The Canadian Union of Public Employees - Local 2974.1 v. The Corporation of the County of Essex, 1996 CanLII 8065

PAY EQUITY HEARINGS TRIBUNAL

0573-95 The Canadian Union of Public Employees - Local 2974.1, Applicant and The Corporation of the County of Essex, Respondent

0575-95 The Corporation of the County of Essex, Applicant and the Canadian Union of Public Employees - Local 2974.1, Respondent

Before: Mary-Woo Sims, Vice-Chair and Members Charles Taccone and Bruce Budd

Appearances: Gregory Stewart and Donald Shaban for The Corporation of the County of Essex

Martha Rans, Jan Filman, Julia Ardiel and Glen Clark for the Canadian Union of Public Employees Local 2974.1

Cite As: Essex (15 November 1996), 0573-95 & 0575-95 (P.E.H.T.)

DECISION OF THE TRIBUNAL

1. This is a decision concerning two applications related to a Review Officer's Order of July 10, 1995. The application (0573-95) filed by the Canadian Union of Public Employees, Local 2974.1 (“CUPE”) seeks to have the Order enforced. The Corporation of the County of Essex (the “County”) also filed its own application (0575-95) in which it seeks to have the Pay Equity Hearings Tribunal (the “Tribunal”) declare that the Review Officer lacked jurisdiction to make her Order under section 24(1) of the Pay Equity Act (the “Act”). Further, the County asks the Tribunal to make a finding that the Memorandum of Agreement of August 7, 1990 is a final and binding agreement between the parties for the purposes of a pay equity plan (the “plan”) and that the date for final adjustments under the Pay Equity Plan between the parties be set at January 1st, 1995.

The Process

2. We heard evidence from three witnesses: Glen Clark, who served as President of CUPE Local 2974.1 from 1985 - 1990 and was re-elected in 1993, Annette McLean, an Early Childhood Educator and Donald Shaban, who from 1989 to date is the Manager of Human Resources for the County of Essex.

3. In 1988, the County and CUPE began negotiations concerning pay equity. The County retained the services of Peat Marwick to provide the parties with consultative services (as requested by the parties) and draft materials necessary for the preparation of a pay equity plan. This included: the evaluation manual, the job information questionnaire, the evaluation tables and formulas, and various forms, documents and reports required for the task.

4. In May 1989, CUPE and the County agreed to Terms of Reference which set out the following procedures:

a) collect data relating to job content (job analysis);

b) prepare a rating manual to rate all ... jobs and establish a job hierarchy which shall serve as the Pay Equity Plan (Bill 154) and further, subsequently serve as the datum for an all embracing Job Evaluation driven salary administration.

Both parties agreed that the job evaluation process would result in a compensation system that was to deal with internal equity as well as meet the requirements of pay equity. The parties did not clarify how pay equity was to be differentiated from internal equity.

5. Two committees, the Project Committee and the Joint Evaluation Committee, were struck. The Committees comprised representatives from both the County and CUPE. Terms of Reference set out the purpose and the procedures of the committees.

6. In September 1989, the County and CUPE selected a job comparison system which they agreed was gender neutral (a “GNCS”). It measured the value of skill, effort, responsibility and the working conditions. Jobs listed in Schedule A of the 1990 - 1991 collective agreement were used by the parties as their basis for determining job classes for the purposes of pay equity. It appears that the parties then determined the gender character of each job even though it this was not reflected in the Memorandum of Agreement the parties eventually reached. What is not clear from the evidence is how the parties arrived at the gender dominance of the job classes.

7. In the fall of 1989, job evaluation questionnaires were circulated to the incumbents of all jobs to be evaluated. Once the completed questionnaires were received, the Joint Evaluation Committee, based on the negotiated GNCS, evaluated the job classes. The results were then converted to point values by the application of the evaluation tables and formulas provided for by the system. Employees were then advised of their ratings and, in accordance with the Terms of Reference, were given an opportunity to appeal their ratings.

