Group of Employees v. Parry Sound District General Hospital, 1995 CanLII 7205

PAY EQUITY HEARINGS TRIBUNAL

0496‑94 Group of Employees, Applicants v. Parry Sound District General Hospital and Ontario Public service Employees Union (OPSEU) Local 320, Respondents

Before: Katherine Laird, Vice-Chair and Members Bruce Budd and Janet Slone-Taylor

Appearances: Senka Dukovich and Dollena Land for the Applicants; Peter Chauvin, Alex O'Brien and Peggy Hawthorn for the Respondent Hospital; Harriet Simand, Janet Wright and Neil Pollock for the Respondent Union.

Cite as: Parry Sound District General Hospital (May 29, 1995; 0496-94 (P.E.H.T.))

DECISION OF THE TRIBUNAL, MAY 29, 1995

INTRODUCTION

1. This proceeding was commenced by an application filed by a group of employees at the Parry Sound District General Hospital. The application challenges the pay equity plan of the Parry Sound District General Hospital on the basis that it is contrary to the Pay Equity Act, R.S.O. 1990, c. P.7 ("the Act"), and not appropriate for the applicants' job classes. The applicant employees (the "Employees" or"applicants") are Housekeeping Attendants and Junior Dietary Attendants. The Parry Sound District General Hospital (the "Hospital") and the Ontario Public Service Employees Union (OPSEU) are named as respondents to the application.

2. On December 7, 1994, the first day of hearing, the Hospital made a preliminary motion for dismissal of the application on the basis that:

(a) The Tribunal is without jurisdiction to hear the application;

(b) The applicants are without standing to make the application;

(c) The application is untimely.

3. OPSEU also raised a preliminary issue before the Tribunal. The union asked for a ruling that it was not properly named as a respondent to the application. The union advised that it was seeking intervenor status at the hearing.

DECISION ON PRELIMINARY ISSUES

4. The Tribunal has determined that: it has jurisdiction to hear the application of the Employees; the application is not untimely; the union is properly named as a respondent. With respect to the issue of standing, the Tribunal finds that the appropriate question to be determined as a preliminary matter is whether or not the Employees have established a prima facie case in support of the allegations in the application. The Tribunal will need to hear further submissions on this question. The applicants are directed to provide, within 30 days, further particulars with respect to the issue of inappropriate gender characterization of the two job classes and with respect to the allegation that the plan is not appropriate for their job classes. An amended response may be served and filed by OPSEU and by the Hospital within 45 days.

5. A summary of the facts not in dispute is set out below, followed by the reasons for our determinations on the preliminary issues in the following order: (1) Jurisdiction; (2) Timeliness; (3) Standing/Prima Facie Case; (4) Status of Union .

FACTS

6. A non-union pay equity plan was posted by the Hospital in January 1990. It compared the female Housekeeping Attendants and the Junior Dietary Attendants to a male Housekeeping Attendant job class. No objections were filed by the Employees to the posted plan. The application and both responses state that pay equity was achieved under the plan.

7. In 1991, OPSEU became certified as the bargaining agent for the Employees. A collective agreement was signed on February 13, 1992. OPSEU and the Hospital agreed that pay equity adjustments would be incorporated into the negotiated wages as required by the Act.

8. Under the collective agreement, the female and male Housekeeping Attendant job classes were combined to form one job class. Similarly, female and male Laundry Attendant job classes were merged to form one job class.

9. In February 1993, the Hospital unilaterally prepared a revised pay equity plan. The revisions reflected pay increases to Laundry Attendants which had apparently been introduced in October 1992, retroactive to January 1992. OPSEU was unaware of the pay increases until February 1993. Under the revised plan, Laundry Attendants and the Porter were considered female job classes and were compared to the male job class of Groundskeeper, resulting in a pay equity adjustment. The Housekeeping and Junior Dietary Attendants, although in the same classification group as the Laundry Attendants under the collective agreement, were not affected by the revised plan and did not receive a pay adjustment.

10. Some of the Employees filed grievances complaining that their job classes had not received the same increase as the Laundry Attendants. The grievances were not pursued or resolved.

11. The Employees and OPSEU separately contacted the Pay Equity Commission (the "Commission"). Although there is some dispute as to the manner in which the complaints were handled by the Commission, it is undisputed that OPSEU and the Hospital entered into a Memorandum of Settlement on September 8, 1993, which, among other things, gave the Housekeeping and Junior Dietary Attendants an increase effective in two stages, on January 1, 1994 and January 1, 1995.

