Group of Employees v. Ontario Public Service Employees Union, 1995 CanLII 7265

PAY EQUITY HEARINGS TRIBUNAL

0348‑92 Group of Employees, Applicant v. Ontario Public Service Employees Union, Respondent and Crown in Rights of Ontario (Management Board of Secretariat), Respondent

Before: Phyllis Gordon, Chair and Members Geri Sheedy and Margaret Kvetan

Appearances: Leslie Dizgun and Susan Dunbar for Group of Employees Elizabeth Shilton and Janet Wright for Ontario Public Service Employees Union David Costen and Marie O'Donell for Crown in Right of Ontario (Management Board Secretariat)

Cite as: Management Board Secretariat (No. 3), (24 May 1995) 0348‑92 (P.E.H.T.)

DECISION OF THE TRIBUNAL, MAY 24, 1995

1. This is the reconsideration hearing of Management Board Secretariat, (1993) 4 P.E.R. 58, which was ordered in Management Board Secretariat, (No.2), (1994), 5 P.E.R.10. The Applicants are a group of unionized employees (the "Employees") and the Respondent Ontario Public Service Employees Union (the "Union") is their bargaining agent. The other Respondent, the Crown in the Right of Ontario, Management Board Secretariat, (the "Employer") is their employer. In this ruling we refer to the 1993 decision as "the decision of the first panel", and the 1994 decision, as the "decision of the second panel".

2. The hearing commenced on April 13, 1995, at which time we heard submissions about the proper scope of the reconsideration and how it should proceed.

3. The Employees say that we are able to decide the reconsideration on the basis of argument only and that it is not necessary to hear evidence. They submit that there is no point to a lengthy and costly hearing if they have no entitlement to file a complaint under s. 22(1) of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (the "Act").

4. The Union and the Employer propose we proceed directly to hear the evidence. They say we cannot, and should not, decide the legal issues before us in a contextual vacuum. Additionally, the Union submits that due to legal developments since January 1, 1990, including the statutory reconfiguration of the bargaining unit structure in the public sector and new pay equity negotiations, the issues raised in this case are academic.

5. The Employees suggest that the issue is whether they are entitled to file a complaint under s.22(1) of the Pay Equity Act that the deemed approved plan negotiated by the Union and the Employer is in contravention of the Act. They say this question was raised by the Union and the Employer as a preliminary matter before the original panel. At that time the parties agreed to a method of proceeding that was incorporated into a Pre-Hearing Memorandum of Agreement, of November 30, 1992, which the Employees say should still be applicable. They argue that it would be wrong to consider any more than what was before the first panel of the Tribunal.

6. The Union and the Employer each say that the initial approach of focusing on standing as a preliminary matter has not proven useful, as the long history of this case illustrates. In their view the best way to proceed is to consider the complex legal issues raised by the application in the context of evidence. Moreover, as the second panel of the Tribunal found that the original decision "ought to be reconsidered in its entirety", the Employer and the Union say that the parties have been returned to "square one", leaving open how the matter should proceed. They point out that the Tribunal in the second decision clearly indicated that it did not want to "unduly restrict a new panel in its determination". They also refer us to our statutory jurisdiction to determine the practice and procedure to be followed in matters before us.

7. In order to assist our thinking regarding the scope of the reconsideration, we asked counsel to advise us of any relevant authority. We have now been advised by counsel for the Employees and for the Union that their research in this regard has not located caselaw which would be of assistance to us. Our own research confirms this. In the absence of jurisprudence constraining the scope of reconsideration, we intend to approach the problem as pragmatically as possible.

8. We think it essential to attempt to simplify the proceedings where possible and to prevent undue delay. However, what might at first instance seem to be the simplest solution, that of a legal argument on standing alone, does not appear to us to be the quickest way to determine whether these Employees can challenge the plan negotiated by the Employer and the Union. This is one of the unusual instances when the Tribunal feels it appropriate to deviate from a Pre-Hearing Memorandum. The process adopted in it pre-dates two hearings and decisions in this matter and in our view is not the best way to proceed.

9. The issue before the first panel of the Tribunal and which the Employees propose we answer in the absence of evidence includes two basic questions which are:

1. Can a member of a bargaining unit complain under s. 22(1) to the Commission that there has been a contravention of the Act?

2. If the answer is yes, can this include challenges to a deemed approved plan?

10. The first of these questions is relatively straightforward, and is capable of response in the absence of evidence. A parallel question was addressed in a recent decision of the Tribunal which considered the right of groups of employees within a bargaining unit to seek enforcement of an order of the Commission issued against the employer and the union, pursuant to s.22(1) of the Act. Although finding that the employees did not have a right to an enforcement hearing, the Tribunal held that the Groups of Employees were entitled to file a complaint with the Commission under s. 22(1) complaining that there had been a contravention of an order of the Commission, Hamilton Civic Hospitals (8 May 1995) 0466-93; 0482-94; 0490-94; 0502-94; 0516-94; 0517-94; 0532-94; 0534-95, at paragraph 13.

11. In our view, a similar reading of s. 22(1) applies in this case, where the complaint is that there has been a contravention of the Act. Thus a member of a bargaining unit can complain to the Commission that the Act has been contravened by its union and employer. However, this affirmative answer really only opens the door and shifts the inquiry to the second question, that is, whether the Employees can challenge the deemed approved plan. The balancing of a deemed approved plan with contraventions of the Act is the more difficult aspect of the preliminary question. It is also the issue that has given rise to the problematic developments in the history of this case.

12. We are of the view that these complex issues are better analyzed in the context of evidence. It seems simpler, fairer, and perhaps in the long run, even more efficient to examine these matters in their evidentiary context. We chose to adopt a common practice of arbitration boards by hearing all the evidence on the merits of this case prior to considering the legal arguments relating to if and when a complaint under s.22(1) can include a challenge to a deemed approved plan.

13. In light of this ruling, we direct that counsel prepare for a case management meeting to be set by the Registrar and to attend the meeting with an individual capable of giving instructions.

14. If the Union intends to pursue its alternative position that intervening developments have made these issues academic, it is to notify the Tribunal and the other parties within 10 days of receipt of this ruling and to file amended pleadings within 21 days of this ruling, following which the Employees and the Employer will have 14 days to file their reply.