8. The parties did not consider benefits in the calculation of job rates.

9. While the parties characterized male and female job classes they did not use gender as a basis for a comparison in the final development of the pay equity plan; no direct comparisons of female to male jobs were made.

What the Parties Agreed To

10. The parties met to discuss the results of the evaluation. The key consideration in the ensuing negotiations was not the job evaluation results but, rather, it was the affordability of the adjusted pay rates during tough economic times. Both Mr. Clark and Mr. Shaban were candid in their testimony about what the results of the evaluations meant during a time of fiscal restraint. There had already been discussions at County Council about contracting out future landfill operations and about the possible elimination of some or all non-mandatory programmes provided by the County. These non-mandatory programmes included the provision of child care whose workers were covered by these negotiations. It was clear to them that any potential pay increases as a result of the evaluations and pay equity would have to be balanced against potential job losses. As Mr. Clark pointed out in his testimony, and from the exhibits, job evaluation points were a secondary consideration. Mr. Shaban confirmed in his testimony that the parties sought the best fit between pay rates and points and that the common objective of the negotiations was “no loss of services, no loss of jobs”.

11. The parties agreed to develop a banding structure of 30 points per band. We have no evidence as to why the banding structure of 30 points was agreed to especially when the total maximum number of points in the system is 1000. We also have no evidence as to why the first band ranged from 0 to 330, thus encompassing jobs that scored 260 points (Housekeeping/Secretary) and 325 points (Weed Inspector); a difference of 65 points.

12. The parties also agreed to a pay policy of $0.96 job rate differential from band to band. This pay policy or wage line, was developed by simply identifying the highest paid job and the lowest scored job - both of which happened to have been male dominated job classes - and connecting the two points disregarding the rest of the evaluated jobs. We do not have any evidence as to what formula, if any, was used to determine the job rate for each band.

13. An example of the results of this negotiated internal/pay equity plan was that the parties agreed that the female-dominated job of Home Support Crew Chief (Crew Chief), evaluated at 474 points, would be paid 80% of the job rate ($13.07) of the lowest scored job ( Housekeep/Sec which rated 260 points). This amounted to a pay rate for the Crew Chief of $10.45 ($2.06 per hour more than the job rate of $8.39). This negotiation process also resulted in several male-dominated positions receiving higher rates of pay, relative to the Crew Chief, than their value would seem to indicate. We set these out in the following chart:

Title Points 1/90 Rate P. E. Rate Differential

(with Crew Chief)

Crew Chief (F) 474 8.39 10.45

Weed Inspector (M) 325 10.76 14.03 149 pts less

$3.58 more pay

Labourer (M) 357 10.76 14.03 117 pts less

$3.58 more pay

Maintenance I(M) 334 14.60 14.60 140 pts less

$4.15 more pay

Maintenance II (M) 404 16.09 15.95 70 pts less

$5.50 more pay

Weighman (M) 459 12.35 17.87 15 pts less

$7.42 more pay

14. The parties agreed that eight job classes were red-circled: five male-dominated job classes and three female-dominated job classes. They were (with job code):

Planner II (004)

Public Consultations Coordinator (005)

Resource Recovery/Waste Reduction (013)

Planner II (004)

Cartographer II (023)

Key Switchboard Operator (024)

Design Engineer (055)

Recycling Specialist (057)

The parties found these positions to be overpaid relative to their obtained point value and placement above the wage line.

15. On August 7, 1990, the parties signed a Memorandum of Agreement which included the following:

The Pay Equity representatives of the parties noted above, in joint session on July 30th, 1990 determined and agreed that the comparisons contained herein satisfy the requirements of the Ontario Pay Equity Act (Bill 154) and do hereby agree to recommend without reservation their principals ratification of the Memorandum. ... a Pay Equity Plan based on this Memorandum will be posted within seven calendar days of ratification by both parties and that the timing of initial, and subsequent Pay Equity adjustments where required, shall be the subject of ongoing discussions between the Parties.

16. The Memorandum of Agreement was ratified by the membership of CUPE and passed by the Essex County Council in the fall of 1991. There was evidence from Mr. Shaban that the Memorandum of Agreement was posted in the County’s workplaces: however, this was disputed by CUPE. Ms McLean testified that she received nothing in writing from either the County or CUPE about the Memorandum of Agreement or a pay equity plan.

