York Region Board of Education v. Canadian Union of Public Employees, Local 1734, 1995 CanLII 7202

PAY EQUITY HEARINGS TRIBUNAL

0395‑93 York Region Board of Education, Applicant v. Canadian Union of Public Employees, Local 1734, Respondent

0448‑93 Canadian Union of Public Employees, Local 1734, Applicant v. York Region Board of Education, Respondent

Appearances: Roy C. Filion, Laurel Johnson, Colette Nemni and Bruce Richardson for the York Region Board of Education; Cathy Lace, Liz Carlisle and Joe Poitras for Canadian Union of Public Employees, Local 1734

Before: Mary Anne McKellar, Vice‑Chair and Members Geri Sheedy and Charles Taccone

Cite As: York Region Board of Education (18 January 1995) 0395‑93; 0448‑93 (P.E.H.T.)

DECISION OF THE TRIBUNAL, JANUARY 18, 1995

THE APPLICATIONS

1. In Tribunal File 0395‑93, the York Region Board of Education (the Employer ") objects to a Review Officer's Order dated December 18, 1992 (the Order"), which found that the Employer had contravened the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (the Act") by failing to maintain pay equity with respect to certain female job classes in the bargaining unit represented by the Canadian Union of Public Employees, Local 1734 (CUPE 1734") and directed the Employer to pay the amounts necessary to regain pay equity" for those female job classes. The Employer seeks to have the Tribunal revoke the Order.

2. In Tribunal File No. 0448‑93, CUPE 1734 objects to that portion of the Order finding it to be complicit" with the Employer in the breach of the Act and ordering it to post a notice on union letterhead in the workplace setting out this finding and undertaking not to contravene the Act in the future. CUPE 1734 seeks to have the Tribunal revoke those portions of the Order finding it to have contravened the Act and ordering it to post the notice.

FACTUAL BACKGROUND

3. Pursuant to the Act, the Employer was required to post pay equity plans for five different employee groups by January 1, 1990. Those groups are: a bargaining unit of mainly clerical workers represented by CUPE 1734; a bargaining unit of mainly janitorial workers represented by the Canadian Union of Public Employees, Local 1196 (CUPE 1196"); a bargaining unit of secondary school teachers; a bargaining unit of elementary school teachers (the Teachers"); and the unrepresented management employee group. At the time the hearing into these files commenced, pay equity plans had been posted in respect of all but one of these employee groups, the Teachers.

4. The CUPE 1734 bargaining unit is comprised largely of female job classes. A pay equity plan in respect of this group was negotiated and posted as part and parcel of renewal collective agreement negotiationsin June 1989. The comparably valued male job classes to which the CUPE 1734 female job classes were compared under the plan came from three employee groups: the CUPE 1734 bargaining unit; the CUPE 1196 bargaining unit; and the non‑union employee group. All the adjustments required to achieve pay equity for the CUPE 1734 female job classes were paid in 1989.

5. Subsequent to the achievement of pay equity for the CUPE 1734 female job classes in 1989, disparities began to occur between the job rate for some of the female job classes and their male comparators in the CUPE 1196 bargaining unit and the the non‑union employee group.

6. The disparities between the CUPE 1734 female job classes and their male comparators in the CUPE 1196 bargaining unit developed in the following manner. Collective agreements for both CUPE 1196 and 1734 expired on December 31, 1988. In June 1989, CUPE 1734 agreed to a three‑year collective agreement, effective January 1, 1989 to December 31, 1991. This collective agreement incorporated pay equity adjustments in the first year, and provided for general wage increases in the second and third years. In the meantime, CUPE 1196 and the

Employer had agreed to a two‑year collective agreement, effective January 1, 1989 to December 31, 1990. During the currency of this CUPE 1196 collective agreement, pay equity was maintained vis‑a‑vis the CUPE 1734 female job classes and their male comparators in the CUPE 1196 bargaining unit. The CUPE 1196 renewal collective agreement, effective January 1, 1991 to December 31, 1992, provided for general wage increases of 6.5% on January 1, 1991; 4% on January 1, 1992; and 4% on July 1, 1992, resulting in a situation where the wages paid to their male comparators exceeded those being paid to the female job classes.

7. The disparities between the CUPE 1734 female job classes and their male comparators in the non‑union group developed in a similar fashion. Wage increases for the CUPE 1734 members, including incumbents of the female job classes who had received pay equity adjustments, were restricted to those previously negotiated in the collective agreement, and those increases were not always as large as ones subsequently granted to the male comparators in the non‑union group. The discrepancy was particularly pointed during 1992. In November, 1991, the non‑union group had been granted a 5% wage increase effective January 1, 1992. By contrast, the CUPE 1734 bargaining unit received a 2.5% wage increase effective the same date.

