Pay Equity Hearings Tribunal
0461-93 Hilton Works, Frost Works, Parkdale Works, Frost Wire Products Ltd., Stelwire Ltd., and General Office, Applicants v. Jane MacDonald, Respondent
Before : Mary Ellen Cummings, Vice-Chair; Bruce Budd and Janet Slone Taylor, Members
Appearances: James Noonan, Roger Fulton and Jerry Joy for the Applicants; Leanne Chahley for the Respondent
Cite As: Hilton Works (No.3) (1993), 4 P.E.R. 76
Changed Circumstances
The Tribunal concluded that the existence of a pay equity plan is a precondition to any inquiry into an alleged change in circumstances. Once an employer is identified as the pay equity employer it cannot access the change in circumstances provision until a pay equity plan is in place.
Changement de situation
Le Tribunala statué que l'existenced'unplan d'équité salariale est une condition préalable à toute enquête sur un prétendu changement de situation. Une fois qu'un employeur est défini comme l'employeur aux fins de l'équité salariale, il ne peut se prévaloir de la disposition portant sur un changement de situation qu'une fois qu'un plan d'équité salariale a été élaboré.
DECISION OF THE TRIBUNAL, OCTOBER 13, 1993
1The Tribunal gave an oral ruling in this matter on August 23, 1993. These are our reasons for that decision.
2The Employers made an application to Review Services alleging that there had been a change in the identityof the Employers. The Review Officer issued a notification of decision pursuant to subsection 23 of the Pay Equity Act, R.S.O. 1990, c. P.7 (the "Act"). The Review Officer determined that the complaint should notbeconsideredbecause itis"notwithinthe jurisdictionofthe Review ServicesBranchofthe Pay Equity Commission." The Employers wrote to the Tribunal with respect to that notification, as did MacDonald,butinthecontextofarelatedfile. We determined that since the notification was a new matter, a separate application and response were necessary. After the Tribunal heard submissions and made its oral ruling, the actual ApplicationandResponsewerefiled. This unusual procedure was used because the parties were already before the Tribunal on the related matter and agreed that it was most expeditious to argue the issue at that time even though formal pleadings had not been completed.
- The Employers' application is related to the proceedings in Tribunal file 0391-92. In that case, the Employers challenge a Review Officer Order that found Stelco Inc. to be the employer of the Respondent, MacDonald. The Employers allege that Hilton Works, Frost Works, Parkdale Works and General Office (the "Business Units"), although related to Stelco Inc., are separate employers for the purposes of the Act. An issue arose as to at what point in time the determination of "employer" under the Act should be made. The Employers argued that the Business Units have been separate employers since at least 1988, but
arguedinthe alternative,thattheTribunalcould determine who isthe employer(s)atdifferent pointsintime. Such determinations would be most useful to the parties, it was argued, because they would know which entities have obligations under the Act today as well as who had them when the obligations under the Act arose. The majority of the panel concluded that an enquiry into who is the employer for the purposes of the Act must ask who is the employer on the "effective date" of the Act, January 1, 1988. The Tribunal declined to hear evidence ofwho is the employer(s) today in those proceedings on the basis that it was a separate and distinct question (Hilton Works (No. 2)(1993), 4 P.E.R. 171)
3Following that decision, the Employers made the application to Review Services that led to the proceedingsin this matter. In this matter, two more entitieswereaddedasApplicantsbecausetwoofthe Business Units incorporated subsequent to the start of proceedings in file 0391-92.
4The Employers reiterated that their Application in this case is an alternative to their argument in file 0391-92. In their view, the Business Units have been the employers from the "effective date" of the Act. However, should the Tribunal find that, for example, StelcoInc.wasthe employeronthe "effective date", the Tribunal should go on to hear evidence of any changes that have occurred in these Employers' organisations and render a decision determining who the employer(s) are today. Hearing this Application together with file 0391-92 would make that possible.