17. Salary adjustments commenced in the fall of 1991. In accordance with the parties’ intention to achieve internal equity, as a result of which they believed pay equity would also be achieved, both male and female job classes received their agreed-to adjustments. The increases in rates of pay were labelled “pay equity and internal equity” and were phased in using the County’s previous year’s one percent of payroll.

18. The parties agreed that the final adjustment date was January 1, 1994 which is a year earlier than the Act requires. However, on January 22, 1992, the County requested that the Union agree to a final adjustment date of January 1, 1995 as this was in accordance with the minimum requirements of the Act. CUPE responded, in a letter dated January 26, 1992, that although there was an agreement as to the schedule of the adjustments, they were prepared to discuss it further.

19. The County sent a letter dated January 28, 1992 to Review Services outlining the issue of the final adjustment date and asking for an opinion as to whether or not there was anything in the legislation that prevented the parties from renegotiating their earlier agreement. The response of Review Services was interpreted by the County to mean that the date agreed to in the Memorandum of Agreement was binding on the parties but that if the union agreed, the date of adjustment could be renegotiated so long as the requirements of the Act were met.

20. On March 10, 1992, the County submitted to CUPE a draft pay equity plan. In the letter accompanying the plan, Mr. Shaban writes:

Of significance is the payout schedule which has been set out in accordance with subsection 13(7) of the Pay Equity Act requiring adjustments to be fully implemented “not later than the seventh anniversary of the effective date”. As the effective date is January 1, 1988, the seventh anniversary date is January 1, 1995.

21. The draft pay equity plan was never signed by the parties, nor was it posted. CUPE did not agree to the change in the payment schedule and sought the assistance of Review Services to resolve the matter. Correspondence and meetings between the parties and a Review Officer took place over the next few months culminating in the Review Officer’s Notice of Decision of May 7, 1993.

22. The issue as stated by the Review Officer was: “Did the parties reach a binding agreement on the payout schedule for pay equity plans in these CUPE bargaining units?” She concluded that there was a binding agreement. The Review Officer refrained from issuing an order because the Government of Ontario was intending to enact amendments to the Act in Bill 102 that would have the effect of rendering an Order, on this issue, moot. Subsection 7.2 of Bill 102, which is now section 13 (7.2) of the Act, reads:

If the employees to whom the plan or agreement applies are represented by a bargaining agent, the employer is not bound by the schedule set out in it if the employer gives written notice to the bargaining agent that the employer wishes to enter into negotiations concerning a replacement schedule.

23. The parties continued meeting with the Review Officer to attempt to finalize a pay equity plan that could be posted. The Employer continued to make pay adjustments to employees in accordance with the Memorandum of Agreement from 1990 to 1993. The payout of 1% of the previous year’s payroll was made to all job classes, male and female, in accordance with the schedule of adjustments required to achieve internal equity and pay equity. No adjustments were made in 1994. Mr. Shaban testified that the County Council instructed the administration to cease payments of further adjustments until the matters before Review Services and, subsequently, the Tribunal were resolved.

24. The evidence is not clear as to exactly when the issue of whether the agreement/plan contravened the Act was raised, or by whom. It is clear that individual members of CUPE were unhappy with the plan and filed complaints under section 22 of the Act with Review Services which culminated with the Review Officer issuing an Order dated July 10, 1995.

The Jurisdiction of the Tribunal

25. In its application and in argument, counsel for the County submitted that the Review Officer lacked jurisdiction to issue her order under section 24(1). It is not necessary to comment on the Review Officer’s jurisdiction since this matter is now before the Tribunal. We support the notion that a proceeding before the Tribunal, as stated in Cybermedix Health Services (1990), 1 P.E.R. 41 and reaffirmed in other decisions, “... is not an appeal from a review officer’s order, but is rather, a hearing de novo on the issues in dispute”. What is substantively at issue before the Tribunal as outlined in Scarborough (No. 1) (1994), 5 P.E.R. 45 are:

1. the substantive issues the parties took to Review Services;

2. any additional issues the Review Officer may have raised and decided by order or referred to the Tribunal;

3. the issues the parties raised in their pleadings to the Tribunal; and

4. any agreements the parties may have reached subsequent to the close of the proceedings.