12. The effect of the negotiated pay increase is that the Employees would receive the same rate of pay as the Laundry Attendants by January 1995, with no retroactivity.

13. The Employees were advised of the settlement agreement by the Review Officer at a meeting on September 29, 1993. The Officer reportedly told the Employees that they should consider the case closed and that nothing more could be done for them. He apparently also said that the negotiated pay increase to Housekeeping and Junior Dietary Attendants was not required by the Act.

14. Following the September 29, 1993 meeting, the Hospital posted a revised copy of the pay equity plan reflecting the terms of the settlement.

15. On April 4, 1994, the Employees filed an application with the Tribunal. Following a pre-hearing conference, an amended application was filed on October 27, 1994. The amended application challenges the Hospital's pay equity plan on the basis that the plan contravenes the Act, is not gender neutral, and fails to recognize the applicants' job classes as female-dominated. The Employees also allege that there are changed circumstances justifying re-consideration of the plan. The application requests the following relief:

*a declaration that the plan does not comply with the Act;

*a declaration that the applicants' job classes are female;

*an order amending the plan to compare the applicants' job classes to the Groundskeeper position;

*an order requiring the Hospital to pay retroactive pay increases with interest;

*an order requiring the Hospital to pay the costs and expenses of the applicants, including loss of pay.

16. In summary, the facts before the Tribunal involve: a deemed approved non-union plan; followed by certification of a union and a collective agreement; followed by an employer-instituted pay increase of which the union is unaware; followed by separate employee and union complaints to the Pay Equity Commission; followed by an employer-union settlement agreement; followed by an application to the Tribunal by a group of employees. The key issue in the application appears to be the alleged failure of the plan to appropriately characterize the applicants' job classes as female-dominated. As relief, the applicants seek an amendment to the plan, comparing their jobs classes, as female jobs, to the male job class of Groundskeeper, and corresponding retroactive pay equity adjustments.

REASONS FOR DECISION: PRELIMINARY ISSUES

ISSUE #1: JURISDICTION OF THE TRIBUNAL

Submissions of the Hospital

17. The Hospital submitted that the jurisdiction of the Tribunal to hold a hearing was limited by s.25(1) of the Act which provides:

The Hearings 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);

(b) if a request for a hearing, as described in subsection 23(4) or 24(6), is received by the Hearings Tribunal; or

(c) if a review officer refers a matter to the Hearings Tribunal under subsection 24(5).

18. It was argued that, in order for the Tribunal to have jurisdiction to hold a hearing, an application must come within one of paragraphs (a), (b) or (c) of s. 25(1). The present application has not been the subject of an order, or been referred to the Tribunal by a Review Officer. The Hospital argued that, accordingly, the application could only properly be within the jurisdiction of the Tribunal if it came within s. 25(1)(a) as a complaint which the Officer had been unable to settle.

19. The Hospital relied on the September 8, 1993 Memorandum of Settlement as settling the Employees' complaint and thus removing the jurisdiction of the Tribunal to hear the application. It was submitted that the Memorandum of Settlement prevented the Employees' from bringing their complaint to the Tribunal under s. 25(1)(a).

Submissions of the Employees

20. Counsel took the position that the Memorandum of Settlement entered into by OPSEU and the Hospital could not be considered a settlement of the Employees' complaint. The Employees did not sign the agreement and were opposed to the settlement.

Submissions of OPSEU

21. OPSEU did not specifically make submissions on the jurisdictional argument as framed by the Hospital, but counsel stated that the union did not support the employer's position that the Memorandum of Settlement had settled the Employees' complaint. Counsel clarified that the Memorandum of Settlement had settled the union's complaint to Review Services. The Tribunal was not advised as to the substance of OPSEU's settled complaint.

Analysis

22. Under s. 25(1) of the Act, the Tribunal is required to hold a hearing in respect of certain matters brought before it: unresolved complaints (s.25(1)(a)); challenged review officer orders (s.25(1)(b)); matters referred by a review officer (s. 25(1)(c)). Section 25(1) is a procedural mechanism by which matters can be brought before the Tribunal: Ontario Northland (Div.Ct.) (1994) 4 P.E.R. 19.