8. Once these disparities became apparent, CUPE 1734 initially sought to redress them by seeking in its 1992 renewal collective agreement negotiations to achieve the same general wage increases as had been concluded between the Employer and CUPE 1196. Since these increases exceeded those granted to the non‑union group, had CUPE 1734 been successful in achieving this goal, the gap between the wages paid to female job classes with male comparators in both the non‑union group as well as in the CUPE 1196 bargaining unit would have been bridged. Early on in CUPE 1734's collective agreement negotiations, the Employer made it clear, for reasons of changed economic circumstances, that it was not willing to settle for the same general wage increase concluded with CUPE 1196. The Employer also made it clear that it would not negotiate pay equity maintenance for it relied on s. 8(2) of the Act in claiming that pay equity maintenance was not required. CUPE 1734 filed a complaint with the Review Services Branch of the Pay Equity Commission, effectively removing the pay equity maintenance issue from the collective bargaining process.

9. Two issues arose with respect to these disparities. The first was whether they had to be redressed under the rubric of maintaining pay equity. The Employer's position was that they need not be redressed because they arose as a result of differences in bargaining strength between CUPE 1734 on the one hand and CUPE 1196 and the non‑union employee group on the other, part of which differences the Employer attributed to the different economic climate prevailing at the time wage increases for CUPE 1734 were negotiated. Consequently, according to the Employer, they came within the provisions of s. 8(2) of the Act and were permissible exceptions to the requirement to maintain pay equity. The Employer led evidence on this issue.

10. CUPE 1734 denied that it had less bargaining strength than CUPE 1196 or the non‑union group and led evidence in support of that position. CUPE 1734 also argued that the Tribunal did not need to assess the relative bargaining strength of CUPE 1734 and the other two employee groups because the Employer was precluded from relying on s. 8(2) of the Act because pay equity had not been achieved for the entire establishment.

11. The second issue arises with respect to the disparities only in the event it is determined that they must be redressed. That issue is: who redresses them? CUPE 1734 takes the position that it is the Employer alone. The Employer takes the position that CUPE was, as the Officer found, complicit" in any contravention that occurred, and is therefore jointly responsible for redressing the disparities.

THE ISSUES AND THE DECISIONS

(a) Can s. 8(2) be relied on?

12. CUPE 1734 argued that s. 8(2) contains a precondition to its applicability, namely that pay equity has been achieved in an establishment". According to CUPE 1734, the Employer had not achieved pay equity in its establishment because no pay equity plan had been posted for the Teachers, with the result that the Employer could not rely upon s. 8(2) of the Act to excuse it from the obligation to maintain pay equity. The Employer argued that there was no such precondition, relying essentially on two points: s. 8(2) does not say once pay equity has been achieved for all employees"; and the pay equity plan for the Teachers would be irrelevant to the CUPE 1734 pay equity plan because no male comparator for a CUPE 1734 female job class would be found among the Teachers.

13. We are of the view that CUPE 1734 is correct, and that the Employer cannot rely on s. 8(2) of the Act to excuse it from the obligation to maintain pay equity. Our reasons for this decision follow.

(b) Was CUPE 1734 complicit in the violation of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html)?

14. The Employer argued that if s. 8(2) cannot be relied on and pay equity must be maintained, then CUPE 1734 was jointly responsible for the failure to maintain and should consequently be jointly responsible for the redressing of that failure. CUPE 1734, on the other hand, argued that it had not contravened the Act.

15. We are of the view that CUPE 1734 did not contravene the Act, nor was it complicit" in the Employer's contravention of it. Our reasons for this decision follow.

REASONS

(a) Can s. 8(2) be relied on?

16. Our determination in this case is compelled by the cardinal rule of statutory interpretation: words in a statute must be given their plain and literal meaning. Both CUPE 1734 and the Employer relied on various legislative materials in support of their arguments with respect to the mischief" s.8(2) was intended to address. In the absence of some ambiguity in the language of s. 8(2) none of these materials are of any assistance in our interpretation of the section.

17. Employers to whom the Act applies are obliged both to establish and maintain pay equity pursuant to s. 7(1):

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

18. In some circumstances an employer is excused from doing what would normally be required under the Act to establish and maintain pay equity. Section 8(2) limits an employer's obligation to maintain pay equity:

After pay equity has been achieved in an establishment, this Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of differences in bargaining strength.

19. In s. 1(1), the Act defines establishment" as follows:

“establishment" means all of the employees of an employer employed in a geographic division or in such geographic divisions as are agreed upon under section 14 or decided upon under section 15;

A regional municipality is a geographic division" under the Act. Consequently, this Employer has a single establishment comprising all of its employees in the Regional Municipality of York.

20. Reading this definition of establishment" into s. 8(2), it becomes clear that the s. 8(2) exception to maintaining pay equity cannot be relied upon until after pay equity has been achieved for all of the Employer's employees.

21. The Act requires that this Employer implement pay equity through the means of posted pay equity plans for its employee groups. It is impossible for the Employer to demonstrate or for the Tribunal to conclude that pay equity has been achieved for the Teachers where no pay equity plan has been posted for them. Thus, the precondition to the application of s. 8(2) cannot be satisfied, and the section cannot be relied upon to excuse the Employer from maintaining pay equity for the female job classes represented by CUPE 1734.

