(emphasis added).

Similarly, in pay equity, the only people who benefit are those in female job classes, and the anti­discrimination nature of the Act must give these individuals access to an inquiry where they believe their statutory rights have been violated. Section 7 does not require an individual to bring a complaint of a breach of the duty of fair representation in order to enforce her rights under the Pay Equity Act. The Union and Employer may have in good faith agreed to a compensation practice which contravenes the Act's requirement to establish and maintain pay equity. It makes neither labour relations sense nor pay equity sense to force employees to complain about the conduct of the Union, if they believe there is a contravention of substantive rights granted to them by the Act, and they believe that the contravention agreed to by both the Union and the Employer was an honest mistake or oversight, and not a result of arbitrary, discriminatory or bad faith conduct.

1 Although a deemed approved plan creates a presumption that the statutory requirements have been met, the Tribunal has held that a deemed approved pay equity plan is not a bar to an inquiry by the Tribunal, where the plan is alleged to contravene the provisions oft he Act. [Ontario Northland (1992), 3 P.E.R. 166 at paragraph 18] The Tribunal will accord considerable deference to parties with the obligation to negotiate and implement pay equity, particularly where the issues are complex and there may be a range of decisions which meet the standards of the Act. However, we find parties are not competent by agreement to contract out of the statutory provisions. [Ontario Human Rights Commission v. Borough of Etobicoke (1982),1982 CanLII 15 (SCC), 132 D.L.R. (3d) 14 (S.C.C.) at 23-24; J.D.S. Investments Limited, [1982] O.L.R.B. Rep. Nov. 1657 at 1659; Leisure World Nursing Homes Limited v. Director of Employment Standards (1980), 1980 CanLII 1681 (ON HCJ), 29 O.R. (2nd) 144 (Div. Ct.) at 155]. The Divisional Court in Ontario Northland, in concluding that the Tribunal has jurisdiction to consider or direct an alteration in a deemed approved pay equity plan, held that section 7 is a safeguard to the general bargaining scheme of the Act, and concluded that: "any other result would leave employers and bargaining agents free to contract out of the Act, rendering sections 7(1) and 7(2) ineffective."[Ontario Northland Transportation Commission and Pay Equity Hearings Tribunal and Transportation Communications International Union ,Lodge 1463, unreported decision of the Ontario Court of Justice (Div. Ct.) June 28,1993(Lane, Then, Dunnett JJ.) at page 2]

2 In order for the Tribunal to inquire into an alleged violation of section 7 of the Act, the individual or group of employees must establish a prima facie case that section 7 has been violated for their particular job class. A prima facie case is one where, I fall the facts pleaded by the Applicant were accepted as true, they would establish a contravention of the Act and establish grounds for the remedy sought. [Watson et al., Canadian Civil Procedure, (1988) Toronto: Emond Montgomery Publications Limited, (3d ed.) at page 417] Such a threshold inquiry, without the need for a motion from another party, is appropriate because an individual complainant must ground her or his complaint in a substantive provision of the Act, which, if can been proven to have been contravened, rebuts the presumption in a deemed approved plan, that the Employer and the Union complied with the Act.

26. In this case, in alleging that section 7 has been violated, the Applicants have relied upon the standards set out in sections 4, 5 and 6 of the statute. These sections require that systemic gender discrimination in compensation shall be identified by under taking comparisons between male and female job classes in terms of their compensation and in terms of the value of the work performed. [Pay Equity Act, section 4] The criterion to be applied to determine value must be a composite of skill, effort, responsibility and working

conditions. [Pay Equity Act, section 5] The Tribunal has held that section 5 requires a standard of correctness, that skills, effort, responsibility and working conditions must be accurately and completely recorded and valued. [Haldimand-Norfolk (No. 6), supra, at para. 24]

3 The Applicants allege that the job content of the affected job classes was ignored and excluded, preventing the work of these female job classes from being made visible and explicit. The Applicants rely upon a report prepared by Dr. Linda Ames, who has been previously recognised by this Tribunal as an expert in job evaluation questionnaire construction, reliability and validity testing procedures, data management and analysis, and comparison systems as they relate to gender bias. [Haldimand-Norfolk (No. 6), supra, at para. 14] The parties agreed that for purposes of arguing the preliminary motion, that the facts alleged in both the pleadings and Dr. Ames report are assumed to be true. [Pre-hearing Memorandum of Agreement, November 30, 1993]

4 Dr. Ames' Report was based upon the documents furnished by the Employer, specifically: questionnaires, computer print-outs of a factor analysis using questionnaire results, SAS programs for variable construction, job classes and factor values, computer print-out of regression analysis to capture current pay policy, regression analysis after pay equity adjustments were made, and explanation of the methodology.