5The first question, however, is whether the Tribunal has the jurisdiction to entertain an allegation of changed circumstances on the facts in this case.
- The Employers rely on section 9 of the Pay Equity Amendment Act, 1993, S.O. 1993, c. 4 (the "Amendment Act") which amends section 14 of the Act as follows:
14.2 (1) In an establishment where no employee is represented by a bargaining agent, if the employerisofthe view thatbecauseofchangedcircumstancesinthe establishment the pay equity plan for the establishment is no longer appropriate, the employer may amend the plan and post in the workplace a copy of the amended plan with the amendments clearly indicated.
(2) Subsections 15 (2) to (8) apply, with necessary modifications, in respect of the amended plan.
(3) Ifa plan is amended under this section, the compensationadjustment foreachposition to which the amended plan applies shall not be less than the adjustment that would have been made under the plan before it was amended.
6Subsections 14.1(5), (6) and (7) provide parallel provisions for the non-union part of a unionised establishment. The provisions ofthe Amendment Act then give employees an opportunity to review and object to an amended plan, with resort to Review Services and, eventually, the Tribunal.
- It is agreed that none of the Employers have posted pay equity plans, although the mandatory posting dates for some were January 1, 1990 and at least one, January 1, 1991. Counsel for the Employers acknowledgedthatthe circumstancesof this case do notfallsquarelyintosection14.1 ofthe Amendment
Act because there is no pre-existing plan that could be amended. However, he argued that it would be highlytechnicalto requiretheseEmployersto post plans beforecomingtothe Tribunaltohave the question of employer determined, both in the past and present. He argued that the Tribunal should look at the changedcircumstancesinthe Employers'organisations atthe same time itislooking atwho isthe employer on the "effective date" since it is the same question that is already before the Tribunal in file 0391-92. Otherwise, the parties will face a proliferation of proceedings before they can turn their minds to meeting their obligations under the Act.
7The Employers also relied on the Tribunal's jurisdiction under subsection 30(1) of the Act to "...to determine all questions of fact or law that arise in any matter before it..." Counsel argued that who is the employer is a question of fact that must be determined at all relevant times.
8Counsel for MacDonald arguedthattheTribunalhas no jurisdiction to enquire into an allegation of changed circumstances absent an amended pay equity plan. Further, if the Tribunal does have the jurisdiction, it should not exercise it because to do so would unnecessarily prolong these proceedings and most importantly, deny employees the right to an initial plan before proceeding to look at any changed circumstances.
DECISION
- The Tribunal has concluded that the existence of a pay equity plan is a precondition to assuming jurisdictiontoenquireintoanallegationofchangedcircumstances. The plain language of sections 14.1 and
14.2 of the Amendment Act requiresthe Tribunalto looknotsimplyatthe factof changed circumstances, butattheimpactofthechangedcircumstancesontheappropriatenessoftheplan. Without a plan, changed circumstances have no context that the Tribunal can examine under these sections.
1 We do not find that the Pay Equity Act or the Amendment Act otherwise give the Tribunal jurisdictionto enquireintothe identityofthe employerbetweenthe point ofthe initial determination and the preparation and posting of a plan. We agree with the Employers' position that identifying who is the employer is a critical first question. However, once that initial determination is made, there appears to be no mechanism to revisit the question unless and until a pay equity plan is in place.
2 Such a conclusion is consistent withthe legislative scheme. The Act requires Employers to examine their existing compensation practices and, within stated timeframes, take measures toestablishpayequity intheir establishments. The Act mandatesdeadlinesforthepostingofpayequityplans and commencement of making payouts. In this context, it is not surprising that there is no jurisdiction to examine changed circumstances at every point in the development of a pay equity plan. After determining which entity has the obligations under the Act, that employer must go on to prepare and post a plan, without delay.
3 In conclusion, we find that we do not have jurisdiction to enquire into changed circumstances on the facts of this case.