Pay Equity Office of the Pay Equity Commission v. Hamilton Civic Hospitals, 1995 CanLII 7025

PAY EQUITY HEARINGS TRIBUNAL

0466‑93 Pay Equity Office of the Pay Equity Commission, Applicant v. Hamilton Civic Hospitals, Canadian Union of Public Employees, Local 794, and Group of Employees (Pharmacy Technicians), Respondents

0482‑94 Group of Employees (Senior Pharmacy Technicians), Applicant v. Hamilton Civic Hospitals, and Canadian Union of Public Employees, Local 794, Respondents

0490‑94 Group of Employees (Henderson General Hospital ‑ Admitting Clerks), Applicant v. Hamilton Civic Hospitals (Henderson Division), and Canadian Union of Public Employees, Local 794, Respondents

0502‑94 Group of Employees (Pharmacy Clerks), Applicant v. Hamilton Civic Hospitals, and Canadian Union of Public Employees, Local 794, Respondents

0516‑94 Group of Employees (Ward Clerks), Applicant v. Hamilton Civic Hospitals, Pay Equity Office of the Pay Equity Commission, Canadian Union of Public Employees, Local 794, Group of Employees (Admitting Department), Group of Employees (Senior Pharmacy Technicians), Group of Employees (Pharmacy Technicians), Lidia Menechella, and Brenda Walhsley, Respondents

0517‑94 Ruth Redshaw, Group of Employees (Hamilton Civic Hospitals ‑ Pharmacy Technicians), Applicants v. Hamilton Civic Hospitals, Pay Equity Office of the Pay Equity Commission, Canadian Union of Public Employees, Local 794, Group of Employees (Admitting Department), Group of Employees (Senior Pharmacy Technicians), Group of Employees (Ward Clerks), Lidia Menechella and Brenda Walhsley, Respondents

0532‑94 Hamilton Civic Hospitals, Applicant v. Pay Equity Office of the Pay Equity Commission, Canadian Union of Public Employees, Local 794, Group of Employees (Admitting Department), Group of Employees (Senior Pharmacy Technicians), Group of Employees (Ward Clerks), Group of Employees (General Clerk 3), and Group of Employees (Pharmacy Technicians), Respondents

0534‑95 Pam Oldham‑Lewis, Marg Gilbertson, Antoinette Goodbrand (Senior Clerk 4s), Applicants v. Hamilton Civic Hospitals, Pay Equity Office of the Pay Equity Commission, Canadian Union of Public Employees, Local 794, Group of Employees (Admitting Department), Group of Employees (Senior Pharmacy Technicians), Group of Employees (Ward Clerks), Group of Employees (Pharmacy Technicians), Lidia Menechella, and Brenda Walhsley, Respondents

Before: Phyllis Gordon, Chair and Members Janet Slone‑Taylor and Bruce Budd

Appearances: Robert Salisbury for the Hamilton Civic Hospitals; Nancy Rosenberg for the Canadian Union of Public Employees; Michelle Sherwood for certain individuals and Groups of Employees; Randy Schroeder for certain Groups of Employees

Cite as: Hamilton Civic Hospitals (8 May 1995) 0466‑93; 0482‑94; 0490‑94; 0502‑94; 0516‑94; 0517‑94; 0532‑94; 0534‑95

DECISION OF PHYLLIS GORDON, CHAIR AND JANET SLONE TAYLOR, MEMBER, MAY 8, 1995

INTRODUCTION

1. There is a lengthy and on-going pay equity process at the Hamilton Civic Hospitals (the "Employer") for those employees who are represented by CUPE Local 794 (the "Union"). This large public sector employer had an obligation to post a pay equity plan on January 1, 1990 after negotiating it with the Union which represents approximately 1400 employees. The plan has not yet been posted and it is apparent that there is a great deal of frustration with this delay. The

job classifications in this bargaining unit are primarily technical, clerical, maintenance or service

in nature and range in duties from those of hospital clerk to registered practical nurse. The Hamilton Civic Hospitals are comprised of two divisions, the Henderson Division and the General Division.

