Group of Employees v. Parry Sound District General Hospital, 1996 CanLII 8067

PAY EQUITY HEARING TRIBUNAL

0496-94 Group of Employees, Applicants v. Parry Sound District General Hospital and Ontario Public Service Employees Union (OPSEU), Local 320, Respondents

Before: Katherine Laird, Vice-Chair and Members Margaret Kvetan and Bruce Budd

Appearances: Michelle Sherwood for the Applicants; Peter Chauvin for the Respondent Hospital; Harriet Simand for the Respondent Union.

Cite As: Parry Sound District General Hospital (No. 2) (11 July 1996); 0496-94; (P.E.H.T.)

DECISION OF THE TRIBUNAL

Introduction

1. The initial application in this matter was filed with the Pay Equity Hearings Tribunal on April 7, 1994. The applicants are Housekeeping Attendants and Junior Dietary Attendants at the Parry Sound District General Hospital (the "Hospital"). The Ontario Public Service Employees Union (the "Union") is named as a respondent in addition to the Hospital.

2. Following a pre-hearing conference scheduled by the Tribunal, an amended application was filed on behalf of the applicants by Pay Equity Advocacy and Legal Services (PEALS). The revised application, dated October 27, 1994, set out the facts relied upon and the issues in dispute. The amendments clarified that the applicants are seeking a pay equity adjustment for the period from January 1992 to January 1995 to bring their wages up to the level received by Laundry Attendants during this period under a revised pay equity plan posted in February 1993.

3. The Hospital responded to the applicants' new pleadings by bringing a motion for dismissal at the beginning of the hearing on December 7, 1994. The motion challenged the jurisdiction of the Tribunal, the timeliness of the application and the standing of the applicants.

4. In an interim decision, Parry Sound District General Hospital, (29 May 1995); 0496-94 (P.E.H.T.), the Tribunal determined that it did have jurisdiction to hear the application and that the application was not untimely. On the question of standing, the Tribunal held that the appropriate threshold issue to be addressed was whether or not the applicants had raised a prima facie case in the pleadings. The issue of standing was found to be one element in establishing a prima facie case.

5. The interim decision discusses the confusing factual background to this application in considerable detail and identifies two key allegations emerging from the revised application:

(a) that the 1993 employer-initiated amendments to the pay equity plan resulted in gender-bias in failing to consider the applicants' job classes to be female-dominated;

(b) that the 1993 employer-initiated amendments to the pay equity plan constituted changed circumstances within the meaning of s. 22(2)(b) of the Act, making the plan no longer appropriate for the applicants' job classes.

The panel found that neither allegation was sufficiently particularized in either the initial or the revised application. The applicants were required to file further particulars in respect of these two allegations, with the respondents having an opportunity to respond.

6. Further pleadings were filed by PEALS on behalf of the applicants on June 28, 1995. The submission clarified that both the Hospital and the Union were alleged to have contravened the legislative requirement to maintain pay equity by agreeing to "arbitrarily redesignate" the Housekeeping and Junior Dietary job classes as gender-neutral. The new pleadings also clarified that the changed circumstances relied upon were the certification of OPSEU as bargaining agent and the subsequent posting of the revised pay equity plan in February 1993.

7. In response, both the Hospital and OPSEU filed submissions urging that the application be dismissed for failure to establish a prima facie case in respect of the two allegations.

8. The Hospital argued that the applicants had failed to plead any facts which, if proven would establish either a contravention of the Act under s. 22(1) or changed circumstances affecting the applicants’ job classes under s. 22(2)(b). Dealing first of all with the issue of the gender classification, the Hospital pointed out that only one of the applicants’ job classes had been re-classified as gender-neutral: the merged Housekeeping job class. Contrary to the applicants’ pleadings, the Junior Dietary positions continued to be classified as female-dominated, but were not considered by the negotiating parties to be entitled to pay equity increases in addition to the adjustments received pursuant to the initial employer plan. The Hospital noted that the merger of the male and female Housekeeping job classes was negotiated in 1992 as part of the first collective agreement, and reflected the fact that under the pre-existing pay equity plan, the two job classes had achieved the same rate of pay.

