PAY EQUITY HEARINGS TRIBUNAL
0510-94 TRW Canada Limited, Transportation Electronics Division, Applicant and Canadian Auto Workers, Respondent
0503-94 National Automobile, Aerospace and Agricultural Implement Workers of Canada (CAW-Canada) and Local 397, Applicants and TRW Canada Limited, and TRW Canada Limited, Transportation Electronics Division, Respondents
Before: Katherine Laird, Vice Chair and Members Charles Taccone and Bruce Budd
Appearances: M. Failes, M. Layton, G. Male and G. Gallant for TRW Canada Limited, Transportation Electronics Division and TRW Canada Limited; Catherine Gilbert, Sandra Ross, Dan Webster, Linda Squires and Donna Anderson for CAW-Canada and Local 397
Cite as: TRW Canada Limited (May 12, 1995) 0510-94; 0503-94 (P.E.H.T.)
DECISION OF THE TRIBUNAL, MAY 12, 1995
INTRODUCTION
1There are two applications before the Tribunal in this proceeding. At the Pre-hearing Conference, the parties identified the key questions to be decided by the Tribunal as the following:
(i) Is the Material Handler job class male-dominated?
(ii) Are the comparisons ordered by the Review Officer appropriate?
(iii) Who is the employer of the employees represented by CAW‑ Canada and Local 397?
It was further agreed between the parties that TRW Canada Limited and/or TRW Canada Limited, Transportation Electronics Division, would argue first on all issues.
2On January 30, 1995, the first day of hearing, the union asked the Tribunal to make preliminary rulings on two issues. The first was whether or not the Tribunal had jurisdiction to inquire into the gender dominance of the Material Handler job class. The second was whether or not the Tribunal had jurisdiction to hear the evidence which the employer intended to introduce with respect to the Gender Neutral Comparison System ("GNCS") developed by CAW-Canada. This decision deals with these preliminary issues.
3For ease of reference, in discussing issues other than the question of who the employer is, both TRW Canada Limited and TRW Canada Limited, Transportation Electronics Division will be referred to as "TRW" or as "the employer". The National Automobile, Aerospace and Agricultural Implement Workers of Canada (CAW-Canada), and Local 397, will be referred to simply as "CAW" or "the union".
4Summarized below is the evidence on the preliminary issues, given by Donna Anderson, an employee of TRW and an elected union representative on the Pay Equity Committee.
FACTS
5CAW and TRW began pay equity negotiations in October 1990, and agreed at the outset to use a GNCS prepared by CAW. The gender dominance of job classes was discussed at the first meeting.
6Ms. Anderson's evidence was that it was agreed that the Material Handler job class should be considered a "male job" on the basis of historical incumbency and gender stereotyping. She testified that there was a potential issue with respect to the gender dominance of the job class because a majority of those in the job since the 1980's had been women. She testified that TRW representatives expressed no reservations about the agreement on this point and never raised the gender dominance of the Material Handler job as an issue in any subsequent discussions.
7Pay equity negotiations occurred in March and April 1991. Although the parties agreed on a number of items, including the GNCS, the gender dominance of job classes, the points for each job class and the weighting, they were unable to agree on comparability. A Review Officer was brought in for assistance with job comparisons, but the parties agreed, at the suggestion of the Officer, to start over using the GNCS developed by the Pay Equity Commission ("PEC").
8At the first meeting of the union and the employer following the agreement to use the PEC GNCS, a number of items were discussed. The question of the gender dominance of the Utility and Material Handler job classes was raised by a union representative and it was again agreed by TRW that both job classes should be considered male. The employer did not state that the agreement on this point was conditional.
9This second round of pay equity negotiations between CAW and TRW produced agreement on a number of issues, but discussions broke down over the assessment of points for each job class, with the result that a Review Officer was again brought in. The evidence of Ms. Anderson was that the Officer was asked for assistance with job evaluations.