26. At the pre-hearing, the parties were unable to agree to the “issues in dispute” before the Tribunal. In our view, given the content of the Review Officer’s Order, the pleadings and the evidence before us, the issues in dispute are:

a) is there a pay equity plan between the parties;

b) if there is a plan, is it a deemed approved plan; and

c) if there is a deemed approved plan, is the plan reviewable and under what circumstances?

The Arguments

27. On the first question, “Is there a pay equity plan between the parties?”, the County submits that the Memorandum of Agreement signed August 7, 1990 formed the basis of and, in effect, became the Pay Equity Plan when it was ratified by the parties. Once the plan was ratified, the County started to make pay adjustments. The County submits that the Agreement is binding on the parties as the Review Officer stated in her Notice of Decision of May 7, 1993. In addition, when the County attempted to renegotiate the terms of the payment schedule, CUPE maintained that the Agreement was binding on the parties and this was confirmed by the Review Officer’s Notice of Decision of May 7, 1993.

28. CUPE’s position, as stated in its response to the County’s Application, is that

[t]he Union does not seek to argue that no binding Memorandum (of Agreement) was made. However, it was based on mistakes of understanding on the part of both parties and must, therefore be remedied so as to meet the standards of the Act.

29. On the next question, “Was the pay equity plan deemed approved?” Counsel for the County submits that the plan in the form of the Memorandum of Agreement, was ratified by the parties, posted and adjustments were begun. Counsel submits that given the language of section 14(5) of the Act, the plan is deemed approved.

30. Counsel for CUPE submits that there is no deemed approved plan because a Memorandum of Agreement is not a plan; it fails to comply with the Act and was not posted. Alternatively, counsel submits that if we find that there is a deemed approved plan, the Tribunal has clear authority to review it and to ensure that the plan does not violate the Act.

31. On the issue of whether a deemed approved plan can be challenged, Counsel for the County submitted that the parties negotiated a pay equity plan that complies with the Act. Once it was deemed approved, parties should have some confidence that the plan will not be opened up. Otherwise, there would never be a plan that could be deemed approved. Counsel submits there may be some imprecision in the steps taken to arrive at the plan, but that the parties, in good faith, went through the process set out in section 14 of the Act to arrive at the negotiated plan. The parties ratified the plan and adjustments were begun. Counsel submits that we should not intervene in a process which had been arrived at through mutual agreement.

32. Counsel for the County urges us to accept the dissenting view in Ontario Northland (1992) 3 P.E.R. 166, in that the Act places responsibility for bargaining in good faith and concluding a pay equity plan solely in the hands of the bargaining agent and the employer. Once executed, the plan is deemed approved by the Commission. The Act treats deemed approved plans as final and binding. Further, subsection 14(5) is a statutory bar to intervention by the Tribunal. He urges us not to accept the reasoning of the Tribunal in Ottawa Board of Education (28 May 1996) 0473-93; 0474-93; 0485-94; 0487-94 (P.E.H.T.) wherein it states that deemed approval is contingent upon “... not only the passage of time, but also with formal compliance with s. 13" of the Act. Counsel submits that if we accept this reasoning, there would never be a deemed approved plan.

33. Counsel for CUPE submits that in order to achieve the laudable goal of internal equity, the parties abandoned pay equity. She submits that when the parties were engaged in negotiating the agreement, the County paid no attention to the substance of the Act. CUPE was not aware that the Agreement it reached with the County was in violation of the Act and when it became aware, it tried to negotiate a change to the Agreement. Counsel submits that s. 7(2) of the Act prohibits employers and unions from negotiating an agreement that contravenes the Act. She asks us to affirm the Tribunal’s ruling in Ontario Northland, which was upheld by the Divisional Court (Re Ontario Northland Transportation Commission (1993), 4 P.E.R. 19), that parties can not contract out of the provisions of the Act.

