Ottawa Board of Education v. Ontario Secondary School Teachers' Federation, 1996 CanLII 7947

PAY EQUITY HEARINGS TRIBUNAL

0473‑93 Ottawa Board of Education, Applicant v. Ontario Secondary School Teachers' Federation ‑ Educational Assistants, Respondent

0474-93 Ottawa Board of Education, Applicant v. Ontario Secondary School Teachers’ Federation - Plant and Support Staff Unit, Respondent

0485‑94 Ontario Secondary School Teachers' Federation ‑ Educational Assistants, Applicant v. Ottawa Board of Education, Respondent

0487‑94 Ontario Secondary School Teachers' Federation ‑ Plant and Support Staff Unit, Applicant v. Ottawa Board of Education, Respondent

Before: Phyllis Gordon, Chair and Members Bruce Budd and Charles Taccone

Appearances: Carolyn Kay‑Aggio, Rand Lintell and Joanne Glaser for Ottawa Board of Education; Cindy Wilkey and Lynn Hopkins for Ontario Secondary School Teachers' Federation

Cite as: Ottawa Board of Education (28 May 1996) 0473‑93; 0474‑93; 0485‑94; 0487‑94 (P.E.H.T.)

DECISION OF THE TRIBUNAL, MAY 28, 1996

1. This decision considers the obligation of the Ottawa Board of Education (the "OBE") to bargain a pay equity plan with the Ontario Secondary School Teachers' Federation (the "OSSTF") for two of its bargaining units. The OSSTF became the bargaining agent for the Educational Assistants (the "EAs") on March 24, 1992. These employees were included in the non-union pay equity plan originally posted by the OBE on September 1, 1989. The OSSTF became the bargaining agent for the other unit, the Plant and Support Staff Unit (the "PSSU"), on May 22, 1991. These custodial, maintenance and cafeteria workers, were formerly represented by the Ottawa Board of Education Employees Union (the "OBEEU"). The OBE and the OBEEU had negotiated a pay equity plan which was posted on October 22, 1990. A related matter between the OBE and the OSSTF in regard to speech language pathologists has now been settled. Files 0475-93 and 0486-94 have been withdrawn.

2. Upon certification as bargaining agent, the OSSTF notified the OBE in writing that it wished to enter into pay equity negotiations on behalf of each unit. The OBE responded that it was not obligated to negotiate and the OSSTF applied to Review Services. In an Order of February 24, 1993, the Review Officer ordered the OBE to negotiate pay equity with the OSSTF for the PSSU and on May 29, 1993, she ordered the OBE to negotiate pay equity for the EAs. In each instance she ordered that the negotiations be with respect to all aspects of a pay equity plan, as described in s. 13 of the Act. The OBE challenges the Orders, and the OSSTF defends them.

3. When the OSSTF applied to Review Services, it did so by different avenues. The Review Officer indicates in her PSSU Order that her appointment was under s. 16 of the Act; in her EA Order she states that her appointment follows a complaint of the OSSTF pursuant to s. 22(1). Counsel did not refer to any possible ramifications flowing from these different avenues. We adopt their approach and address the substantive issues of statutory interpretation similarly for both bargaining units, regardless of the procedural route by which they reached the Tribunal.

4. The OSSTF says that there are two reasons why the OBE is required to negotiate pay equity with the union: (1) the fact of its certification for the two units is a changed circumstance in the establishment which make the plans no longer appropriate; and, (2) the OBE plans contravene the Pay Equity Act, R.S.O. 1990, c.P.7 (the “Act”).

5. We encouraged counsel to proceed with their legal arguments on these issues on the basis of an agreed statement of facts. As this was not possible, we adopted a two-stage approach to the determination of whether the OBE is required to negotiate with the OSSTF. This decision, which is the first stage, considers whether there is an obligation to bargain, and what criteria and standards may apply. These questions are considered in the context of whether the certification of the OSSTF is a changed circumstance requiring negotiations. We also consider whether the OSSTF’s allegations that the plans contravene the Act lead to a requirement to negotiate, and what standards and criteria are relevant to allegations that deemed approved plans contravene the Act. Counsel provided very thorough submissions on the relevant statutory provisions and jurisprudence, and to some extent referred to the pleadings, the evidence already received in the preliminary matter, and the reports already filed, for purposes of illustrating their submissions. The second stage will be to determine the extent to which the OBE must negotiate with the OSSTF, and, whether the plans do indeed contravene the Act, in light of the legal parameters set out in this decision.