10Both the union and the employer made final written submissions to the Review Officer which were not shared with their negotiating partner. The CAW submissions dealt only with job evaluation; the submissions of TRW dealt also with the gender dominance of the Material Handler job. The union did not learn that TRW had raised the gender dominance of the Material Handler job class as an issue until July 1994, when the present applications were filed with the Tribunal.
11A Review Officer Order was issued, dated March 9, 1994. The Review Officer noted in the Order that the parties had agreed on a number of issues including the gender dominance of the thirteen job classes, and the use of the GNCS of the PEC. The Officer ordered the parties to prepare a plan based on the following comparisons:
Female Job Class Male Comparator
General Assembly Utility
Solderer "
Trouble Shooter Material Handler
Machine Operator " "
12Following receipt of the Order, the parties met to discuss preparation of the pay equity plan. The question of the identity of the employer was raised by TRW. TRW took the position that the appropriate employer for pay equity purposes was the operating group, the Transportation Electronics Division. The union's position was that the Order had correctly named TRW Canada Limited as the employer.
13A Review Officer was asked to resolve the "employer" issue for the parties. On June 6, 1994, a Notice of Decision was issued advising the parties that, pursuant to s. 23(2) of the Pay Equity Act, (the "Act"), a settlement could not be effected, and an order would not be made. In the "DISCUSSION" section of the Notice of Decision, the Officer states, with reference to the process leading to the Order of March 9, 1994: "The only issues raised by the parties were the comparison system and the subsequent evaluation results which would identify the male comparators."
14On or about June 6, 1994, a pay equity plan was posted in compliance with the Review Officer Order of March 9, 1994.
15On June 28, 1994, the employer filed an application with the Tribunal asking that the Order of March 9, 1994, be set aside, and objecting to the ordered job comparisons incorporated into the pay equity plan and the gender characterization of the Material Handler job class. TRW asked that the matter be remitted to the parties to complete pay equity evaluations.
16On July 28, 1994, the union filed an application with the Tribunal seeking, among other things, an order finding that the employer for pay equity purposes is TRW Canada Limited.
SUBMISSIONS OF THE UNION
17CAW counsel argued that the issues properly before the Tribunal were limited to those which the parties had taken to Review Services. Counsel relied on the evidence of Ms. Anderson that the gender dominance of the Material Handler job class and the comparison system were not disputed issues on which the assistance of the Review Officer was sought.
18Further, it was the position of the union that the Tribunal's jurisdiction under s. 17(1) is limited, by the wording of s. 16(2), (3) and (4), to the issues decided by a review officer order. Under s. 16(1)(a), if the Commission is advised by an employer or union that no agreement has been reached on a pay equity plan, a review officer is assigned to investigate and to try to effect a settlement. Sections 16(2), (3), (4) then provide:
16(2) If the review officer is unable to effect a settlement as provided for in subsection (1), he or she shall by order decide all outstanding matters.
16(3) Where a review officer effects a settlement under subsection (1) or makes an order under subsection (2), the employer shall forthwith post in the workplace a copy of the pay equity plan that reflects the settlement or order.
16(4) Where a pay equity plan has been posted under subsection (3), objections with respect to the plan may be filed with the Commission within thirty days of the posting as follows:
- If the plan relates to a bargaining unit, objections may be filed only if the review officer has made an order under subsection (1) and only the employer or the bargaining agent for the bargaining unit may file objections.
[ Paragraphs 2 and 3 apply where the plan does not relate to a bargaining unit.]
19Section 17(1) sets out the role of the Tribunal where an objection is filed with the Commission:
17(1) If the Commission receives a notice of objection under subsection 16(4), the Hearings Tribunal shall hold a hearing and, in its decision, shall settle the pay equity plan to which the objection relates.
