0355-92 Southern Ontario Newspaper Guild, Applicant v. Canadian Publishing Division of Maclean-Hunter Limited, Respondent 0412-93 Maclean's Magazine, Applicant v. Southern Ontario Newspaper Guild, Respondent
Before : Mary Ellen Cummings, Vice-Chair; Susan Genge and Charles Taccone, Members
Appearances:LeeShouldice and CharlesLeeforMaclean'sMagazine and CanadianPublishingDivision ofMaclean-HunterLimited;KathleenMartin, Luiza Monteiroand Lorne SlotnickfortheSouthernOntario Newspaper Guild
Cite As: Maclean's Magazine (No. 1) (1993), 4 P.E.R. 16
Practice and Procedure - Prematurity
The Tribunal refused to proceed with that portion of Maclean's Application which raised red-circling as an issue. In the absence of a sufficient factual basis to support Maclean's claim, the Tribunal could not properly inquire into the matter. The Tribunal declined to render a decision in the abstract.
Pratique et procédure - Caractère prématuré
Le Tribunal a refusé de donner suite à la partie de la requête de Maclean's qui portait sur la question du salaire étoilé. En l'absence de données factuelles suffisantes appuyant la requête de Maclean's, le Tribunal a jugé qu'il ne pouvait pas vraiment faire enquête sur ce point. Il a donc refusé de rendre une décision dans l'abstrait.
DECISION OF THE TRIBUNAL, MAY 5, 1993
1We note that in each of the Applications, the Employer is differently named. We ask the parties to advise the Tribunal of the correct name of the Employer at the next day of hearing so that we may amend the styles of cause.
2The Employer, in file 0412-92, applied to the Tribunal with respect to two Review Officer Orders, dated February 18, 1991 and October 2, 1992. TheUnion'sApplicationinfile 0355-92 alleges that the Employer has failed to bargain in good faith.
3The parties raised anumberofpreliminaryissues. This decision addresses the Union's argument that the Employer has failed to make out a prima facie case with respect to that part of the October 7, 1992 Order that deals with red-circling. In the alternative, the Union argued that the matter is not ripe for adjudication.
4The Employer asks the Tribunal to find that red-circling during the pay equity process is an acceptable method for determining appropriate job rates for both male and female job classes. In its preliminary argument,the Unionsubmittedthatthe Employerhadnotmadeout a prima facie case, because it had not alleged a violation of the Pay Equity Act, R.S.O. 1990, c.P.7, nor had it pleaded any of the elements in subsection 8(1)(d).
5The Employer responded that there were no real facts to plead because it is seeking a prospective interpretation of subsection 8(1)(d). The Employer wants to know if it canavailitselfofthe provisions of the subsection before proceeding further. The Employer also argued that since the Review Officer had dealt with the matter, and the Employer had requested a hearing with respect to the Order, the Tribunal was obliged to hear and decide the matter pursuant to subsection 25(1) of the Act.
6Subsection 8(1)(d) provides as follows:
8 (1) This Act does not apply so as to prevent differences in compensation between a female job class and amale jobclassifthe employer is able to show that the difference is the result of,
(d) the personnel practice known as red-circling, where, based on a gender-neutral re-evaluation process, the value of a position has been down-gradedand the compensationofthe incumbent employee hasbeen frozenor hisor herincreasesincompensationhave beencurtaileduntilthe compensation for the down-graded position is equivalent to or greater than the compensation payable to the incumbent;
1 It is apparent from reading the subsection that a number of requirements must be met before subsection8(1)(d)canbereliedon. The Employer must show a difference in compensation between male and female job classes; that a gender neutral re-evaluation process has been used; that the value of a position has been down-graded; and that the compensation of an incumbent has been frozen or curtailed.
2 A variety of different fact situations in relation to red-circling may exist. An employer may be able to prove that a particularfactsituationmeetstherequirementsofsubsection 8(1)(d). Because we believe that the particular facts in each situation will be integral to determining whether the requirements of subsection 8(1)(d) have been met, we are unwilling to render a decision in the abstract.
3 Consequently, we find that the part of the Employer's Application with respect to red-circling is premature. If the parties progress to the point where the Employer is able to provide a sufficient factual basis for its application, we will permit the Employer to amend its Application. Then we can fulfil our obligations under section 25 to hold a hearing and decide the issue before us, subject to any preliminary issues that may arise. In the event that the Employer is able to furnish facts before the conclusion of our hearingonthe other mattersbeforeus,wewillentertainsubmissions thatwedealwiththe red-circlingissue at that time.