2. These proceedings result from an order of a Review Officer, which was issued on April 22, 1993. According to the order, the Employer and the Union had advised the Pay Equity Commission in late 1989 and early 1990, respectively pursuant to s.14(6) and s.14(7) of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (the "Act") that they had not agreed on a pay equity plan. Their attempts to negotiate pay equity had not been successful. The Review Officer assumed jurisdiction under s.24(1) of the Act and ordered the parties to conclude a pay equity plan incorporating a specific point banding she set out in the order.

3. Initially there were eight files before the Tribunal which all pertain to the order of the Review Officer dated April 22, 1993. A brief description of each file is as follows:

(a) 0466-93 involves an application by the Pay Equity Office seeking enforcement of the order. The Review Officer formed the opinion that neither party was complying with the order and pursuant to s.24(5) of the Act, referred the matter to the Tribunal. However, according to the Pre-Hearing Memorandum of Agreement, the "Commission has since advised the parties by letter that it will not be responding to the Employer's application to revoke the order, nor will it be seeking standing to participate in the application. Pending the outcome of the Employer's application, the Commission will not be proceeding to hearing to enforce the order."

(b) 0482-94 involves an application by a group of employees described as Senior Pharmacy Technicians who seek revocation or amendment of the order. The Review Officer decided that she was unable to effect a settlement of their complaint to Review Services and notified the parties and the Tribunal that she would not be making an order, pursuant to s.23(2) of the Act.

(c) 0490-94 involves an application by a group of employees described as Admitting Clerks at the Henderson Division of the Hospital who seek revocation or amendment of the order. They disagree with any point banding in which members of the Henderson Admitting Department are not in the same band as members of the Admitting department of the General Division of the Hospital. The Review Officer decided that she was unable to effect a settlement of their complaint to Review Services and notified the parties and the Tribunal that she would not be making an order, pursuant to s.23(2) of the Act.

(d) 0502-94 involves an application by a group of employees described as Pharmacy Clerks who seek revocation or amendment of the order and specifically disagree with the placement of Pharmacy Clerks in the point banding ordered by the Officer. The Review Officer decided that she was unable to effect a settlement of their complaint to Review Services and notified the parties and the Tribunal that she would not be making an order, pursuant to s.23(2) of the Act.

(e) 0516-94 involves an application by a group of employees described as Ward Clerks who seek enforcement of the order. The Review Officer decided that she was unable to effect a settlement of their complaint to Review Services and notified the parties and the Tribunal that she would not be making an order, pursuant to s.23(2) of the Act.

(f) 0517-94 involves an application by a group of employees described as Pharmacy Technicians who seek enforcement of the order. The Review Officer decided that she was unable to effect a settlement of their complaint to Review Services and notified the parties and the Tribunal that she would not be making an order, pursuant to s.23(2) of the Act.

(g) 0532-94 involves an application by the Employer seeking revocation of the order. It proposes additionally the remedy of a direction by the Tribunal that the Hospital and the Union negotiate and post a pay equity plan within three months of the order of revocation.

(h) 0534-95 involves an application by a group of employees described as Senior Clerks 4s who seek enforcement of the Review Officer's order. The Review Officer decided that she was unable to effect a settlement of their complaint to Review Services and notified the parties and the Tribunal that she would not be making an order, pursuant to s.23(2) of the Act.

4. At a pre-hearing conference it was agreed by everyone involved that the substantive issue to be decided by the Tribunal is whether the order should be revoked. The Union adopts a fairly similar position to the Employer regarding the revocation of the order and for the most part agrees with the remedial relief sought by the Employer, with some variation. Both the Employer and the Union object to the various groups of employees participating at the revocation hearing on the basis that they have no standing. They also say that these groups have no standing to seek enforcement of the order.

5. Just prior to the hearing on the preliminary matters, which began on February 22, 1995, the Employer and the Union concluded their on-going pay equity negotiations and reached agreement on the plan they intend to post. They consider this agreement to be a binding settlement within the meaning of s.25.1 of the Act. We were advised that this recently negotiated plan does not follow the directions of the Review Officer's order in some material respects. We assume the Employer and the Union have not advised the Pay Equity Office about the settlement or consulted with the Office regarding it.