9. With respect to historical incumbency in the Housekeeping job class, the Hospital cited a female representation rate of 53% during the period in which the amendments were negotiated (February 1993 to September 1993), which rate was also cited by the applicants. On the issue of gender stereotyping, the Hospital relied on the undisputed fact that the former male Housekeeping jobs had heavy cleaning duties such as are associated with janitorial or custodian positions. Finally, the Hospital submitted that the applicants had pleaded no particulars which would establish a basis for a finding that the pay equity plan was not appropriate for their job classes.

10. In its submission, OPSEU stated that re-classification of the merged Housekeeping job class was the result of union-management negotiations and that the Union had raised historical incumbency and gender stereotyping in the course of the discussions as required by the legislation. Although the Union acknowledged that the parties were free to exceed the requirements of the Act and declare a job class female when less than 60% of the incumbents were women, there could be no finding that the Act had been contravened when the parties had met the minimum requirements of the Act.

11. On the question of changed circumstances, the Union agreed that certification was a sufficient trigger for s. 22(2)(b), but took the position that there were no facts in the pleadings which would establish that certification or the subsequent plan amendments had affected the appropriateness of the plan for the applicants’ job classes. The amendments had “altered the compensation for another job class [Laundry Attendants], which has no bearing on the job duties or responsibilities of the Applicants” (paragraph 31, OPSEU submission).

12. On January 25, 1996, the hearing was re-convened to hear oral argument on the renewed motion to dismiss. The applicants were for the first time represented by Michelle Sherwood, counsel at PEALS. Ms. Sherwood, in her oral presentation, raised an issue which had not previously been explicitly discussed in written or oral submissions. Ms. Sherwood argued that certification and the subsequent merger of the Housekeeping male and female job classes in the first collective agreement constituted changed circumstances within the meaning of s.22(2)(b) because the effect was to remove the male comparator for both the former female Housekeeping job class and the Junior Dietary Attendants. In merging the male and female Housekeeping job classes, the respondents were said to have deprived the applicants of a comparator (the male Housekeeping job class) and to have consequently deprived them of the on-going benefit of the legislation.

13. Counsel for the applicants focussed her submissions on the responsibility of the Hospital and OPSEU, under s. 7(1)and (2) of the Act, to maintain compensation practices that provide for pay equity for all job classes. She submitted that the Hospital acted appropriately in reviewing the gender classification of the Laundry Attendant job class, but had the responsibility, together with the Union, of going further and reviewing gender classification and possible comparators for all potentially female job classes. While acknowledging that the legislation gave management and the union an area of discretion in negotiating a pay equity plan and amendments, she urged the panel to find that the facts pleaded raised an arguable case that the plan was no longer appropriate and should be reviewed by the Tribunal.

Standard of Review

14. An employee, whether or not represented by a union, can apply to the Tribunal for a review of the substance of a pay equity plan in two circumstances: if it is alleged that the plan contravenes the Act (s. 22(1)); or if it is alleged that changed circumstances in the establishment have made the plan not appropriate for the applicant’s female job class (s. 22(2)(b)). Both allegations are raised in this case.

15. The parties were asked to address the issue of the standard of review which should be applied by the Tribunal in reviewing a pay equity plan which has “deemed approved” status. This question was considered by the Tribunal in the recent decision Ottawa Board of Education (28 May 1996), 0473-93; 0474-93; 0485-94; 0487-94 (P.E.H.T.) in paragraphs 44 to 46:

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 . . . .

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 . . . .

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. We adopt this approach. Correctness is the appropriate standard to apply in reviewing whether or not a plan contravenes a statutory minimum standard; reasonableness is the appropriate standard to apply in considering whether or not a plan contravenes the legislation in an area where the parties are given discretion by the statutory language.

17. We also note the comments of the panel in the Ottawa Board of Education decision on the question of prima facie case:

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.

This is the question to be determined in this case: do the pleadings establish a prima facie case?

Issues To Be Decided

18. The Tribunal must determine if the pleadings have established a prima facie case in respect of :

(a) the s. 22(1) allegation that the Hospital and the Union have contravened the legislation in failing to maintain the applicants’ job classes as female in the revised pay equity plan;

(b) the s. 22(2)(b) allegation that certification and the subsequent amendments to the plan constituted changed circumstances in the establishment making the plan not appropriate for the applicants’ female job classes.

Section 22(1): Have the Applicants Established a Prima Facie Case That There Has Been Contravention of the Act?