6. This decision has three sections. In the first, we briefly set out the structure of the Act, as it is relevant to both of the reasons advanced by the OSSTF. In the second, we consider whether there are changed circumstances in the establishment which make the plans no longer appropriate, the consequences of splitting a plan, the standards and scope of negotiations in these circumstances, and the obligations regarding maintenance. In the third, we consider whether allegations that a plan contravenes the Act require an employer to bargain, when deemed approval occurs and what is the significance, whether the Tribunal has jurisdiction to hear applications regarding plans which have already been deemed approved by the Commission, the scope of contravention complaints in this context, and the standards applicable to the consideration of these issues in the context of a deemed approved plan.

Section 1: Statutory Framework

7. While all employers in Ontario, (except those in the private sector with fewer than ten employees), have the obligation to provide pay equity, they are not all required to provide it in the same manner, or to follow the same process. All employers are covered by Part I of the Act, which prescribes the minimum requirements of pay equity. It includes the purpose of pay equity and the necessary elements of a pay equity regime for all employers covered by the Act, clarifies what pay equity entails and when pay equity is achieved. It also includes the general compliance provisions, s. 7(1) and s. 7(2), which set out the minimum statutory obligations of all employers and bargaining agents:

s. 7(1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

s. 7(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).

Some employers, including the OBE, are also covered by Part II, which is entitled “Implementation”. This Part prescribes how these employers are to carry out pay equity. It spells out the requirement for pay equity plans, as well as the different processes to be adopted by employers with respect to plans where the employees are, or are not, represented by bargaining agents. It provides for access to the Commission to resolve problems prior to the deemed approval of plans. Part III does not pertain to this dispute. Part IV of the Act is the Enforcement section, and, like Part I, is of general application.

Section 2: Changed Circumstances

Are there changed circumstances?

8. The significance of certification of a bargaining agent, after a plan has been deemed approved was addressed by the Tribunal in St. Joseph’s Villa (1993), 4 PER 33. The relevant issue was whether the certification of the bargaining agent, after the posting and deemed approval of an employer's pay equity plan, amounted to changed circumstances rendering the plan not appropriate. The majority focused on a bargaining agent's obligations to represent its members and found that the certification of the bargaining agent resulted in a plan that was no longer appropriate because it now included both bargaining unit and non-bargaining unit personnel. The Tribunal ordered that the plan be split into two, enabling the bargaining agent to carry out its continuing obligations to the employees it represented. The Tribunal limited the amendment of the original plan to its form, and expressly refrained from ordering that a new plan be negotiated. It noted that there had been no suggestion that the contents of the posted plan contravened the requirements of the Act. The Tribunal saw no reason to order that a deemed approved plan to which no one had objected be re-opened or re-done.

9. Both counsel refer us to this decision. The OSSTF relies upon it for the assertion that certification of a bargaining agent after a plan has been deemed approved is a changed circumstance in the establishment which makes the pay equity plan no longer appropriate. The OBE submits that the dissenting decision, that the certification did not amount to changed circumstances, is correct and should be followed. As an alternative submission, the OBE points out that the majority ordered a mere splitting of the plan, a change that went to form and not content. Thus, it says that the decision does not go as far as the position advanced by the OSSTF.

10. We agree with the majority decision in St. Joseph’s Villa. Where some, but not all, of the employees covered by the employer’s non-union plan are subsequently organized into their own bargaining unit, a changed circumstance exists in the establishment which renders the plan no longer appropriate. Therefore, we order that the non-union OBE plan be split so that employees represented by the OSSTF in the EAs unit have their own plan. However, the situation differs for the PSSU. When employees in a bargaining unit already have a plan which is exclusive to that unit, and a subsequent change in bargaining agent does not affect the composition of the unit and therefore the capacity of the new bargaining agent to represent its members is not affected, the situation is different. Unless the composition of the unit has changed, the rationale for finding that the originally negotiated plan is no longer appropriate due to the certification of the new bargaining agent, does not apply. The factual situation in St. Joseph’s Villa does not arise in the OBE-OBEEU plan situation.

Consequences of splitting a plan

9. We next consider the consequences of splitting a pay equity plan. It is possible to imagine that a division of one plan into two or more plans could be a purely administrative task, if the resulting plans are appropriate. However, changes may be needed to ensure that the new plan (which applies to the bargaining unit), or the remaining plan (which applies to the non-union employees) conform to the Act. If the new plan is no longer appropriate, is negotiation necessary? If so, what standards apply to the negotiations?