6. Upon learning of this settlement, the three groups of employees who sought revocation of the order advised the Tribunal in writing that they were withdrawing their request for standing, although they wished to receive compensation for the time already spent in these proceedings. These groups are the Senior Pharmacy Technicians, in File #0482-94; the Admitting Clerks working at the Henderson Division, in File #0490-94; and, the Pharmacy Clerks, in File #0502-94.

ISSUES

7. This decision deals with the following issues:

1. Do groups of employees who are within a bargaining unit have standing to participate in a hearing independently of their bargaining agent, where the Employer is seeking revocation of the Review Officer order which directs the Employer and the Union to conclude a plan in a specific manner? Do these same employees have standing to seek enforcement of the order that was made against the Employer and their bargaining agent? In these complex proceedings, who is properly a party to the matter within the meaning of s.25.1 of the Act?

2. If these groups of employees have standing, is a representative of each of the employee groups entitled to compensation for the time spent at these Tribunal proceedings?

DECISION

8. While the groups of employees are entitled to file a complaint with the Commission that there has been non-compliance with an order of the Commission pursuant to s.22(1) of the Act, they do not have standing at the Tribunal to seek enforcement of the order. They are also not entitled to participate at the revocation hearing brought by the Employer and are thus not a party for the purposes of a settlement filed under s.25.1. The Pay Equity Office is not a party to the settlement and is unable to pursue its compliance referral under s.24(5). The present proceeding is therefore concluded.

ANALYSIS

9. The Employer and the Union object to groups of employees participating in these proceedings for several reasons. Their position is that the Act provides that the Employer and Union have the obligation to negotiate a pay equity plan, and that individuals or groups of employees in a bargaining unit have no responsibility with respect to this task. As the subject of this hearing is the assessment of an order directing those negotiations to take a particular form, the employees' requests to participate are premature. They suggest that their position is well illustrated by the varying interests of the different groups of employees, and the distinctly divergent outcomes sought by them.

10. The Employer and the Union also state that even though the employees are not entitled to standing at this stage of the process, they are not necessarily excluded from raising fundamental issues in the future. In their view, if their plan fails to meet the standards of the Act, the groups of employees may be able to complain that s.7 of the Act has been violated. In the Union's view, the groups of employees also have another available remedy which they have not pursued, a complaint against their bargaining agent for a breach of the duty of fair representation.

Effect of seeking compliance with the order

11. The groups of employees advance several arguments which they say establish their entitlement to participate. In part they argue that as they seek enforcement of the order, they thereby have a right to participate in the revocation hearing. They ground their compliance application in sections 22(1), 24(6) and 32(1)(b) of the Act, which read as follows:

s.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.

s.24(6) An employer or bargaining agent named in an order under this section may request a hearing before the Hearings Tribunal with respect to the order, and, where the order was made following a complaint but the complaint has not been settled, the complainant may also request a hearing.

s.32(1) Where a hearing is held before the Hearings Tribunal or where a review officer investigates for the purposes of effecting a settlement of an objection or complaint, the parties to the proceeding are,

(a) the employer;

(b) the objector or complainant;

(c) the bargaining agent (if the pay equity plan relates to a bargaining unit) or the employees to whom the plan relates (if the plan does not relate to a bargaining unit); and

(d) any other persons entitled by law to be parties.

12. The groups of employees allege that the failure of the Employer and the Union to post a plan in accordance with the order is a contravention of an order of the Commission, within the meaning of s.22(1). They say they have made a complaint of this failure to comply with the order, and their complaint has not been settled. Thus, they are entitled to a hearing pursuant to s.24(6) of the Act. They also say that as they are complainants pursuant to s.32(1)(b), they can seek enforcement.

13. We do not agree with these conclusions in the circumstances before us. We agree that s.22(1) provides the avenue whereby groups of employees are able to raise their concerns with the Commission that an order has been contravened. This section, which begins the Enforcement Part of the Act, sets out who may initiate a complaint with the Commission and about what. It is one of many provisions which comprise the intricate enforcement process under the statute. It does not of itself provide for anything beyond the filing of a complaint with the Commission and does not necessarily lead to a hearing on the merits of the complaint at the Tribunal. As noted in the Ontario Northland judgment of the Divisional Court, complaints to the Commission under s.22(1) reach the Tribunal via the procedural mechanisms of sections 23(1), 24(3), 24(6) and 25, (1993) 4 P.E.R. 19 at page 20.