34. Counsel for CUPE submits that the Agreement fails to comply with the provisions of the Act specifically in, but not limited to, the following areas:

∙ benefits were not used in the calculation of job rates as required by the Act and confirmed in the Tribunal decision in Lady Dunn General Hospital (1991), 2 P.E.R. 168

∙ both male and female job classes were used to draw the pay line

∙ the red-circling of 8 job classes does not conform with the provisions of the Act

∙ the Memorandum of Agreement fails to meet the requirements of s. 13 of the Act

∙ one percent of payroll went to both male and female job classes.

Counsel submits that the parties not only failed to comply with the Act but in effect, increased the gender wage gap. In essence, she argued that the parties failed to address systemic pay discrimination against women which is the very purpose of pay equity legislation.

Comments

35. The parties started out their pay equity process with the right intentions. They mutually agreed on Terms of Reference and on a comparison system to use, collected job data and evaluated the jobs. They arrived at a Memorandum of Agreement which, the County argues, constituted a binding pay equity plan. However, the Tribunal’s jurisprudence has evolved since its earlier rulings in Gloucester (No.1) (1991), 2 P.E.R. 52 and in Pembroke (1991), 2 P.E.R. 157. In its decision in Ottawa Board of Education the Tribunal said at para. 27:

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. 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.

36. As such, for a pay equity plan to be deemed approved, it must contain the major elements specified in s. 13 of the Act. A comparison of the parties’ Memorandum of Agreement with the requirements of s. 13 reveals several clear differences/omissions and some possible ones. These include:

∙ using the 1% of employer’s previous year’s payroll to make adjustments to all (male and female) job classes rather than just to the female dominated ones entitled to pay equity;

∙ not considering the impact of benefits in the job rate;

∙ failing to explain the exceptions allowed in s. 8, especially red circling;

∙ choosing a pay line approach that used only one job at each end of the scatter rather than all (or at least a representative sample of) the male jobs to create the line;

∙ in identifying job classes, the parties appear to have just adopted the jobs in the collective agreement without grouping them into job classes as envisaged in the definition section for “job classes”;

∙ failing to compare female job classes to male job classes; and

∙ not describing the comparison system used.

37. Since the Agreement does not comply with the major elements of s. 13, it is not a plan that could have been deemed approved. Section 7(1) of the Act requires employers to “... establish and maintain compensation practices that provide for pay equity...”. This Agreement clearly fails to establish pay equity.

38. Let us examine in more detail what went wrong after the parties signed their Terms of Reference. The first area, chronologically, is the determination of job classes. The evidence is that job classes from Schedule A of the 1990 - 1991 collective agreement were used by the parties as their basis for determining job classes for the purposes of the pay equity plan. However, the Act, in s. 1(1), defines job class to mean “those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates”. It is thus contemplated that similar positions will be grouped together to form a job class. It does not appear that the parties put their minds to this issue as the Agreement reveals several secretarial, clerical, accounting and labourer positions that might have been considered for consolidation into a fewer number of job classes.

39. It is then necessary to determine the gender character of each job class. Even though the Memorandum of Agreement makes no reference to the gender dominance of jobs, the parties did determine this as shown in exhibits. What is not made clear from the evidence is how the parties arrived at the gender dominance of the job class and whether there were any neutral ones. Section 1 of the Pay Equity Act says:

“female job class” means, except where there has been a decision that a job class is a male job class as described in clause (b) of the definition of “male job class”,

(a) a job class in which 60 per cent or more of the members are female,

(b) a job class that a review officer or the Hearings Tribunal decides is a female job class or a job class that the employer, with the agreement of the bargaining agent, if any, for the employees of the employer, decides is a female job class

Similarly, “male job class” means ... “a job class to which 70% or more of members are male”, and section 1(5) says:

[i]n deciding or agreeing whether a job class is a female job class or a male job class, regard shall be had to the historical incumbency of the job class, gender stereotypes of fields of work and such other criteria as may be prescribed by the regulations.