10. The majority decision in St. Joseph’s Villa ordered the plan be split, but did not order the parties to negotiate. The 1993 amendments of the Act were not before the panel in that case. Counsel for the OBE suggests that, since the matters before us were at Review Services prior to the amendments, s. 14.1(1) is not applicable. It is our view that s. 14.1(1) has two aspects: it provides a subjective determination when notice to bargain may be given; and, it sets out the process to be followed for negotiating, once notice has been given. The Tribunal has relied on existing case law, and not s. 14.1(1), in determining that there has been a changed circumstance that makes the plan no longer appropriate for one of the two bargaining units, but not for the other. Remedy in each case is at the discretion of the panel. In deciding whether to apply the conclusion of St. Joseph’s Villa, that negotiations were not in order, we refer to the Act for guidance. As the Act now speaks to a process in the context of changed circumstances in the establishment making the plan no longer appropriate, our remedy can and should reflect the statutory direction.

11. Section 14.1(1) states:

s. 14.1(1) If, in an establishment in which any of the employees are represented by a bargaining agent, the employer or the bargaining agent is of the view that because of changed circumstances in the establishment the pay equity plan for the bargaining unit is no longer appropriate, the employer or the bargaining agent, as the case may be, may by giving written notice require the other to enter into negotiations concerning the amendment of the plan.

Sections 14.2(1) and 14.1(5) provide that an employer who is of the view that there are changed circumstances which make a non-union plan no longer appropriate, may amend the plan and are to post the amended plan. Section 22(2)(b) provides that an employee or a group of employees, or the bargaining agent, if any, representing them, may complain that the plan is no longer appropriate for the employee or group of employees.

12. Section 14.1(1) provides that if either party is of the view that there are changed circumstances rendering the plan no longer appropriate, it can give written notice requiring the other to enter negotiations. Both sides are then required to enter into negotiations in good faith. As noted, in this case the Tribunal has made the determination that the non-union plan is not appropriate, and ordered that it be split. If either the OBE or the OSSTF holds the view that there are aspects of the new EA plan which result from the division and are no longer appropriate, they may identify them and propose amendments.

What standards apply? What is the scope of the negotiations?

11. Where possible, we believe it preferable to ascertain from the Act what standards should apply to such negotiations, thereby enabling a consistent approach to negotiations of amendments necessitated because the plan is no longer appropriate. We refer to s. 14.1 for guidance. Section 14.1(2) identifies the provisions of the Act which can apply to negotiations and agreed to amendments of the plan: the parties may negotiate the pay equity plan for the bargaining unit (s.14(2)(b)); they may consider whether the establishment of the employer should include two or more geographic divisions (s.14(3)(a)); and, they may determine whether a job class is a female or a male job class (s.14(3)(b)).

12. This section places significant limits on the negotiations which may flow from changed circumstances. As pointed out by counsel for the OBE, the list of sections which apply to negotiations under s. 14.1(1) does not include s. 14(2)(a), the gender-neutral comparison system (the "GNCS") used for the purposes of s. 12. This is a significant omission, because what is to be amended does not go to the root of the plan. As well, the Act distinguishes between "a new plan" and "an amendment to a plan". Section 14.1(1) refers to "the amendment of the plan", language which differs from that found in s. 13.1(2), concerning the sale of a business, where the wording is “agreeing on a new plan". The choice of words in s. 14.1(1), narrows the scope of the negotiations and the resulting amendments.

13. In the future, if further amendment of either of the plans is required, s. 14.1(1) and s. 14.1(2) will govern the negotiations between these parties. Thus, notice to negotiate can be prompted by a subjective view held by one or the other party, that changes in the establishment, (other than the certification of the OSSTF), have made the plan no longer appropriate and the scope of the negotiations is as set out. Subsections 14.1(3) and 14.1(4) also provide for intervention of the Commission, if the parties do not agree on an amendment.

What process applies to the obligation to maintain compensation practices that provide for pay equity?