23. Where there is a complaint under Part IV of the Act, and, as in our case, no review officer order or referral triggering access to the Tribunal under s. 25(1)(b) or (c), an application can only be brought to the Tribunal under s. 25(1)(a) on the basis that the complaint has not been settled. There is no mechanism in the Act for Part IV complaints to come before the Tribunal if they have been settled by a review officer. The question for the Tribunal to determine is whether the Memorandum of Settlement signed by the Hospital and OPSEU, constitutes settlement of the Employees' complaint.

24. Although the settlement agreement addresses the issue of the disputed pay increase to the Laundry Attendants, which issue is integral to the Employees' complaint, the Employees themselves did not sign the agreement. It is clear from their application that the Employees do not consider the agreement to have addressed the issues which they have raised regarding the gender character of their job classes and the gender-neutrality of the pay equity plan. If the Employees themselves have not settled their complaint, can the union be found to have settled the complaint on their behalf?

25. Clearly, the question before the Tribunal involves competing policy considerations arising out of the legislation. On the one hand, the Act provides that pay equity will be established in the context of the collective bargaining regime in this province, based fundamentally on the role of the union as exclusive bargaining agent. A union negotiates pay equity on behalf of the employees, and once pay equity is established, has an on-going role with respect to its maintenance. An employer, with separate responsibility for negotiating and maintaining pay equity in unionized work places, must be able to rely on the authority of the bargaining agent as a negotiating partner, and on the finality of agreements. In our case, the Hospital submits that it should be able to rely on the settlement agreement with OPSEU as disposing of the complaint of the represented employees.

26. On the other hand, the Tribunal must consider the human rights aspect of the Pay Equity Act, and the simple fact that the intended beneficiaries of the legislation may not in every case be protected by employer-union negotiations. The legislation addresses this question in s. 22(1), by allowing employees to file a complaint with the Commission alleging a contravention of the Act or an order, and in s. 22(2), by allowing a complaint that a plan is not being implemented or is not (because of changed circumstances in the establishment) appropriate for a female job class. A complaint under s. 22(1) can challenge the plan itself as being in contravention of the statute: Ontario Northland (Div. Ct.)

27. When, as in our case, an employee in a unionized work place files a complaint with the Commission challenging a pay equity plan under s.22, the bargaining agent can of course negotiate with the employer in an attempt to settle the issue raised by the complaint. Nonetheless, regardless of any settlement as between the negotiating parties, the employee retains the ability to bring the complaint to the Tribunal under s. 25(1)(a). Unless an employee can access the Tribunal, employers and bargaining agents would in effect be free to contract out of the Act: Ontario Northland (Div. Ct.). However, the Tribunal may not in every case find it appropriate to hear an employee application on the merits: Hamilton Civic Hospitals (May 8, 1995; 0466-93; 0482-94; 0490-94; 0502-94; 0516-94; 0517-94; 0532-94; 0534-95 at paragraph 19); Peterborough (1991), 2 P.E.R. 86 at paragraph 14. The question of whether or not the Tribunal should, in this case, hear the application is dealt with in the next part of this decision.

28. In the usual case, if a review officer is unable to settle a complaint under s. 22, s/he will issue a notice of decision under s. 23(2). In our case, there was no s. 23(2) decision because the Officer took the position that the complaint had been settled. This does not, in our view, affect the Tribunal's jurisdiction to hear the complaint. Having found that OPSEU could not settle the Employees' complaint on their behalf, the application is properly before the Tribunal under s. 25(1)(a) as an unsettled complaint. No purpose would be served by sending the complaint back to the Commission for the issuing of a decision under s. 23(2).

ISSUE # 2: TIMELINESS

Submissions of the Hospital

29. Counsel submitted that the Act incorporated a number of time limits, and should be interpreted as placing importance on the timeliness of applications. Counsel referred the Tribunal to s. 15(4), (7) and (8) as establishing a timetable for objections and deemed approval in respect of a non-union plan. He relied on the fact that none of the applicants had filed objections in respect of their job classes in 1990, when the plan was posted.

30. As well, the Hospital submitted that, following certification of the union, the Employees could have filed objections within the 30 day period prescribed in s. 16(4), but failed to do so.

31. Finally, counsel relied on the fact that the Employees waited from September 29, 1993, when the Review Officer advised them of the Memorandum of Settlement, to April 7, 1994, to file their first application to the Tribunal. Counsel noted that the applicants are relying in this proceeding on the amended application, not filed until October 27, 1994.