40. Although no mention of the gender character of the job classes were included in the Memorandum of Agreement, we can infer from the evidence that the parties arrived at the gender dominance of job classes pursuant to section 1(b) of the Act. However, when the parties revisit the grouping of positions into job classes, the gender determination should also be revisited. The evidence shows two positions (017 and 021), a Weighperson indicated as a female job class and a Weighman indicated as a male job class, which are scored the same and paid the same and therefore, if combined into one job class would be neutral in gender character. Similarly, there are two Relief Inspectors shown, one male and one female, that would again result in a neutral job class.

41. The evidence of the parties is that they did not include benefits in the calculation of job rates. Subsection 4(2) of the Act states that:

systemic gender discrimination in compensation shall be identified by undertaking comparisons between each female job class in an establishment and the male job classes in the establishment in terms of compensation and in terms of the value of the work performed.

Whereas compensation is defined in subsection 1(1) of the Act as:

all payments and benefits paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount.

42. The Tribunal has previously decided in Ontario Northland, Lady Dunn General Hospital and York Region Board of Education (Teachers) (No. 4) (1995), 6 P.E.R. 1 that job rate calculations must conform to the purpose and the scheme of the Act and that the job rate must be comprised of both a wage and a benefit component. It is inappropriate to use only salary/wage rates in the calculation of job rates unless the parties have considered and agreed that the benefit packages applying to both male and female jobs are of equal value. We find that the failure of the parties to consider benefits in the calculation of job rates is a breach of the requirements of the Act.

43. The evidence is that male and female job classes were identified by the parties but they agreed that they would not be used in the final development of the pay equity plan. There were no comparisons of female to male jobs. Section 6(1) of the Act says:

...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 ...

and Section 12 of the Act says:

... every employer to whom this Part applies shall, using a gender-neutral comparison system, compare the female job classes in each establishment of the employer with the male job classes in the same establishment to determine whether pay equity exists for each female job class.

44. The failure of the parties to directly compare female jobs to male jobs, either in a job-to-job fashion according to section 6(1) or job-to-male pay policy line according to Part III.1 (proportionate value method of comparison), violates these sections of the Act and represents another fundamental flaw in the proposed plan.

45. The evidence is that the parties agreed to a point factor comparison system and that they applied it to generate the point values that were to be representative of the job value. However, when it came to determining where jobs fit within their banding structure and what job rate should apply, given their negotiated pay policy, the parties, in many instances, abandoned the results obtained through the application of the point factor system, in favour of negotiated solutions.

46. The results of the evaluations of all jobs in the structure had no direct impact on the development of the negotiated wage line. The parties did not apply any mathematical formula to develop a ‘line-of-best-fit’ or ‘regression line’ based on the two relevant variables: point values and job rate. The negotiated pay line was not based on the point values and job rates of all jobs or of a group of jobs, for example, all male dominated job classes, but on connecting, by a straight line, the job rate of the lowest scored job with the highest paid job (but not necessarily the highest scored job); both of which were, by chance, male dominated. We do not accept that the resulting pay line is a male pay policy line for the purpose of proportional value.

47. When the parties came to applying the negotiated banding structure and pay policy, they rejected some of the results, selectively decided to ignore the points assigned to certain jobs and inexplicably paid some jobs higher than their results warranted. For example, position numbers 002, 007, 027, 028, 030, 039, 041, 042, 048, 050, 053, 055 and 056 were all assigned a job rate one band higher than their point values warranted. In our view, although the parties may have been well-intentioned in their objective of achieving both pay equity and internal equity, the result of their negotiation is, in our opinion, a compensation system which neither meets the requirements of the Act nor meets the stated objectives of achieving both internal equity and pay equity.

48. The parties agreed that eight job classes would be red-circled, of which five male-dominated job classes and three were female-dominated job classes. These positions were found by the parties to be overpaid relative to their value and placement above the wage line. Subsection 8(1)(d) of the Act which refers to red-circling says:

8(1) This Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of,

(d) the personnel practice known as red-circling, where, based on a gender-neutral re-evaluation process, the value of a position has been down graded and the compensation of the incumbent employee has been frozen or his or her increases in compensation have been curtailed until the compensation for the down-graded position is equivalent to or greater than the compensation to or greater than the compensation payable to the incumbent.