20The union argued that the only issues which could be taken before the Tribunal were those "outstanding matters" which were decided by a review officer order under s. 16(2) and therefore subject to possible objection under s. 16(4). Counsel relied on the fact that, without an order, there is no right to object under s. 16(4), and no mechanism for asking the Tribunal to settle the plan under s. 17(1). The union took the position that the jurisdiction of the Tribunal under s. 17(1) matches and cannot exceed the scope of the decided issues in the review officer order.
21With reference to the Order of March 9, 1994, the union submitted that although the gender dominance of job classes and the GNCS were discussed in the Order, the only determinations were in respect of appropriate job comparisons, with the result that these are the only terms in the posted plan that were subject to possible objection and to review by the Tribunal.
22Finally, with respect to the employer's intention to introduce evidence on the use of the CAW GNCS, the union made the additional submission that the results of a pay equity comparison under a different system were irrelevant to the applications before the Tribunal.
SUBMISSIONS OF THE EMPLOYER
23Counsel submitted that the issues properly before the Tribunal in any proceeding are: the issues which the parties took to Review Services and the issues dealt with in the Review Officer Order. Putting this standard in different words, counsel argued that parties were restricted before the Tribunal to the issues which were before the Review Officer.
24On the question of the gender dominance of the Material Handler job class, counsel relied on the fact that TRW raised the issue in its final submissions to the Review Officer. The Tribunal had jurisdiction to decide this issue because it was put before the Review Officer by the employer's submissions. Counsel questioned why the Review Officer did not advise the union of this fact. Although it was acknowledged that the union did not have the opportunity to make submissions to the Officer on the issue, the hearing de novo before the Tribunal was said to afford the union this opportunity now.
25TRW also relied on the fact that the Order discusses the gender dominance of the job classes. Counsel submitted that, in fact, the Officer made a finding that the Material Handler job class was male-dominated.
26On the question of the relevance of evidence with respect to the use of the CAW GNCS, the employer submitted that the results of the pay equity comparisons under this system were relevant in two ways:
the results demonstrate that the union did not do a genuine evaluation under the PEC GNCS;
the results demonstrate that the employer's application of the PEC system is valid.
27TRW acknowledged that it was not their position that the CAW comparison system should be used by the Tribunal in settling the plan, but merely that evidence on the results under that system was relevant in assessing the legitimacy of the job evaluations.
ANALYSIS
Gender Dominance of Material Handler Job Class
28In the union's submission, the gender dominance of the Material Handler job class is a question outside the jurisdiction of the Tribunal on two counts: it was not one of the disputed issues taken forward to Review Services when the parties sought the assistance of an Officer and it was not a matter decided by the Review Officer Order.
29The Tribunal prefers the approach applied in the Scarborough (No.1)(1994), 5 P.E.R. 45 decision. In paragraphs 16 and 17 of that decision, the outermost limits of the issues that can be pleaded before the Tribunal are defined to include matters taken by the parties to Review Services, matters raised by the Officer at Review Services and matters decided or referred to the Tribunal by the Review Officer. The test was summarized as follows: "In other words, we can deal with anything that was dealt with by the Review Officer".
30Under this formulation, the parties are not necessarily limited before the Tribunal to the initial issues taken to Review Services; additional matters raised by the Officer or the parties at Review Services may also be brought before the Tribunal. Moreover, under the Scarborough test, issues which the parties took to Review Services, but which were, for whatever reason, not dealt with in the Order, can be considered.
31Once an order is made under s. 16(2), objections can be filed in respect of any term in the resulting plan which was at issue at Review Services, whether or not it was dealt with in the order. Further, when an application is filed with the Tribunal in respect of a notice of objection, the Tribunal can settle or decide any term of the plan which was at issue at Review Services, provided that it is pleaded and particularized in accordance with the Tribunal's Rules of Practice: York Region Board of Education (1994) 5 P.E.R. 83, paragraphs 12 and 16.
32However, what cannot be raised before the Tribunal in an application under s. 17(1), are matters about which the parties had an agreement before the Review Officer was brought in under s. 16(1)(a). The parties will also be bound by agreements entered into during the Review Services process. The question of whether or not the parties have in fact negotiated a binding agreement at any stage will depend on the particular facts of the case. See Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50; and Pembroke (1991), 2 P.E.R. 157.