Submissions of the Employees

32. Counsel argued that it would be unfair to dismiss the application for the delay to April 1994, given that the Employees were unrepresented and had relied on the Review Officer's statement that there was nothing else that could be done. Neither the Officer or the other parties had advised the Employees that they could make an application to the Tribunal.

33. Counsel did not address the submissions of the Hospital with respect to the time limits for filing objections to the non-union plan.

Submissions of OPSEU

34. Counsel submitted that the time limits governing objections to non-union plans were what should be argued by the parties. On this issue, OPSEU took no substantive position.

Analysis

35. Both the Hospital and OPSEU, in submissions on timeliness, urged the Tribunal to consider the time limits for objections to non-union plans. Given that this application arises out of a complaint filed some 2 years after certification, the argument is surprising unless there is a concern that the present application is being used to raise objections to the 1990 plan. Because there is some confusing language on this point in the application, we find it necessary to specify that we interpret the application as challenging the current pay equity plan, as amended in February 1993 and September 1993. The Employees state in their application that pay equity was achieved under the 1990 plan. No objections to the plan were filed by the Employees within the statutory 30 day period. This application cannot be used as a vehicle to revive a right to object that lapsed four years previously.

36. Turning to the question of the delay in challenging the current plan, we note that there is no statutory time period in the legislation for bringing a complaint under s. 22 before the Tribunal. We adopt the reasoning in Corporation of the City of Brampton (1994) 5 P.E.R. 103, in finding that the test to be applied to issues of timeliness is whether the delay is such that it would amount to an abuse of process for the application to be allowed to proceed. The Tribunal has the authority under s. 23(1) of the Statutory Powers Procedure Act (R.S.O. 1990, c. S. 22) to make such orders "as it considers proper to prevent abuse of its processes". In appropriate circumstances, the Tribunal can dismiss an application for delay. Such circumstances are not present in this case.

37. The delay at issue is the period of more than six months that passed between when the Employees learned of the settlement agreement terminating investigation of their complaint by Review Services, and the date when the initial application was filed. It was not argued that there was any specific prejudice caused by the delay. The other parties were aware of the issues which the Employees had taken to Review Services, and knew that the Employees were not satisfied with the settlement.

38. Applying the reasoning in Maclean's Magazine (No. 2) (1993) 4 P.E.R. 45, we note that the delay was not the result of a deliberate attempt to damage the position of the other party, or to harass or oppress them in any way.

39. The Hospital and OPSEU have not disputed that the Review Officer advised the Employees that they should consider the case closed, and that nothing more could be done. While we can make no findings as to what was actually said by the Officer, we note that all parties acknowledge that it is their understanding that the Officer indicated that no further steps could be taken by the Employees. The Employees have stated in their pleadings that they did not learn that they could file an application to the Tribunal until some time later when they contacted the office of the Ombudsman Ontario.

40. Under these circumstances, and considering that the Employees were unrepresented, it is not surprising that it was a considerable period of time before the application was filed. The delay, while unfortunate, is not, in the view of the Tribunal, grounds for dismissal of the application.

ISSUE #3: STANDING/PRIMA FACIE CASE

Submissions of the Hospital

41. The Hospital submitted that the Tribunal should refuse to hear the application because it is brought by a group of employees to overturn an agreement entered into by their bargaining agent. Counsel referred to the Memorandum of Settlement agreement with OPSEU in September 1993. It was argued that, in order to give certainty and structure to the pay equity negotiation process, the Act severely restricts the ability of a bargaining unit member to independently pursue rights under the legislation. The Hospital took the position that the Employees did not have standing to re-open a deemed approved plan to which their union had agreed.

42. Counsel made extensive submissions with respect to the majority decision of the Tribunal in Management Board Secretariat ((1993), 4 P.E.R. 58). This decision is currently under reconsideration by the Tribunal: Management Board Secretariat (No. 2) (1994) P.E.R. 10. The Hospital urged the Tribunal to follow the majority in requiring a bargaining unit member to meet a threshold test of reasonableness before proceeding to a hearing on the merits.

43. Counsel argued that the application should be dismissed on the basis that the Employees lacked standing and had failed to meet the threshold test in Management Board Secretariat. Counsel relied on the failure of the applicants to plead particulars and to lead evidence to demonstrate a basis for the allegations of gender-bias, changed circumstances and so on.