14. Similarly, s.32 (1)(b) does not on its own confer a substantive right to a hearing before the Tribunal. Rather, it stipulates who will be parties to a hearing when a hearing is to be held. Its purpose is to ensure that the appropriate interests are present at any particular hearing. Thus, if a hearing is to be held as a result of an objection or a complaint, those making the objection or the complaint must be included. It does not state that everyone who brings a complaint to Review Services is entitled to a hearing at the Tribunal. The Act carefully sets out in what circumstances the Tribunal is to hold a hearing. To give the meaning proposed by counsel to this section would make the rather complex and deliberate structure unnecessary, for all complainants would be entitled to a hearing, regardless of the complaint.

15. The Tribunal considered the issue of whether a group of employees had standing to enforce an order in Melitta Canada Inc., (7 November 1994) 0519-94 (P.E.H.T.). The Tribunal held that the employees did have standing pursuant to s.24(6), in paragraph 7, as follows:

16. Moreover, s.24(6) is noteworthy in that it does not restrict the ability to request a hearing to those against whom an order has been made. The section specifically contemplates a request for enforcement in that the original complainant may also request the hearing, when the order made following the complaint did not result in a settlement of the complaint.

17. Section 24(6) recognizes that those against whom orders are made, employers or bargaining agents, have a right to a hearing. Similarly, a complainant who filed a complaint which did not settle and which led to the order has the right to a hearing, including a hearing for enforcement. This will include employees where the order arose out of their complaint, which is what occurred in Melitta. It is not what took place here. In the present case the Review Officer made the order on her own initiative after the Employer and the Union had advised that they had not agreed to a plan pursuant to ss.14(6) and (7) and some considerable time had passed with unresolved negotiations. The groups of employees filed their complaints subsequent to the order.

18. While s.24(6) does not in these circumstances entitle the groups of employees to seek compliance with the order, s.24(5) is another mechanism whereby the non-compliance can be raised at the Tribunal. The Pay Equity Office may act on its own information and follow-up after issuing an order, or, after the fact of non-compliance is raised with the Commission in a s.22(1) complaint. We expect there will be instances when the Office will assume carriage of the enforcement process pursuant to s.24(5) at the request of employees who are unable to seek enforcement independently, because of the limits in s.24(6). Where a concern is raised with the Review Officer, he or she has the duty to carefully review the situation, the power to ascertain whether the order has been implemented and the knowledge of the circumstances to evaluate when it is appropriate to seek enforcement.

19. We note that the Review Officer notified the parties and the Tribunal pursuant to s.23(2) that she would not be making orders in the applications of the groups of employees for enforcement of the order or for variation or revocation of the order. Thus, these groups of employees have come before us as a result of s.25(1)(a) of the Act which provides that the Tribunal "shall hold a hearing (a) if a review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24(3)".

20. However, in a hearing pursuant to s.25(1)(a), as in any other hearing, the Tribunal is to consider all relevant questions, including challenges to jurisdiction and standing. The section does not confer a right to a full hearing on the merits of the complaint, if we are precluded for other reasons from proceeding. In this case, as the Employer and the Union have successfully challenged the standing of the groups of employees to seek enforcement of the order, this subsection does not confer any independent right to a hearing on the merits. An analogous decision was reached in Peterborough (1991), 2 P.E.R. 86 at paragraph 14, when the Tribunal found that ss.25(1)(b) does not automatically entitle the applicant to a full hearing where there was an appropriate motion to dismiss for lack of a prima facie case.

Standing at the Revocation Hearing

20. Despite their position that their recent negotiation of a plan results in a settlement of the substantive matters before the Tribunal, the Employer and the Union agree with the groups of employees that it is necessary to determine whether the employees would be entitled to participate in the revocation hearing, had the settlement not been reached. If the groups of employees are properly considered parties to the matter, then their participation in the settlement would be necessary for it to be an effective settlement within the meaning of s.25.1(1) of the Act which reads as follows:

s.25.1(1) The parties to a matter in respect of which the Hearings Tribunal is required to hold a hearing may settle the matter in writing.

i) Statutory Provisions

21. Counsel for the groups of employees submits that her clients' right to be heard at the revocation hearing is grounded in s.22(1) as well as s.32(1)(d) of the Act, which are set out above. In our view, while the s.22(1) complaint made by the groups of employees demonstrates their significant concern about the delay in arriving at a pay equity plan, it does not ground a right to participate at the revocation hearing.