19. The applicants have alleged that the respondents have contravened the legislation by arbitrarily agreeing to re-designate their job classes as gender-neutral. To support a prima facie case on this point, the pleadings must set out facts which, if proven, would establish that their job classes should have been considered female-dominated to be in compliance with the legislation, and were not. However, in the case of the Junior Dietary Attendants, it appears that the application wrongly assumes that the positions were re-classified as gender-neutral. In fact, all parties are agreed that the Junior Dietary job class should have continued to be considered female-dominated; the Hospital and OPSEU maintain that this was always the case. The Hospital’s submission clarified that a further pay equity adjustment was not negotiated for the Junior Dietary Attendants, not because of a change in gender classification, but because the negotiating parties were of the view that pay equity had been achieved for this job class under the previous plan. In the result, the applicants have not established a factual basis in the pleadings for the allegation that the Junior Dietary positions were arbitrarily and improperly designated as gender-neutral. Accordingly, the application with respect to this issue is dismissed for failure to establish a prima facie case.

20. Turning to the gender classification of the Housekeeping positions, the respondents acknowledged that, following discussions in which historical incumbency and gender stereotyping were considered, it was agreed that the new merged job class should be considered gender-neutral. The Union was somewhat equivocal in its remarks on this point, but it is clear from its actions that by September 1993, it had agreed to consider the gender classification of the Housekeeping job class to be neutral. This agreement was made in the context of an historical incumbency rate that did not reach the 60% threshold in s.1(1) until, at the earliest, an unspecified time in 1994.

21. What is the appropriate standard for the Tribunal to apply in reviewing the plan amendments agreed to by the Hospital and the Union in 1993? The issue in dispute - the gender classification of a job class - is an area in which the negotiating parties may or may not have discretion depending on the particular facts of the case. On our facts, given the female incumbency rate of less than 60% during the relevant period, and the inclusion of both stereotypically male and female job responsibilities in the merged job class, the gender classification of the Housekeeping positions was an area in which the negotiating parties had discretion. Accordingly, the appropriate standard of review is reasonableness. Deference should be afforded to the agreement of the parties if they have exercised their discretion in a reasonable manner.

22. Although the negotiating parties had the option of deciding that the merged Housekeeping job class should be considered female-dominated, and even though the applicants might be able to bring forward evidence to establish the validity of such an approach, it would not be possible for the applicants to establish on the facts pleaded that the failure to do so was unreasonable and amounted to a contravention of the Act. The gender classification of the Housekeeping job class was an area in which more than one option was open to the negotiating parties, more than one option was reasonable, and more than one option could be considered to be in compliance with the statute. Although other choices were possible, there is nothing in the pleadings which, if proven, would establish that the agreement on this point was arbitrary or unreasonable. Accordingly, the application is dismissed with respect to this issue for failure to establish a prima facie case.

Section 22(2)(b): Have the Applicants Established a Prima Facie Case That There Has Been A Change of Circumstances Rendering the Plan Not Appropriate for Their Female Job Classes?

23. To establish a prima facie case under s. 22(2) (b), the applicants must plead facts which, if proven, would establish each element of the provision, specifically that:

• there are changed circumstances in the establishment;

• the changed circumstances have resulted in the plan not being appropriate for a job class;

• the job class for which the plan is not appropriate is a female job class; and

• the applicants belong to that female job class.

24. With respect to the first element of s. 22(2)(b), the applicants stated in their June 28, 1995 submission that they were relying on the certification of OPSEU in 1991 and the subsequent posting of a revised plan in 1993 as constituting “changed circumstances in the establishment”. The Tribunal has determined in previous decisions that certification of a bargaining unit will constitute changed circumstances within the meaning of s. 22(2)(b) if the pre-certification pay equity plan includes both bargaining unit and non-bargaining unit employees: St Joseph’s Villa (1993), 4 P.E.R. 33; Ottawa Board of Education, supra. Where a non-union pay equity plan has been found to be not appropriate for bargaining unit employees because of the inclusion of non-bargaining unit employees, the Tribunal has ordered the plan to be split. In our case, however, there is no need for an order splitting the plan; the employer posted a revised pay equity plan for bargaining unit employees in February 1993. The applicants cannot rely on the fact of certification alone to establish that the February 1993 plan is not appropriate for their job classes.