Submissions of the Employees

44. Counsel for the employees took the position that the employees had a clear right under s. 22 to challenge a deemed approved plan. She noted that the decision in Management Board Secretariat in fact recognized that unionized employees had standing to raise issues of statutory non-compliance in respect of their substantive rights. Given the uncertain status of the Management Board Secretariat decision, counsel argued that it should not be followed on the threshold issue. It was her submission that the applicants should only be required to have pleaded a prima facie case alleging breach of a substantive right.

45. In the alternative, if the panel decided to adopt a threshold test and require further particulars or supporting evidence, counsel submitted that the applicants should be given the opportunity to provide material as required.

46. Counsel relied on the Divisional Court decision in Ontario Northland. The Court upheld a Tribunal decision (reported in (1992) 3 P.E.R. at 166), allowing a union to re-open its own negotiated approved plan. Counsel argued that the case for allowing a non-party to re-open a plan for alleged non-compliance with the statute would be even stronger. Ontario Northland was cited as authority for an approach which places more importance on the achievement of statutory standards, than on the need for administrative certainty.

Submissions of OPSEU

47. OPSEU questioned whether the issue of standing had been properly framed by the parties. Counsel took the position that our facts involved a non-union plan and should not be viewed as similar to those in Management Board Secretariat which involved a union-negotiated plan.

Analysis

48. The Tribunal is being asked to dismiss the application on the basis that: the Employees do not have standing to bring the complaint to the Tribunal and the application does not meet a threshold test of reasonableness in respect of the allegations. The motion to dismiss is founded on a fundamental aspect of the legislation: employers and unions have the responsibility, in the first instance, of attempting to negotiate pay equity plans. Where negotiations are successful, the result is a plan with a "deemed approved" status. The question for the Tribunal in this case is to determine the circumstances in which the Tribunal can and should review a deemed approved plan.

49. Although not specifically pleaded, the foundation for the Employees' application is s. 22(1) and (2) of the Act. As discussed in paragraph 27 above, s. 22(1) gives employees, whether or not they are represented by a union, the right to file a complaint with the Commission alleging that there has been a contravention of the Act. Under s. 22(2), employees also have the right to file a complaint with the Commission alleging that a plan is not appropriate for their female job class because of changed circumstances in the establishment.

50. The procedural mechanisms by which Part IV complaints, including complaints under s. 22, can reach the Tribunal, are discussed in paragraphs 22 and 23 above. Where a review officer does not make an order or referral in respect of a s. 22 complaint to the Commission, and is unable to effect a settlement, the complaint can be brought to the Tribunal under s. 25(1)(a).

51. In our view, an employee is entitled to a hearing before the Tribunal in respect of a s. 22(1) complaint if the application establishes a prima facie case that there has been a contravention of the Act. When an application before the Tribunal challenges a deemed approved plan on the basis that it contravenes the Act, it is appropriate for the Tribunal to determine, on its own motion, if a prima facie case has been established, whether or not the issue is raised by respondent: Management Board Secretariat, minority decision, paragraph 25. The question of what constitutes a contravention of the Act will often not be easily answered.

52. Similarly, an employee will have the right to a hearing in respect of a complaint under s. 22(2)(b) if the pleadings establish a prima facie case that there are changed circumstances in the establishment making the plan not appropriate for the employee's female job class. The pleadings must establish a prima facie case in respect of each of the elements of a s. 22(2)(b) complaint.

53. The wording of s. 22(2)(b) makes it clear that an employee making a complaint under this section must establish inappropriateness in respect of their own job class. Similarly, an employee alleging a contravention of the Act, under s. 22(1), must be relying on a violation of their own substantive pay equity rights or status. An employee cannot ask the Tribunal to re-open a deemed approved plan on the basis of an alleged violation, such as a procedural irregularity in negotiations, which does not impact on their rights or treatment under the legislation.

54. This is the issue which was discussed as a question of standing in the majority decision in Management Board Secretariat. At paragraph 10, the Tribunal states:

To determine whether an entity named in this section [22] 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 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.

This issue is also addressed in the minority decision in the context of considering whether or not the applicants have a prima facie case. See paragraphs 9, 10, 19 and 25.

55. Applying this approach to the application before the Tribunal, we must consider if the Employees have established a prima facie case that:

*there has been a contravention of the Act affecting their substantive rights under the legislation?