15. As the OBE has acknowledged that it is obligated to negotiate with the OSSTF with respect to the maintenance of pay equity, we take this opportunity to comment briefly upon the appropriate process for this joint responsibility. We agree with the statement of counsel for the OBE that s. 14.1 applies to maintenance. As an employer, the OBE is under an obligation to maintain compensation practices that provide for pay equity, s. 7(1). The OBE, as a Part II employer, refers to Part II for guidance on how to maintain pay equity, just as it did for the establishment of pay equity. As the bargaining agent, the OSSTF is obligated not to agree to compensation practices that fail to provide for the maintenance of pay equity for any of the bargaining units it represents, s. 7(2). By allowing for a subjective determination of when negotiations may be necessary, s. 14.1(1) provides the procedure by which the OSSTF can comply with its s. 7(2) obligation. If there is no agreement, then there is a procedure for seeking the Commission’s assistance in settling, deciding or adjudicating the dispute.

16. “To maintain” is very general language, with several different meanings in the administration of compensation practices. On-going and regular maintenance of an employer’s compensation practices may, or may not, affect the provision of pay equity. The direction given to Part II employers is that when the impact of on-going maintenance amounts to changed circumstances in the establishment making an already deemed approved plan no longer appropriate, the plan is to be amended. Where there is a bargaining agent, these amendments are to be negotiated with the bargaining agent. Once amended pursuant to s. 14.1, the amended plan is again deemed approved, s. 14.2(2) and s. 14(5). Where there is no bargaining agent, the amended plan is to be posted by the employer, s. 14.1(5), s. 14.2(1).

17. The Review Officer ordered that negotiations be effective retroactively, to the date the bargaining unit was certified. To the extent we do find that there is an obligation to negotiate, we agree with this portion of her Order. The OSSTF’s certification as the bargaining agent for the EAs is the event which prompts the need for the EA plan to be split from the former plan. If the split plan necessitates further negotiations, any amendments are to be effective to the time when the triggering event occurred. Similarly, the OSSTF has been the bargaining agent for both units for some time, and has had an obligation not to agree to compensation practices which fail to provide for the maintenance of pay equity. It can raise specific proposals it believes necessary in order to maintain compensation practices which provide for pay equity, when, in its view, changed circumstances in the establishment have made the plan no longer appropriate.

Section 3: Allegations that the plan contravenes the Act

18. The second major reason the OSSTF advances to establish its entitlement to negotiate the pay equity plan for each of the units is that, in its view, the current plans contravene the Act. In its pleadings it referred to several faults in the plan, the GNCS and the process involved, which it states establish the contraventions. We summarize the allegations as follows:

i) the GNCS used in the development of both plans is fundamentally flawed, inappropriate for use in a school or human services setting, is gender biased and fails to achieve and maintain pay equity in violation of the requirements of sections 4, 5, and 12, of the Act;

ii) the process followed for the development of each plan, particularly regarding data collection, is deficient;

iii) the comparisons and adjustments for the EAs were based on an improper calculation of job rates;

iv) the job rates in the original OBEEU plan (now the PSSU plan) were inappropriately readjusted;

v) the process used to develop the OBEEU plan is suspect because it was a sweetheart deal reached by the OBE and the OBEEU; and,

vi) the resulting plans are gender biased and do not meet the requirements of the Act, including sections 4, 5, 6, 7, 8, 12, and 14.

Is there a requirement to negotiate?

19. The OSSTF submits that the OBE should be required to negotiate as a result of its allegations of contravention for three reasons. These are based on s. 7(2), s. 22(2)(b), and s. 22(1), which, when read with the general scheme of the Act, the OSSTF describes as supportive of collective bargaining. The first submission is that when a bargaining agent raises a potential contravention of the Act, the employer has an immediate obligation under s. 7(2) to evaluate and respond to the allegation. The second, and alternative submission, is that once an allegation of contravention has been made, the situation can be referred to as a “conceptual change of circumstances” to which s. 22(2)(b) and s. 14.1(1) would apply. The third submission is that an obligation to bargain can be the result of a s. 22(1) complaint. However, it is the view of the OSSTF that permitting the parties to resolve the issues on their own, rather than requiring intervention of a third party (the Commission), is more consistent with the scheme of the Act. In response to these arguments, the OBE submits that an employer is only obligated to negotiate if a contravention of the Act is demonstrated.

20. In its early correspondence, the OBE recognized an employer obligation to negotiate terms of a plan that offend the Act but it did not specify what process would provide the opportunity for the OSSTF to demonstrate the violation. Subsequently, the OBE took the position that the allegation would have to be discussed at Review Services. Therefore, both parties have at times recognized the advantages of dealing with these issues on their own, giving meaning to what is called the self-managed process of pay equity. It is our view that in many instances this approach is to be recommended. For example, it seems appropriate that a newly certified bargaining agent would review the existing pay equity plan and advise the employer if it believes there are contraventions of the Act. Likewise, an employer may voluntarily agree to consider the bargaining agent’s analysis to ensure that the plan conforms to the statutory requirements. Our mandate, however, does not include the authority to make such directions unless they are provided for in the Act.

