Canadian Union of Public Employees, Local 883 v. Salvation Army Grace General Hospital, 1995 CanLII 7211

Pay Equity Hearings Tribunal

0480-94 & 0530-94 Canadian Union of Public Employees, Local 883, Applicant v. Salvation Army Grace General Hospital, Respondent

Before: Heather MacNaughton, Vice-Chair and Members Margaret Kvetan and Bruce Budd

Appearances: Nancy Rosenberg, Counsel, Mert Macdonald, Scott McLaughlin, Carol Gelowsky, Maureen Thomas, Deb Wielinga and Hazeline Wilson for the Applicant; Carole Piette, Counsel, Dave Evans, Brian Allen and Ruth Ruddy for the Respondent.

Cite as: Salvation Army Grace General Hospital (20 July 1995) 0480-94, 0530-94 (P.E.H.T.)

DECISION OF THE TRIBUNAL JULY 20, 1995

THE APPLICATION:

1. The Applicant, C.U.P.E. Local 883, (the "Union") makes application for an order that the Salvation Army Grace General Hospital (the "Employer") conclude a pay equity plan in accordance with the Order of the Review Services Officer and seeks enforcement of the Memorandum of Agreement executed by the parties.

THE FACTS:

2. The parties filed an Agreed Statement of Facts with attached agreed documents from which we find the following facts. The Union and the Employer began negotiations for a Pay Equity Plan in July of 1988. They agreed on the establishment to which the plan would apply, they identified all the job classes which would form the basis of comparison, they agreed to a gender neutral comparison system, and they evaluated the job classes. The parties could not reach agreement on the method of banding which would be used to determine appropriate male comparators.

3. In October of 1990 the Union sought assistance from Review Services to resolve this and other matters which are not relevant to these applications. On October 18, 1993 the Review Officer issued an Order in which a band of five points above and below the point value of the female job class was ordered, a total of eleven points. On December 22, 1993 the Union applied to this Tribunal (File number 0480-94) requesting an order that the Employer comply with the Review Officer's Order.

4. The Employer did not dispute the banding ordered in the Review Officer’s Order. The Parties agreed to negotiate to conclude a Pay Equity Plan based on that Order. Thereafter, the Parties executed a Memorandum of Agreement on March 31, 1994. In it the Parties agreed to the female job classes and the appropriate male comparators as of January 1, 1990 based on the eleven point spread. The scheduled hearing before the Tribunal was, as a result, adjourned sine die.

5. In the Memorandum of Agreement, the Parties acknowledged that there were certain listed outstanding matters which had arisen since January 1, 1990 relating to the achievement or maintenance of pay equity. These included:

a) Creation of Nursing Clerk position in April 1992

b) Creation of Inventory Control Analyst position in April 1993

c) Deletion of Stores Clerk II position in 1991

d) Change in duties of Stores Clerk I in December 1991

e) Upgrade of Cardiopulmonary Clerk II to Clerk III

f) Upgrade of Clerk I's in X-Ray to Clerk II's

6. On July 5, 1994 the Employer provided the Union with a proposal to settle all outstanding pay equity issues. This proposal utilized different male comparators than those agreed in the Memorandum of Agreement to be effective on January 1, 1990. The male comparators being proposed by the Employer were male dominated positions that had been created or modified after January 1, 1990.

7. The Union requested that the Tribunal reschedule the adjourned hearing and filed a new application (File number 0530-94) asking the Tribunal to enforce the agreement of the Parties pursuant to section 25.1 of the Pay Equity Act R.S.O. 1990 c.P.7 (the "Act").

DISCUSSION:

8. The Union argues that the Parties must conclude a Pay Equity Plan effective January 1, 1990, before the issue of the new comparators, or changed circumstances, which came into effect after that date, can be looked at. They argue that, if an employer were able to delay conclusion of a Pay Equity Plan each time a change in the workplace occurred, such as a possible new male comparator, pay equity could be stalled indefinitely.

9. The Union further argued that for an employer to make application to the Tribunal based on changed circumstances under s. 14.1 of the Act, there must be in existence a concluded Pay Equity Plan.

10. The Employer argues that it is not the Applicant before us. They do not argue that a pay equity plan is no longer appropriate because of changed circumstances. Rather, the Employer argues that in executing the Memorandum of Agreement, the Parties contemplated that there were outstanding issues left to be resolved before Pay Equity could be achieved. Those outstanding issues included changes to the workplace which had occurred after January 1, 1990. The Employer, therefore, argues that it is open to them to deal with the changes which occurred, specifically the existence of more appropriate male comparators. The Employer says that these new male comparators have to be addressed prior to the conclusion of the Pay Equity Plan to meet the primary intent of the Act which, it submits, is to achieve pay equity by comparing female job classes to the most appropriate male comparator.

11. The Employer argues that its proposal to resolve all issues delivered in July of 1994 incorporated changes in the workplace, a factor contemplated by paragraph 6 of the Memorandum of Agreement.

FINDING:

12. The Act requires these Parties to post a Pay Equity Plan by January 1, 1990. Had the Parties been able to conclude a plan by that date, the issue currently before us would not have arisen. The Act, of necessity, requires the Parties to take a snapshot of the workplace not later than January 1, 1990. A workplace is a dynamic, changing environment. Without selecting a specific implementation date, the negotiation between the Parties for pay equity would be difficult, if not impossible to conclude. Therefore, all jobs are evaluated as of not later than January 1, 1990, adjusted rates are calculated retroactive to that date and a schedule of payments to achieve pay equity is prepared. Thereafter, if changes occur in the workplace, those changes can be addressed through the maintenance obligation and either Party can notify the other that it wishes to modify the plan.

13. We are not persuaded by the Employer’s argument that more appropriate male comparators came into existence after January 1, 1990, and that these should be incorporated into the plan. The Employer and the Union had an obligation to post a Pay Equity Plan by January 1, 1990. They were unable to meet that date without the assistance of Review Services. They thereafter reached an agreement as to how to implement the Review Officer’s Order. The Employer now wishes to take advantage of a change occurring after January 1,1990 to vary that agreement.

14. We do not agree that they are permitted to do so either pursuant to the Act or pursuant to the terms of the Memorandum of Agreement they executed. The Employer was aware of the changes in the workplace, on which they now seek to rely, prior to executing the Memorandum of Agreement. Yet they were still prepared to sign it, using male comparators effective January 1, 1990.

ORDER:

15. We, therefore, order that the Employer and the Union conclude a Pay Equity Plan in accordance with the Review Officer's Order and the Memorandum of Agreement utilizing male comparators that were in existence as of January 1, 1990. In so ordering, we note that once the plan is concluded it remains open to the Employer to give notice to the Union regarding the changed circumstances in the workplace requiring negotiations for a modified pay equity plan.