*there are changed circumstances in the establishment rendering the plan inappropriate for a female job class to which the Employees belong?

56. A prima facie case will be established if the facts alleged in the application, when accepted as true, will support a finding that the Act has been contravened or that there are changed circumstances in the establishment rendering the plan inappropriate for the Employees' female job class. (See Peterborough (1991), 2 P.E.R. 86 at paragraph 6).

57. What, then, are the specific allegations in the application? What facts are pleaded in support of the allegations? Are the facts, as pleaded, capable of supporting a finding that the Act has been contravened or that there are changed circumstances within the meaning of s. 22(2)? Although we cannot determine whether a prima facie case has been established without further particulars and submissions, we think it will be useful for the panel to give some direction at this stage as to how we view the allegations and where we have questions.

58. To examine the allegations as pleaded, we must consider the section of the Employees' application entitled "Nature of the Issues" (paragraphs 1 to 10 on pages 5-6). The allegations can be summarized, in the language of the pleadings, as follows:

(i) the plan violates the Act because it is gender-biased;

(ii) the employer had to re-consider all job classes when it reconsidered the plan;

(iii) the actions of the employer in revising the plan for some employees, but not all, resulted in changed circumstances;

(iv) the employer-initiated amendment made the plan inconsistent, unreasonable and gender-biased;

(v) the employer violated the Act in not determining that the applicants were in a female job class;

(vi) the Minutes of Settlement are unreasonable and violate the Act in failing to redress gender bias in the plan.

59. First of all, we note that the allegations in the application focus on the February 1993 plan and are directed solely at the Hospital as the employer. Does this indicate that OPSEU is not considered to have agreed that the applicants' job classes would be considered gender neutral? The collective agreement merged the male and female Housekeeping Attendant job classes, presumably on the basis that a gender-neutral job class was created. (The Junior Dietary job class was unaffected by the collective agreement negotiations.) We note that OPSEU was not involved in negotiating the February 1993 revised plan that followed the collective agreement, but surely it can be assumed that OPSEU negotiated the current plan, posted after the September 1993 agreement. We do not have copies of the successive pay equity plans to assist us in understanding the factual circumstances from which the dispute arises. We do not know, on the basis of the submissions before us, whether or not the Hospital and OPSEU have agreed that the applicants' job classes are gender neutral.

60. OPSEU's submissions did not assist in clarifying the questions in this area. The union in effect asked the Tribunal to approach its determinations as if certification had not occurred. We note that OPSEU's position before us contrasts with that taken by OPSEU in Management Board Secretariat. In our case, the union has not opposed the Employees on the so-called standing question, and has argued that the threshold test is not relevant because it is a non-union plan. OPSEU, in its limited submissions to date, appears to disown the September 1993 agreement which is the basis for the Hospital's challenge of the Employee's standing before the Tribunal. Regardless of the merits of OPSEU's position in this respect, clearly the Tribunal does not have sufficient information before it.

61. Turning to the specifics of the issues set out above, we question, first of all, whether the applicants are entitled to a hearing with respect to the allegation (in paragraph 56 (iv) and (v) above) that the amended plan, and the settlement agreement incorporated into the plan, is inconsistent or unreasonable. The Act does not set a general standard of internal consistency and reasonableness which the Hospital was required to meet in maintaining the plan. In our view, what the legislation requires in s. 7(1) and (2) is that compensation practices are maintained which are consistent with pay equity. The allegation that the plan is internally inconsistent and unreasonable, if proven, would not in and of itself constitute a contravention of the Act.

62. Secondly, let us consider the alleged failure of the Hospital to consider all job classes when making adjustments (paragraph 56 (ii)). Even if the applicants could prove that the employer did not put its mind to all job classes when making adjustments for some, there is nothing in the Act which would require an employer to reconsider all job classes at the same time, provided that pay equity is maintained. In our view, this allegation, if proved, would not establish a contravention of the Act.

63. Turning to the allegation that the Hospital acted unilaterally (in paragraph 56(iv)), we note that, in February 1993, when the employer made the unilateral changes to the plan, the amendments to the Act (s. 14.1) establishing a process for the re-negotiation of plans (where there are changed circumstances in the establishment) were not yet enacted. Nevertheless, under s. 7, the Hospital and OPSEU shared responsibility for maintaining compensation practices consistent with pay equity. In unilaterally increasing compensation for some bargaining unit members, the employer acted in contravention of its responsibilities under the Labour Relations Act and contrary to the negotiation process established by the Pay Equity Act for unionized work places.