5 To briefly summarise the Report's findings, Dr. Ames concluded that the plan did not utilise a gender neutral comparison system to evaluate comparable worth. [Report by Dr. Lynda Ames, "Analysis of the OPS/OPSEU pay equity plan", April 1992 at pages 1 and 28.] She found that job content characteristic of the nursing jobs was deliberately and inexplicably deleted. [Ames' Report, page 1] She concluded that the single statistical correction to address gender bias was not sufficient to produce an equitable pay system. [Ames' Report, page 2] Dr. Ames also concluded that the job comparison system of the plan is not inclusive of nursing jobs, and that some elements of the nurses' work were completely missing from the system, while caregiving elements had been negated. She noted that skills and knowledge required in the work of these job classes was excluded and not valued. [Ames' Report, page 8] Dr. Ames reported that "the exclusion of important parts of nursing work from the measures of job content and thus the comparison of jobs means that the nurses' work is left invisible. There is no measure of these skills and mental demands in the OPS/OPSEU system." [Ames' Report, pages 8, 9] Dr. Ames found that in other factors, value judgements were arbitrary, and that in a number of factors judging relative worth, the system favoured male dominated jobs, indicating a lack of gender neutrality. She also formulated a number of conclusions using the regression analysis. Finally, there were a number of areas in which Dr. Ames found substantive judgements were made, statistical rationale was not available, or gender analysis was not conducted, and in which she concluded that she had insufficient information to draw any conclusions with respect to gender bias in the system. [Ames' Report, pages 6, 8 , 9, 13, 17]

30. It is not these conclusions which the parties agreed were true for purposes of this motion, but rather the alleged facts contained in the pleadings and the Report. Summarized here are only those alleged facts which may ground a complaint by these individuals. Dr. Ames based her Report and conclusions with respect to job content on the following alleged facts about the classes in dispute:

-the requirement to co-ordinate their own work process and projects was omitted and not collected or valued,

-the requirement to read and understand longer materials such as detailed forms, standard memos and letters was not omitted and not collected or valued,

-the requirement to give input to decisions affecting individual members of the general public, clients, patients, residents or inmates was omitted and not collected or valued,

-the requirement of input as to how methods and procedures are used in work duties was omitted and not collected or valued,

-work requirements of conducting investigative or assessment interviews such as clinical assessments, job interviews, hearings or operational audits were omitted and not collected or valued. [Ames' Report, page 8]

• time required to comfort people, time spent in dealing in person with clients, residents, inmates or members of the public who are upset, angry or confused was omitted, [Ames' Report, page 12]

-time spent with people in emergencies or in extreme situations was omitted and not collected,

-exposure to falling objects and objects which are thrown was omitted,

-risk of injury or occupational illness was omitted. [Ames' Report, pages 12, 13,14]

• job content of their job classes was ignored, excluded and not captured by the system. [Application, page 3]

-the work requirements were not made visible or positively valued.[Application, page 3]

6 Both Courts and tribunals have held that a tribunal or Court should exercise its discretion to dismiss a complaint for failing to disclose a prima facie case with caution and only in the clearest of cases, particularly in a case of first impression. [Krouse v. Chrysler Canada Ltd., 1970 CanLII 430 (ON HCJ), [1970] 3O.R.135;12D.L.R. (3d) 463 (Supreme Court of Ontario); Hadley et al, supra, at paragraph 12; J. Pavia Foods Limited, [1985] O.L.R.B. Rep. May 690] The instant case is precisely one of first impression, in that it is the first case before the Tribunal where unionized employees have alleged a contravention of standards set by the Act. The question for the Tribunal is therefore, if these alleged facts are assumed to be true, as the parties have agreed for purposes of this motion, have the Respondents contravened the requirements of the Act, specifically, sections 5 and 7 of the Act, and is there a remedy for this alleged breach? In this case, the Union reserved its right to make further submissions on whether the Applicants have established a prima facie case. In my view, the Tribunal should proceed to hear the parties submissions on whether a prima facie case has been established.