49. Although the parties have not argued for an allowable exclusion for red-circling under s. 8(1)(d), the parties have red-circled a number of positions in their Memorandum of Agreement. The parties have not provided us with a red-circling policy to guide this personnel practice.

50. If a difference in job rate between a female dominated job class as a male comparator is to be used as an allowable exclusion under s.8(1)(d), the employer must be able to show that a red-circling policy and practice was already in effect, that the red-circled positions have been down-graded, and the job rate for the incumbent has been either frozen or curtailed as a result. Furthermore, the excludable portion of the job rate must have been determined on the basis of the application of a gender-neutral re-evaluation process. That is to say, if a red-circled position is found to be a comparator for a female dominated job class, the employer would still have to show that the difference in job rate, in whole or in part, is attributable to a down-grading of the job (based on ‘skill’, ‘effort’, ‘responsibility’ and ‘working conditions’) and that a red-circling policy is in effect and actually guiding this personnel practice.

51. It is possible that as a result of the current evaluations and adopted pay policy, the parties may wish to introduced a red-circling policy and practice. This, however, cannot be used as an exclusion for the purpose of s.8(1)(d). Both male and female dominated job classes may be found to be “over-paid” given their evaluated values and pay rates relative to the adopted pay policy line. However, the difference between the current job rate for the position and the job rate indicated by the pay policy line cannot be used as an allowable exclusion under s.8(1)(d) even if a red-circling policy and practice has now been established.

52. The evidence is that the parties, in accordance with their intention to achieve internal equity along with pay equity, agreed that both male and female job classes would receive adjustments to their pay. These internal equity increases were also phased in using the County’s previous year’s one percent of payroll. Subsection 13(1) of the Act states that plans are prepared to provide for pay equity to the female job classes in the establishment. Subsection 13(4) then describes the minimum adjustments payable to provide for pay equity. In accordance with s. 13 of the Act, an employer must use the 1% of the previous year’s payroll to fund only pay equity adjustments.

53. Subsection 13(3) of the the Act describes the manner in which compensation to female job class or classes must be paid. It says, in part:

A pay equity plan shall provide that the female job class or classes that have, at any time during the implementation of the plan, the lowest job rate shall receive increases in rates of compensation under the plan that are greater than the increases under the plan for other female job classes ... .

Therefore, in calculating the schedule of pay equity adjustments, the female dominated job classes with lower job rates should receive more adjustment than the female job classes with higher job rates. The evidence does not indicated that this was done.

54. In our view, the failure of the parties to use their system in determining the wage rate and subsequently, the use of the 1% of payroll to cover both male and female job classes for pay equity and internal equity purposes, is not only a violation of s. 13 of the Act, but may have had the effect of widening the wage gap. At the very least, it slowed the achievement of pay equity.

55. In summation, we find that:

∙ there is no pay equity plan;

∙ there are numerous and fundamental errors in the development and implementation of the Memorandum of Agreement; and

∙ this plan violates subsection 4(2), section 6(1), subsection 8(1)(d), section 12 and subsection 13(1), (3) & (4) of the Act.

Order

56. We order the parties to immediately enter into negotiations to achieve a pay equity plan, within 90 calendar days of this decision, that complies with the Act. If either party believes that significant progress in the negotiations has not been made within 60 calendar days of this decision, the party shall contact Review Services to obtain their assistance.

57. We are not prepared to order compliance with the Review Officer’s Order because we recognize that with the passage of time, some elements of the Order may no longer be applicable. However, we direct the parties to use the Review Officer’s Order and our comments in this decision as a guideline when negotiating a new pay equity plan which will comply with the Act.

Dated at Toronto this day of 1996:

Mary-Woo Sims

Panel Chair

Charles Taccone

Employer Member

Bruce Budd

Employee Member