22. Section 32(1)(d) does not include the groups of employees in this instance. On a reading of the whole of section 32(1), it seems clear that the final subsection, s.32(1)(d), "any other person entitled by law" is referring to persons not enumerated in the preceding subsections. Subsection 32(1)(c) specifies that employees are parties when the plan does not relate to a bargaining unit and they are not designated as parties when the plan relates to a bargaining unit. It would be a very unusual conclusion to find that a specifically referenced but not included category of person could be included in the general language of s.32(1)(d), as being "other persons entitled by law". While there may be situations where employees who are represented by a bargaining unit are properly parties at the Tribunal, this will occur when they are "the objector or complainant", under s.32(1)(b). This is not the situation in the case before us.

ii) Common Law

23. Counsel for the groups of employees suggests that we must adopt the common law test and grant standing as the outcome of the case will have a "substantial and direct effect" on her clients. The Employer and the Union argue that were the substantially and directly affected test to be applied in the circumstances of this case, any employee affected by a pay equity plan would be entitled to party status, regardless of the specific obligations set out in the Act. This result would undermine the structure of the Act, and the carefully assigned responsibilities under it. We agree with this submission.

24. The same conclusion was reached in York Region Board of Education (1993), 4 P.E.R. 51, where the issue was whether individual teachers could be granted standing to intervene as parties in a proceeding initiated by the bargaining agent or employer with respect to an ordered pay equity plan. This decision is directly relevant to the requests for standing before us. Individual employees or groups of employees have been given no statutorily specified role to play in the development of a pay equity plan. In light of this, they have no role to play when an order against their employer and the union regarding the development of the plan for their worksite is being considered at the Tribunal.

iii) Human Rights Aspect

25. Counsel for the groups of employees submits that our determination of the standing questions must include a focus on the human rights aspects of the Pay Equity Act. She urges us to be mindful of the dual nature of the legislation, both its labour relations and human rights aspects. She argues that the large and liberal principles developed for the application of traditional human rights statutes are applicable.

26. In Counsel's view, human rights are individual rights, and individual women have a right to pay equity. This right therefore necessarily includes the right of individuals to be heard in the pay equity process. This is apparently to be the case even when there is no allegation of discrimination with respect to the process. Counsel did not clarify how extensive the right to participate might be, but at a minimum it includes the right to standing in this hearing.

27. We agree that the Act is anti-discrimination legislation. However, for the most part it is not concerned with questions of discrimination against individuals, nor with individual human rights. It is concerned with systemic gender discrimination in compensation in Ontario. The Act specifies the nature of the discrimination, defines it, and mandates the different processes for addressing it. In particular, the focus of the legislation is the evaluation of work performed in female job classes and the establishment of non-discriminatory compensation for this work. The tool used is the pay equity plan, the development of which in cases such as this is the responsibility of the employer and the bargaining agent. This is a process which responds to the systemic nature of the discrimination with the goal of establishing a systemic remedy.

28. At this stage, the substantive matter before us is the Review Officer order made against the employer and the bargaining agent regarding the development of the plan. It is not appropriate to incorporate into this part of the process a notion of individual human rights which would entitle individual employees to a right of standing to participate.

Pay Equity Office

29. The Employer and the Union indicated to the Tribunal that while they wished to post the negotiated plan immediately, they seek some assurance prior to posting that at least this stage of the process would not be the subject of further litigation. As the groups of employees are not entitled to standing at the revocation hearing, the settlement does not require their agreement. Similarly, as they do not have standing to seek compliance with the Review Officer's order in these particular circumstances, the Union and the Employer need not be concerned that such a request will be heard in the future. The next question is whether the Pay Equity Office has any unresolved role in these proceedings.