22. The Employer argued that the above interpretation of s.8(2) makes no sense because there will be no relationship between the CUPE 1734 pay equity plan and the pay equity plan for the Teachers. No male comparators for CUPE 1734 will be found among the Teachers, who comprise female job classes only. Nor will male comparators for the Teachers be found among the CUPE 1734 group. We would like to respond briefly to this argument.

23. The first and most obvious response is that the Tribunal is in the business of adjudicating, not legislating.

24. Secondly, while it may well be that there can be no possible connection in terms of comparisons between the CUPE 1734 pay equity plan and any pay equity plan concluded for the Teachers, that may not always be the case in an establishment such as this one where multiple pay equity plans must be concluded. Although the Tribunal has to resolve these matters on the basis of the facts before us, we cannot allow the specific circumstances of this case to influence our decision with respect to the appropriate interpretation of an unambiguous statutory provision of general application. Even had we found there to be some ambiguity in the language of s.8(2), we would have been compelled to construe that language strictly because the provision constitutes an exception to the Act's general requirement that pay equity be maintained.

25. Thirdly, we note that our interpretation of s.8(2) is consistent with other sections of the Act, most notably s. 5.1(1), which became effective July 1, 1993 and reads:

For the purposes of this Act, pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job‑to‑job method of comparison, the proportional value method of comparison or, in the case of an employer to whom Part III.2 applies, the proxy method of comparison, and any adjustment to the job rate of each female job class that is indicated by the comparison has been made.

26. And, last but not least, it is our view that s. 8(2) does make sense in the scheme of the Act even absent the existence of any comparators" in common between the CUPE 1734 plan and the Teachers plan. At bottom, what this Act is all about is the equitable allocation of the dollars available for employee compensation. There are not infinite dollars available for that purpose. In recognition of that fact, the Act allows pay equity adjustments to be implemented over time, and the maximum amount of money any employer can be statutorily compelled to commit to funding annual adjustments under a pay equity plan is 1% of payroll. With respect to the allocation of that 1% where adjustments are being phased in, s. 13(3) of the Act clearly requires that the lowest paid female classes for whom an adjustment is required are to get more dollars than higher paid female job classes for whom an adjustment is also required. What we see operating in this section is the principle that the neediest get their money first. Consistent with this principle, it seems to us, is a provision like s. 8(2) of the Act, which says that before any of the finite dollars available for employee compensation are spent to fund increases for employee groups who demonstrate bargaining strength, it has to be spent on achieving pay equity.

(b) Was CUPE 1734 complicit in the violation of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html)?

27. Section 7(1) of the Act, reproduced above, imposes on employers the obligation to establish and maintain pay equity. Section 7(2) of the Act provides:

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

Did CUPE 1734 bargain for or agree to compensation practices contrary to this subsection?

28. The establishment of pay equity is not in issue in this case: we are concerned solely with its maintenance. The Act clearly requires that pay equity, once established, must be maintained. Under s. 7(1) of the Act, employers bear primary responsibility for both the establishing and the maintaining of pay equity. Keeping in mind the language of s. 7(1) and the fact that this is pro‑active legislation, it appears to us that the statutory presumption is that pay equity will be maintained automatically. In other words, an employee or bargaining agent does not need to complain or demand to negotiate in order to trigger the employer's obligation to maintain pay equity. This makes a great deal of sense given the potential information asymmetries as between the employer and the employees or bargaining agent. Where a non‑union female job class finds a non‑union male comparator job class, or where a female job class in a bargaining unit finds a male comparator outside of the bargaining unit, the employees in those female job classes or their bargaining agent will not necessarily know what wage increases the male comparators have received in order to assess whether pay equity is being maintained.

29. So, what are the bargaining agent's obligations? Section 7(2) operates to prohibit a bargaining agent from acting so as to condone an employer's failure to maintain pay equity. This could occur where the bargaining agent negotiated an agreement that clearly does not provide for maintenance and then failed to take other steps to redress that problem. For a thorough discussion of this issue see Welland County General Hospital (23 February 1994) 0340‑92 (P.E.H.T.).

30. The evidence here falls far short of establishing that CUPE 1734 ever acted so as to condone the Employer's failure to maintain pay equity. When the maintenance issue manifested itself, CUPE 1734 raised it with the Employer, tabled a collective bargaining proposal that would have redressed the problem, and when that proposal met with a negative response, pursued the matter before the Pay Equity Commission. We do not find that CUPE 1734 contravened the Act, nor was it complicit in the Employer's contravention. Accordingly, we need not address the issue of whether CUPE 1734 could or should be ordered to contribute financially to the redressing of the failure to maintain. We note only that this issue was also discussed in the Welland County General Hospital decision referred to above.

REMEDY

31. The Employer's application is dismissed. The Review Officer's Order is confirmed, with the exception of that portion of the Order requiring CUPE 1734 to post the notice.