33It remains to apply this approach to the question of whether the gender dominance of the Material Handler job class is an issue properly within the scope of this hearing. Was this an issue on which there was a binding agreement between the parties before the assistance of a Review Officer was sought? Was the issue raised by one of the parties, or the Officer, at Review Services? Was the gender dominance of the job class an issue on which an agreement was achieved during the Review Services process? Was this an issue decided by the Review Officer's Order of March 9, 1994?
34The evidence before the Tribunal establishes that there was agreement on the gender dominance of all job classes when the Review Officer was first brought into the process. The Review Officer was asked for assistance with job comparisons. However, during the first round of discussions with the Review Officer, several areas of agreement were reconsidered, including the comparison system to be used, the points to be assessed for each job class, and the weighting of factors. In our view, it would have been open to the employer at this stage to put into issue before the Review Officer the question of the gender dominance of the Material Handler job class. TRW did not do so. Although the gender dominance of the Material Handler job class was raised by the union in a meeting after the involvement of the Review Officer, the employer confirmed the previous agreement on this issue up to the point of the final written submissions to the Review Officer. In fact, the Order of March 9, 1994, makes no reference to this as an issue in dispute at Review Services and states that the parties had agreed on the gender characterization of all job classes.
35We find that, on these facts, the employer must be held to its agreement on the gender dominance of the Material Handler job class. At no point in the pay equity negotiating process, either before or after bringing in the Review Officer, did the employer give any indication to the union that the issue of the gender dominance of the Material Handler job class was not resolved. This was not a case in which agreement was expressly made on a without prejudice basis: Northumberland and Newcastle Board of Education (on the issue of appropriate comparators).
36Moreover, we note that, given the current gender composition in the job class, and the percentage of female incumbents in the last several years, the employer would not have agreed to consider the job class to be male-dominated without having turned its attention to gender stereotyping in this field of work. The evidence indicated that historical incumbency and, particularly, gender-based fields of work were deemed to be the determining factors in determining gender dominance in this case, and rightly so. The requirements of the Material Handler job, as set out in TRW's Application, indicate that the work performed is stereotypically male in nature.
37It is critical to the pay equity negotiation process that parties be able to determine if and when negotiations are completed and final on any particular issue. In this case, the union had no knowledge that the issue of the gender dominance of the Material Handler job class was not settled. It is incumbent on a party to advise its negotiating partner if an agreement on any item is conditional: Pembroke. Where there has been continuous agreement on any item in the development of a negotiated plan, a party cannot put that matter into issue at Review Services, and subsequently before the Tribunal, simply by including it in a final written submission to the Review Officer.
Use of the CAW Comparison System
38In our view, the issue with respect to the CAW comparison system is evidentiary in nature, not jurisdictional. The parties agreed on the use of the PEC system; this agreement is reflected and adopted in the Review Officer Order. It is not the intention of the employer to raise objections to the use of the PEC system in settling the pay equity plan before the Tribunal. Instead, the employer apparently wants to introduce evidence about the results of pay equity comparisons under the CAW system in order to raise questions about the legitimacy of the union's approach to subsequent pay equity comparisons under the agreed system.
39In the view of the Tribunal, it is premature to rule on the admissibility and relevance of this evidence at this early stage in the proceeding. See the oral ruling of the Tribunal in York Region Board of Education (1994) 5 P.E.R. 83 at 84. Moreover, this panel is not seized with hearing the applications on their merits, and would hesitate, on the basis of what we have heard to date, to make evidentiary rulings which would bind a subsequent panel.
DECISION
40The gender dominance of the Material Handler job class is not an issue which is properly before the Tribunal in this proceeding.
41The Tribunal declines to rule at this time on the admissibility and relevance of the evidence which the employer seeks to introduce on the use of the CAW comparison system.