30. In general, the Pay Equity Office has the significant task of identifying when a compliance referral ought to be made, and in advancing this issue to the Tribunal. Thus, when a request for a hearing in respect of an order is made to the Tribunal after the referral by the Office, it is essential that the Office be given notice of the application. This notice enables the Office to assess its possible options.

31. In this case, the Office was served with the Employer's s.24(6) request for hearing. Prior to the pre-hearing conference, the Pay Equity Office advised the parties that it would not be responding to the Employer's application to revoke the order and would not be seeking standing to participate in the application. In our view, when it advised the parties in writing that it would not be seeking standing, as reflected in the Pre-Hearing Memorandum, the Office was indicating both that it did not see itself entitled to automatic party status nor did it wish to be a party in this particular revocation hearing. We agree that the Office does not have an automatic entitlement to party status in a s.24(6) hearing, and note that it is not specifically referenced as a party in s.32(1). In this case the revocation hearing is the "matter" which was settled by the Employer and the Union within the meaning of s.25.1(1), and the Office has no role in the settlement, as a result of its decision to not seek standing to participate.

32. We could speculate that, had the Office realized that the Employer and the Union would be negotiating a plan which would then become a settlement within the meaning of s.25.1, they would have opted to seek standing to participate. We decline to give any effect to such speculation because settlement is always a contemplated possibility in these matters. It is a direction actively encouraged by both the Pay Equity Office and the Pay Equity Hearings Tribunal. Moreover, the Act contemplates and encourages a self-managed process and explicitly provides for binding settlements prior to a hearing, which is what occurred in this instance.

33. The Pay Equity Office also advised that "pending the outcome of the Employer's application, the Commission will not be proceeding to hearing to enforce the order". The intention behind this phrase is not self-evident. In situations where there is a hearing with respect to the order, the compliance referral is automatically stayed, pursuant to s.25(1.1). However, other outcomes are possible. It may well be that the Office is simply indicating its desire to know what has transpired before relinquishing its role. For example, if the Employer decided to withdraw the revocation request, the Office could decide what action it wished to take. Or, because of the complexity of this case, the Office might have intended to maintain a potential for involvement should an unpredicted role become evident.

34. The remaining possible outcome is what actually occurred: a binding settlement pursuant to s.25.1(1). While the Office initially referred the non-compliance to the Tribunal prior to the settlement, it then stepped back and permitted the ordinary processes under the Act to occur. As a practical result, it would now only be possible to pursue the referral after the settlement has taken place.

35. In Scarborough (27 May 1994) 0470-94; 0497-94 (P.E.H.T.) the Tribunal considered whether the Pay Equity Office would be able to initiate a referral under s.24(5) after the parties had reached a s.25.1(1) settlement. After a careful analysis of the legislative history and the interrelationship of sections 24(5)(5.1)(5.2), s.25(1.1) and s.25.1(1), it concluded that the Office could not seek compliance with the order. In our view even though the Office in the present case started the s.24(5) referral earlier than was contemplated in the Scarborough decision, the pertinent factual question is the same: is there a settlement in existence at the time the Tribunal is asked to consider the compliance referral? We expressly adopt paragraphs 11, 12 and 13 of Scarborough, and thus we dismiss the Office's application as moot. It is our view that in the instant case the Office is precluded from pursuing the compliance referral.

36. This outcome is balanced by the requirement to provide the Office with notice of a request for hearing subsequent to a s.24(5) referral. If the Office has serious concerns about how a case may unfold, it is appropriate that they be raised early on in the process, and not after a settlement has occurred. In such circumstances the Office may decide to seek standing to intervene, if not to defend its order per se, then at least to raise the concerns. Such requests would be dealt with on a case by case basis. If standing is granted, then the Office would be a party to a s.25.1(1) settlement. This process is preferable on policy grounds, as well as being consonant with the language of the legislation. The process does not contemplate a role for the Office arising after a settlement has been negotiated, a process that would be a significant disincentive to settlement.

37. For these reasons, the parties to the revocation hearing are the Employer and the Union. The matter before us has settled by virtue of their negotiation of a pay equity plan and these proceedings are concluded.