21. We do not agree with the OSSTF that, when presented with an allegation that the plan contravenes the Act, an employer must enter into negotiations about the plan, based on s. 7(2) of the Act. The language of s. 7(2) is forward-looking. “No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).” Insofar as the initial obligation of the employer in s. 7(1) was to establish compensation practices that provide for pay equity, the OSSTF cannot be imputed to be responsible for compensation practices that it did not bargain for, or agree to. If the employer has failed in providing compensation practices that provide for pay equity, the Act provides the avenue for redress in s. 22(1) by establishing a complaint mechanism for allegations “that there has been a contravention of the Act”. That is, the Act provides that such allegations can be subject to third party review and resolution, but does not contain a specific obligation to renegotiate plans outside of s. 14.1 situations. We do not infer from s. 7(2) either an automatic obligation to negotiate, or, that refusal to do so at this juncture is a contravention of the Act.

22. We are also not prepared to treat allegations of contravention as “conceptual changes of circumstances”, thereby importing the procedure outlined in s. 14.1(1). Section 14.1(1) specifies that the changed circumstances are to be in the establishment. The words “in the establishment” cannot be read to include perceptions of contravention.

23. It is our view that a s. 22(1) complaint must be upheld before an order can be made directing the parties to negotiate with respect to the alleged contravention. However, even in these circumstances, the order may not provide for negotiations. The remedy ordered pursuant to a s. 22(1) complaint is always tailored to the specific case. It may specify what steps the parties should take to correct the contravention. These steps may include a direction to negotiate, in which case it is up to the order-maker to decide whether to spell out the process appropriate for the negotiations.

When does deemed approval occur and what is its significance?

24. The cornerstone of Part II of the Act is the pay equity plan. Section 13 sets out in detail what it is to contain. The plan is then posted by an employer where there is no bargaining agent, and the employees are entitled to review and submit comments about the plan and the employer may amend the plan. Employees may file an objection with the Commission respecting the plan. Deemed approval occurs after this objection period has passed. Where there is a bargaining agent, the plan once again must contain what is outlined in s. 13. Upon execution by the parties, it is deemed approved and posted. Thus, in both cases, deemed approval is contingent upon not only the passage of time, but also with formal compliance with s. 13. The objection period is premised upon the posted document (the plan) setting out what is listed in s. 13. Otherwise the review and objection process has no meaning. It may well be that a “plan”, not in compliance with s. 13, would not have been capable of review by a reasonable employee, rendering the objection period ineffective. The approval occurs by operation of law, not after a process of filing and actual review by the Commission. Compliance with the formal requirements of s. 13 is therefore essential before the attributes of deemed approval attach to a plan.

25. It is the position of the OBE that its plans have been deemed approved pursuant to s. 14(5) for the OBEEU (now the PSSU plan) and pursuant to s. 15(8) for the OBE's non-union plan (part of which is to be the EAs’ plan). In their submissions, both counsel raise several issues respecting deemed approved plans. Some are based on the assumption that we would find an obligation to bargain arising from a mere allegation of contravention. These concern the setting of an appropriate threshold test which a party would need to meet in order to establish an obligation to negotiate. Others address the more fundamental issues respecting deemed approved plans. As we have held that, in the absence of a successful s. 22(1) complaint, the Tribunal does not have the authority to order negotiations when contraventions of the Act are in issue, our focus is on those aspects of their submissions which relate to deemed approved plans, and not on what would be an appropriate threshold test.

26. Counsel for the OBE emphasizes the significance of giving meaning to “deemed approval”, and the need for finality in the pay equity process. She refers to the staged sequence of events found in Part II, indicating that deemed approval is the conclusion of the process of implementation. Once the objection period has passed, the employer is entitled to rely on the finality that is to be found in the Act, and the employees and bargaining agent are bound by the plan. Counsel for the OSSTF suggests that deemed approval means no more than compliance with the formal, rather than the substantive provisions of the Act. She points out that it is now well established that deemed approval does not prevent an allegation of contravention coming forth.