25. The applicants’ June 28, 1995 submission does not give particulars in respect of the secondary claim that the posting of the revised plan constituted changed circumstances in the establishment. However, it is clear from the pleadings as a whole that the crux of the applicants’ complaint is that their job classes were no longer considered female in the 1993 plan, and that consequently neither job class received the pay equity increase awarded to Laundry Attendants. (As is discussed in the interim decision, under the 1993 amendments to the plan, the merged Laundry Attendant job class created under the collective agreement was considered to be female-dominated, and was given a new comparator (Groundskeeper) and an additional pay equity increase.) This argument was captured in Ms. Sherwood’s oral submissions as the “loss of the male comparator” issue. For the first time, it became clear that the applicants’ position was that it was the merger of the Housekeeping job classes that constituted “changed circumstances in the establishment” under s. 22(2)(b).

26. The respondents both took the position that the issue of the loss of the male comparator as a “changed circumstance” was not raised in the pleadings and was not properly before the Tribunal. Although in retrospect, some foundation for the argument could be seen in the amended application, the male comparator issue was not explicitly identified by either of the previous counsel representing the applicants and was not addressed by any of the parties in earlier oral or written submissions. In view of the requirement in Rule 1 of the Tribunal’s Rules of Practice that issues be expressly pleaded, it may well be inappropriate to allow this issue to be raised at this stage after the applicants have had three opportunities to state their case in written pleadings.

27. In any event, we find it unnecessary to rule on the timeliness of the applicants’ submission. In our view, the merger of the two Housekeeping job classes in the first collective agreement, and in the subsequent amendments to the pay equity plan, cannot constitute “changed circumstances in the establishment”. The merger was initially negotiated by the Hospital and OPSEU as part of the process of incorporating the pre-existing pay equity plan into the collective agreement. The agreement in turn was reflected in the revisions to the pay equity plan which the employer posted in February 1993, and to which OPSEU subsequently agreed. Negotiated pay equity amendments are not events in the workplace and cannot come within the meaning of “changed circumstances in the establishment”. By way of contrast, restructuring of the workplace or the elimination of jobs would likely qualify as “changed circumstances in the establishment”.

28. If applicants before the Tribunal could characterize negotiated revisions to the pay equity plan as “changed circumstances in the establishment”, and rely on the mere fact of revision as the foundation for a challenge of the substance of those revisions, s. 22(1) of the Act would be redundant as a means of accessing a plan review by the Tribunal. It would make no sense to legislate a provision allowing a deemed approved plan to be challenged for contravention of the statute, and then in the following subsection to provide that a deemed approved plan can be challenged each time management and the union negotiate revisions. Moreover, such a result would lead to an unfair imbalance in s. 22(2)(b), given that only employees and bargaining agents can file complaints under this subsection, and not employers.

29. Most significantly, the interpretation urged by the applicants would have the effect of discouraging employers and, in organized workplaces, bargaining agents from fulfilling their on-going responsibility to maintain pay equity by revising the plan where appropriate. We accept the submission of counsel for the applicants that management and bargaining agents have an on-going responsibility for pay equity maintenance under s. 7. This includes the responsibility to regularly review job classes, to consider the impact of changes to job duties and gender dominance, to identify new comparators where appropriate, and to agree upon any necessary pay equity adjustments. However, neither the negotiating parties nor the represented employees have the right to ask the Tribunal to review the negotiated plan revisions unless their application can establish a prima facie case that the amended plan contravenes the legislation.

30. This is, in a nutshell, the reason why the present application cannot proceed before the Tribunal: although the employee applicants are not satisfied with the efforts of the Hospital and OPSEU to maintain pay equity in their workplace, they have failed to plead a case which would establish that management and the union are in contravention of their maintenance responsibilities under the legislation. It is not disputed that the Hospital and OPSEU actively discussed and negotiated the treatment of the applicants’ job classes in light of their on-going responsibilities under the Act. However, although other choices would have been possible, and better choices in the applicants’ view, no facts have been pleaded which would establish that the determinations made by management and the union were unreasonable. The Tribunal will not lightly undertake a review of a negotiated pay equity plan, or an otherwise deemed approved plan, in the absence of pleadings which set out a possible factual basis for a finding that the Act has been contravened.

31. For all of the above reasons, the application is dismissed.

Dated at Toronto this 11th day of July, 1996:

Katherine Laird Vice-Chair

Margaret Kvetan Member

Bruce Budd Member