DECISION WITH RESPECT TO THE COMPENSATION REQUEST

38. In light of this outcome the request for an order for compensation is for the most part academic. However, the groups of employees who withdrew from these proceedings have requested compensation for the time already spent at the Tribunal. We do not grant this request for the reasons set out in Metro Toronto (03 March 1995) 0465-93; 0471-93; 0478-93 P.E.H.T., given that the circumstances are the same.

DECISION OF THE TRIBUNAL MEMBER, BRUCE BUDD, MAY 8, 1995

1. I dissent from the majority's decision which may undermine the role of the Pay Equity Office (the "Office") in the pay equity process.

2. Section 22(1) of the Pay Equity Act is the avenue by which employers, bargaining agents and employees may allege a contravention of the Act or an Order of the Commission. In this case several groups of employees have alleged that the Order was not being implemented. Subsequently, as a result of her own investigation, the review officer filed a referral application to enforce the Order under section 24(5), alleging that both parties were not implementing the Order. With the filing of this application by the review officer, the Office became a party in the matter which was before us.

3. This process was laid out in the 1993 amendments to the Act following the Tribunal's ruling in Mississauga Hydro Electric Commission (1992) 3 P.E.R. 28. That decision high­lighted the lack of a clear avenue for the Office to seek enforce­ment of its Orders on its own initiative. Since the groups of employees in this case were heard at the Review Services stage and thereafter the Office initiated an enforcement application, there is no need for the groups seeking enforcement to be represented at the Tribunal hearing. In effect the Office assumed carriage of the issue on the groups' behalf.

4. The Act, pursuant to ss. 24(5.2), mandates the Tribunal to proceed with the Office's enforcement application to the exclusion of all other issues. This did not happen in this case. Instead, the employer decided to test the validity of the Order before the Tribunal with its own application. A Tribunal ruling on the merits of the Order would render the enforcement application moot as a result of subsection 25(1.1). In order to facilitate the testing of the Order, the Office agreed to hold its enforcement application in abeyance. In my view this was a logical way of proceeding.

5. However, the validity of the Order was not tested before the Tribunal. The Tribunal did not confirm, vary or revoke the Order and thus subsection 25(1.1) does not apply. Instead, the Employer and the Union agreed to a settlement the day before the first day of hearings. For a settlement to be binding under section 25.1, all parties to the matter must agree. We were given no indication that the Office consented to the settlement or even that they were informed of it. Thus, the settlement of the plan by the Employer and the Union does not have the impact contemplated by subsection 25.1 and is not binding on the Office.

6. The majority make reference to the case of Scarborough (27 May 1994) 0470‑94; 0497‑94 (P.E.H.T.) to support their finding that the Office was not a required party to the settlement. That case is distinguishable from the current one since no enforcement application by the Office had been filed prior to the parties reaching the settlement. The dispute was only between two parties. Here the Office had filed a referral application seeking enforcement which gave it party status.

7. In effect the Office, in attempting to facilitate a challenge to its Order by the Employer before the Tribunal, finds its status as a party eliminated without its knowledge. If it had been the Office's intent to abandon its application, it would have formally withdrawn it. Instead, the Office only agreed to abate their enforcement of the Order pending the outcome of the Employer's application, i.e. testing it before the Tribunal.

8. Given the public interest in facilitating settlement, how should the matter have proceeded? When a referral application for enforcement has been filed by the Office, it is in the interest of the employer and the Union to keep the Office informed of the negotiations and the settlement. Upon learning of the settlement the Office can either a) withdraw its application and/or not appear at the hearing or b) disagree with the settlement, appear at the hearing and reinstitute its enforcement application. If it elects to reinstitute, its application will take precedence over all other issues pursuant to ss. 24(5.2).

9. What should be done now? First the parties should provide to the Office the terms of their settlement and request that the Office withdraw its enforcement application. Assuming that the Office agrees, the settlement will be in conformity with section 25.1 and the current proceedings would be completed. Alternately the Tribunal could communicate to the Office that a significant development, the settlement of the plan by the parties, has occurred, and invite it to make submissions regarding the status of its application.

10. This procedure does not unduly complicate or lengthen the process, yet it protects the role of the Review Services Branch of the Office, preserves the integrity and intention of the amendment to the Act and precludes any challenge to the Tribunal's decision based on having removed the Office's status as a party in the matter.