64. If an employer ignores a bargaining agent in awarding pay equity increases, it is not surprising if the employees also ignore the union in seeking further increases. However, applying the approach in Management Board Secretariat (see paragraph 54 above), the failure of the Hospital to have negotiated the 1992 increases with the union is not an issue which the Employees can bring to the Tribunal: they cannot establish a prima facie case that their substantive rights under the Act are affected by the alleged statutory violation. A failure by an employer to maintain pay equity, as required by s. 7, will affect the substantive rights of employees; a failure to negotiate with the union in respect of pay equity maintenance will not.

65. What are the remaining allegations pleaded in the application? Under s. 22(1), we have: the allegation that the current plan, as amended, is gender-biased (paragraph 56 (i) (iv) and (vi)), and the allegation that the employer erred in not considering the applicants' job classes to be female-dominated (paragraph 56 (v)). Under s. 22(2), we have: the allegation that the partial revisions to the plan constitute changed circumstances within the meaning of the section (paragraph 56(iii)).

66. Turning first of all to the s. 22(1) issues, it appears that the two allegations are one and the same: it is alleged that the plan is gender-biased because it does not consider the applicants' job classes to be female-dominated. Otherwise, the allegation that the plan is gender biased is unsupported in the pleadings and is not meaningful. The facts relied upon to establish the inappropriate gender characterization are set out in paragraphs 7 and 8 on page 6 of the Employees' application:

67. The Applicants state that the Employer violated the Act in determining that the Applicant Housekeeping Attendants were not a female jobs (sic) class under S.1(1) and S.1(5) of the Act. The Applicants state that the Employer failed to consider the gender stereotype in fields of work and statistical data relating to gender dominance in fields of work.

68. The Applicants state that their job duties and responsibilities are stereotypical female work, and that the gender dominance of those performing such work is female. In addition, the Applicants state that they were and are a female job class pursuant to s.1(1).

69. Would the facts relied upon by the Employees in paragraphs 7 and 8, if true, establish a contravention of the Act? If, in analysing the work requirements of the two job classes, it can be proven that gender stereotyping and historical incumbency would support a finding that the jobs are female-dominated, is this sufficient to establish a contravention of the Act?

70. Unfortunately, this will not be a simple question to answer. Pay equity issues are complex and there may be a range of options which could meet the standards in the legislation. On some issues, such as the gender characterization of jobs or the choice of appropriate comparators, there may be a range of reasonable possibilities. This is the basis for affording deference to plans which have been deemed approved: while other choices may be possible, negotiating parties or an employer in a non-unionized work place, are entitled to some finality once reasonable decisions have been made. Both the majority and minority decisions in Management Board Secretariat were based on a thoughtful consideration of this reality of the pay equity scheme.

71. The definitions of "female job class" and "male job class" in s. 1(1) of the Act are a useful starting point for considering if there is a prima facie case on the gender characterization issue. When taken together, the two definitions create a presumptive area, based on incumbency, in which a job class may be considered gender-neutral in the absence of a contrary decision (by an officer; the Tribunal; the employer; employer-union agreement). If the members of a job class are more than 30% male and less than 60% female, the job class can be considered gender-neutral. The Tribunal has not heard evidence on the current incumbency in the applicants' job classes, but the employer has stated in its pleadings that, as of May 1993, there were 9 females and 8 males in the Housekeeping Attendant job class.

72. To be clear, we are not suggesting that the current incumbency in any way settles the issue of the gender characterization of the job class. The Employees have argued that the Hospital, in assessing the gender dominance of the job classes, should have considered gender stereotypes and historical incumbency, as required under s. 1(5). We raise the percentage definitions only for consideration on the issue of whether there is a prima facie case of a statutory contravention. If the applicants are numerically in what can be considered a neutral job class under the statute, it suggests that characterizing these jobs as gender neutral may not readily be viewed as a contravention of the Act. On these facts, there may be more than one possible characterization of the gender-dominance of the applicants' job class, making it difficult for the applicants to establish a prima facie case that the Act has been contravened.