27. It is our view that the deemed approval provisions of the Act have greater significance than counsel for the OSSTF suggests. We are also of the view that the words “deemed approval” should be interpreted consistently. These provisions have the same impact regardless of whether the deemed approved plan was negotiated with a bargaining agent or employer-developed. The potential scope of a complaint does not vary because the complainant was not part of the initial bargaining process and was not entitled to raise its concerns prior to the deemed approval. Nor does the significance of deemed approval shift, depending upon who is making the allegation that the plan contravenes the Act. Subsections 14(5) and 15(8) are as follows:

s.14(5) When a pay equity plan has been executed by an employer and a bargaining agent, the plan shall be deemed to have been approved by the Commission and, on the day provided for in the plan, the employer shall make the first adjustments in compensation required to achieve pay equity.

s. 15(8) If no objection in respect of a pay equity plan is filed with the Commission under subsection (7), the plan shall be deemed to have been approved by the Commission and, on the day provided for in the plan, the employer shall make the first adjustments in compensation required to achieve pay equity.

28. The Divisional Court considered s. 14(5) in Ontario Northland, (1993), 4 PER 19 at 20, and upheld the Tribunal decision that the deemed approval provision did not insulate a negotiated plan containing an error which violated a specific provision of the Act. The Court found that s. 22(1) must be available to raise matters even when the plan is deemed approved. "Any other result would leave employers and bargaining agents free to contract out of the Act, rendering sections 7(1) and 7(2) ineffective."

29. The Court did not comment on the statement found in paragraph 18 of the majority decision of the Tribunal, that "the purpose of the "deemed approved" sections is to allow parties with an ongoing collective bargaining relationship to negotiate and agree upon a pay equity plan without having to seek prior or formal approval of the Pay Equity Commission". (1992), 3 PER 166. We agree that the provisions relieve the parties from filing with the Commission. However, we do not believe that their significance is limited to an administrative function. Subsections 13(9) and 13(10) provide:

s. 13(9) A pay equity plan that is approved under this Part binds the employer and the employees to whom the plan applies and their bargaining agent, if any.

s. 13(10) A pay equity plan that is approved under this Part prevails over all relevant collective agreements and the adjustments to rates of compensation required by the plan shall be deemed to be incorporated into and form part of the relevant collective agreements.

30. Once the plan which is in formal compliance with s. 13 has been executed or, posted and the objection period has passed, it is deemed approved. That is, it is treated by the law as if it had been approved by the Commission. Section 13(9) and s. 13(10) set out the significant consequences of this approval: the plan is binding on the employer and employees, and their bargaining agent, if any; and, it prevails over and forms part of the collective agreement. Future actions of the parties are governed by what the plan provides. The plan is to be implemented according to its terms, and failure to do that can be the subject of a complaint under s. 22(2)(a).

31. On the other hand, the plan itself must comply with the Act. While deemed approval of the plan binds the parties, it is not a certification that the plan fully complies with the Act. It does not mean that it necessarily conforms to the statute, or that the minimum constituent elements of pay equity, set out in Part I of the Act, have been correctly implemented. This is the implication of s. 13(11) which states:

s. 13(11) Every employer who prepares and implements a pay equity plan under this Part shall be deemed not to be in contravention of subsection 7(1) with respect to those employees covered by the plan or plans that apply to the employees but only with respect to those compensation practices that existed immediately before the effective date. (Emphasis added)

32. Employers who prepare and implement a plan are provided statutory protection from a complaint that s. 7(1) was contravened with respect to compensation practices that existed before, but not after, the effective date of January 1, 1988. By implication, s.13(11) recognizes the on-going and positive obligation to establish and maintain compensation practices that provide for pay equity after the effective date. Compliance with Part II results in binding plans, but does not relieve an employer from its s. 7(1) obligation. This result is consistent with the finding of the Divisional Court in Ontario Northland.

Does the Tribunal have the jurisdiction to consider an allegation about a plan which has been deemed approved by the Commission?

33. Counsel for the Employer challenged the Tribunal's jurisdiction to ever consider complaints regarding the OBE plans on the basis that they have been deemed approved by the Commission pursuant to s. 15(8) and s.14(5). As the Commission is defined by s. 27(2) to consist of the Pay Equity Hearings Tribunal and the Pay Equity Office, she argues that the Tribunal cannot adjudicate on a plan which it is deemed to have approved. Our analysis indicates that this is not a relevant concern: deemed approval does not provide insulation from a complaint that s. 7(1) of the Act has been contravened. It is immaterial whether the Commission is part of the approval process when the matters before either the Office or the Tribunal are beyond the scope of what is deemed to have been approved. We therefore will not review the careful submission of OSSTF counsel on this point or consider this jurisdictional challenge further.

What is the scope of allegations that a deemed approved plan contravenes the Act?

34. In its pleadings and submissions, the OSSTF details the process used in the development of the OBE plans, and alleges that these processes do not comply with the “requirements of the Act”. It also sets out a very detailed critique of the GNCS used by the OBE. In order to illustrate the sort of allegations the OSSTF is raising, particularly regarding the failure of the GNCS and the process used to meet the requirements for gender neutrality and of the Act, counsel referred us to views of an expert expressed in a report which had been filed.

35. Many of those “requirements” were developed in the context of adjudicating disputes prior to the deemed approval of the plan, where the Tribunal was considering the approach parties at an impasse should adopt. The Tribunal reviewed the evidence and the expertise offered, and evolved a jurisprudence regarding such things as data collection, the structure and operations of committees, the information to be made available, the nature of the workplace, etc.--the whole gamut of what is involved in the decisions to be adopted during the development of the plan. On the other hand, the parameters of a complaint differ from the parameters framing the issues prior to deemed approval, which are defined by the parties in the context of the self-managed implementation process. Generally, a s. 22(1) complaint must demonstrate a contravention of the Act. When the complaint is about a plan, the issue is not whether the development of the plan met the standards established in the jurisprudence pertinent to the implementation process, but whether it meets the standards found in Part I of the Act.

36. All employers are required to do job comparisons in order to carry out pay equity. Part II employers are required to conduct their comparison of female and male job classes by using a gender-neutral comparison system. The choice of the GNCS is part of the negotiated agreement with the bargaining unit, or the decision of the employer. The selection of a particular GNCS is made prior to the development of the plan, and its application is usually the most extensive part of the preparation of the plan. If the selection of the GNCS is not agreed to by the bargaining agent or the employer, they can attend at Review Services prior to executing the plan. If it is not the subject of an objection in the non-union context, the employer’s selection of GNCS is the tool for the job comparisons. These parts of the process precede the deemed approval and the payment of pay equity adjustments.

37. Thus, an allegation that a GNCS on its own is not gender neutral, or, that the process which was adopted for its application to the worksite was not adequate, are properly the subject matter of objections, notices that the parties have reached an impasse, or, pre-deemed approval complaints. These are made during the implementation process and prior to deemed approval. After the deemed approval takes place, the concern is whether the resulting plan contravenes s. 7(1) of the Act.

38. Section 7(1) is the general compliance provision obligating employers to establish and maintain compensation practices that provide for pay equity. As they are of general application, the words “provide for pay equity” are referable to the standards found in Part I of the Act itself. Section 22(1) speaks of contraventions of “this Act, the regulations, or an order of the Commission”. This list refers to specifics: in each case, one must be able to identify that there has been a contravention, and what has been contravened. We thus conclude that when deemed approved plans are the subject of a contravention allegation, one must indicate what aspect of the plan contravenes what minimum standard found in Part I of the Act.

Standard of proof required to establish a s. 22(1) complaint

36. Both counsel made submissions regarding the standard of review applicable to a deemed approved plan, in face of an allegation that it contravenes the Act. Counsel for the OSSTF suggests that the appropriate standard for assessing a contravention is correctness, regardless of whether the plan is deemed approved or not, and that the normal burden of proof, the balance of probabilities, should apply. She points out that standards which entail subtleties of "reasonableness" or "patently unreasonable" are too complex to be useful to those with the obligations to ensure that pay equity is maintained. She submits that we should avoid the development of different and difficult standards and points out that the Act does not make any special exception for complaints respecting deemed approved plans.

37. Counsel for the OBE suggests that, prior to advancing a complaint regarding a deemed approved plan, the complainant should be required to explain the delay in raising issues that could have been the subject of an objection earlier on. She also says that employers should not be held to standards set by jurisprudence developed after the plan has been deemed approved. In the context of her submission regarding the appropriate threshold, she submits that the standard should be parallel to that of judicial review, showing great deference to the plan that has been deemed approved; that is, that the plan was patently unreasonable. As we have found that the Act itself provides that deemed approved plans must comply with s. 7(1) of the Act, we are not sympathetic to the view that a complainant must explain why the matter was not raised prior to the plan being deemed approved. Moreover, to the extent that the content of disputes before and after deemed approval differs, the OBE’s concern is misplaced.