73. As we have said, the Tribunal cannot determine the question of whether the Employees have established a prima facie case without further submissions from the parties. In particular, we would like the parties to address the question of the appropriate level of deference which should be afforded to deemed approved plans in respect of potentially discretionary issues, such as, in some circumstances, the gender characterization of a job class, or the choice of a male comparator. When, if ever, should the Tribunal review those terms of a plan on which the negotiating parties have had a choice between more that one option conforming with the legislation? Can a prima facie case of statutory breach be made out in respect of discretionary terms of a plan? Is a prima facie case established on these facts? In any event, we direct the Employees to further particularize their application in respect of the issue of the inappropriate gender characterization of their job classes.

74. We are also concerned that the undisputed facts, as established by the pleadings, have not given us a sufficient factual basis for making the required determination. If there are additional facts which can be placed before the Tribunal by way of an agreed statement, prior to the re-convening of the hearing, that would of course be useful. We would expect to be provided with copies of the 1990, 1993 and current pay equity plans. In addition, the panel would like to hear from the parties on the status of the current plan: is it a negotiated plan or did the employer prepare it unilaterally? Has the settlement agreement been negotiated into the plan? Is the plan properly considered a deemed approved plan? Are there outstanding issues currently being negotiated in respect of the current plan?

75. The final allegation in the application to be addressed is the s. 22(2) issue: have the applicants established a prima facie case that the pay equity plan is not appropriate for their female job class. To make out a prima facie case under s. 22(2), the applicants must plead facts which, if proven, would establish each of the elements of the section, specifically that:

• there are changed circumstances in the establishment;

• the changed circumstances have resulted in the plan not being appropriate for a job class;

• the job class for which the plan is not appropriate is a female job class;

• the applicants belong to that female job class.

74. The "changed circumstances" relied upon by the employees, as set out on page 5 of the application, is the action of the employer in amending the plan for some, but not all, employees. The question of whether this would constitute "changed circumstances in the establishment" under s. 22(2) was not an issue which was argued at the hearing.

75. The Employees have not provided sufficient particulars in respect of any of the components of the s. 22(2) issue. We do know how the partial amendment is alleged to have resulted in the plan not being appropriate; we do not know the factual basis for considering the two job classes to be female. The facts pleaded are not sufficient to enable the Tribunal to determine if a prima facie case has been established.

76. The Employees may, within 30 days, provide further particulars in respect of their allegations under s. 22(2), failing which, the application on this issue will be dismissed. The respondents can file amended responses on this issue within 45 days. If further particulars are provided, the parties will have the opportunity to make oral submissions on whether the facts, if proven, would establish a prima facie case. The submissions should address:

• what constitutes "changed circumstances";

• what meaning do the words "in the establishment" have;

• how do the "changed circumstances" provisions in the legislation fit with the on-going maintenance responsibilities of the employer and union under s. 7?

ISSUE #4: STATUS OF THE UNION

Submissions of the Union

77. Counsel asked for an order removing OPSEU as a respondent to the application and giving it intervenor status in the proceedings. It was the position of the union that the issue in this application involved a unilateral employer-initiated change to a non-union pay equity plan, and that, as such, there could be no valid complaint against OPSEU.

Submissions of the Employees

78. The applicants took the position that OPSEU should not be removed as a respondent. Counsel stated that the union should remain a party and be bound by the Tribunal's rulings.

Submissions of the Hospital

79. Counsel for the Hospital opposed the OPSEU's request to be removed as a respondent.

Analysis

80. In our view, the issue of party status was confused in the submissions with the question of the potential liability of the bargaining agent. The test to be applied in determining whether a bargaining unit is properly a respondent is set out in s. 32(1) of the Act which provides that the parties to hearings before the Tribunal include the bargaining agent, "if the pay equity plan relates to a bargaining agent".

81. Although the plan at issue in this case was initially non-union, OPSEU subsequently became certified as bargaining agent for the Employees. OPSEU filed a complaint with respect to the plan and advised the Tribunal that it had been actively seeking to re-negotiate the plan. Clearly the plan at issue in these proceedings relates to OPSEU as bargaining agent for the applicants. OPSEU is properly named as a respondent and may, within 45 days, file an amended response setting out its position in more detail. The other parties may file a reply in accordance with the Rules of Practice of the Tribunal.

CONCLUSION

82. If, in light of this decision on preliminary issues, the parties believe that it would be useful to attend another pre-hearing conference, the Registrar can be contacted to schedule an appropriate time.