38. We will examine an allegation that a deemed approved plan created under Part II contravenes the Act by inquiring whether the plan meets the requirements of Part I. To be successful, the complainant must show in what way the compensation practices do not provide for pay equity, by reference to the specific provisions of Part I of the Act, which set out what pay equity entails. In this way the Act provides for the resolution of two competing aspects of pay equity. The first is the requirement that Part II employers establish and maintain pay equity by the creation, implementation and amendment of deemed approved plans. The second is that they have compensation practices that provide for pay equity and plans that comply with the minimum standards of the Act.

39. Some of the Part I provisions which set out what pay equity entails use specific language and clearly articulate what the requirement or minimum standard is. An example of this sort of provision is found in the definition section, s. 1(1), where job rate is defined as “...the highest rate of compensation for a job class”. On the other hand, there are some provisions which may refer to a range, rather than a precise standard. An example of this is found in s. 6(1), which provides:

s. 6(1) For the purposes of this Act, pay equity is achieved under the job-to-job method of comparison when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value. (Emphasis added)

15. It is our view that the standard applicable to determining whether the contravention has been established is necessarily different, depending upon whether the provision in question sets an exact minimum standard or implies a range. Thus, where the Act is precise, compliance is clearly necessary. Where the Act grants an element of choice to those designing the plan, some deference to their decision is appropriate. When the provision of the Act alleged to be contravened sets an exact requirement, we will inquire whether the impugned aspect of the plan is correct. When the provision is not capable of exact application, but implies a range or an exercise of discretion, we will inquire whether the impugned aspect of the plan is reasonable. The decision about whether a plan complies with the minimum standards of Part I is thus as objective an exercise as is possible.

16. In some instances, proof that Part I has been contravened may be quite straight forward and achieved by reference to the plan alone. This is more likely when the provision alleged to be contravened sets out an exact standard. In other cases, it may be necessary to examine the documents behind the plan or provide an expert opinion in order to have a fuller understanding of the alleged violation. More significantly, it may be necessary to call experts to provide objective evidence, external to the plan and its development, to establish whether or not the plan’s result is reasonable.

17. We are mindful that in many cases employers have already implemented their plan, relied on its deemed approval and paid out the required adjustments. In these circumstances, employers may be more vigilant about whether the party challenging the plan has alleged a prima facie case. While this is always an aspect of the adjudicative process, it may play a very significant role in these matters. Therefore, the party alleging the contravention must be careful to set out in its pleadings, along with any filed expert reports, the details of the allegation that the plan, or an aspect of it, does not comply with Part I. For, ultimately, the panel hearing the case may be required to determine the sufficiency of the pleadings.

18. At this juncture we are not reviewing issues of process, which are properly raised when the plan is being developed or amended. However, the OSSTF raises another sort of process issue when it alleges that the OBE - OBEEU plan was a sweetheart deal, and that the job rates were inappropriately readjusted. Counsel did not make submissions about how these allegations of improper conduct should be treated. We therefore do not address this issue now. If the OSSTF wishes to pursue these allegations, we suggest it specify what sections of the Act have been contravened and what remedy would be appropriate.

19. It may be helpful to summarize the findings we have made in this decision:

i) The OBE non-union plan is to be split. The OBE is to negotiate with the OSSTF if either party holds the view that there are aspects of the new EA plan which result from the division, and are no longer appropriate. Section 14.1 applies to such negotiations.

ii) The OBE is not obligated to negotiate with the OSSTF with respect to what is now the PSSU plan, due to the certification of the OSSTF as the bargaining agent of this unit.

iii) The obligation for these parties to maintain pay equity is carried out by reference s. 14.1 of the Act.

iv) The OBE does not need to negotiate pay equity on the basis of the OSSTF allegation that the plans contravene the Act. If, in Stage II of these proceedings, the Tribunal finds a contravention, one of the possible remedies is an order that the parties negotiate.

Stage II of these proceedings

20. We note that in this case, the OSSTF did indeed provide very extensive pleadings. However, if the parties wish to litigate the second stage of this dispute, revised pleadings may be appropriate to frame the issues in light of the parameters set out in this decision. We therefore order that either party may revise and amend their pleadings prior to proceeding with Stage II. If settlement discussions can be assisted with the intervention of a prehearing vice-chair, the parties are invited to contact the Deputy Registrar of the Tribunal.