PAY EQUITY HEARINGS TRIBUNAL

PE 0635-97 The Regional Municipality of Niagara, Applicant v. CUPE, Local 1287, Barbara Morellato and Nansi Nikiforuk, Respondents

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

Appearances: Angela Rae for the Applicant; John Elder for the Respondent, CUPE, Local 1287; Barbara Morellato and Nansi Nikiforuk for themselves

Cite As: Niagara (13 March 1998) 0635-97 (P.E.H.T.)

INTERIM DECISION OF THE TRIBUNAL, MARCH 13, 1998

Introduction

[1]. The application before the Tribunal is brought by the Regional Municipality of Niagara (“Niagara”) and seeks revocation of a Review Officer Order dated January 14, 1997. The Order was issued in respect of a complaint to Review Services brought by two employees, Barbara Morellato and Nansi Nikiforuk (“the individual employees”) who were members of a bargaining unit represented by CUPE. The Review Officer found that the pay equity plan agreed to by Niagara and CUPE was no longer valid due to the fact that the male comparator job class for the positions held by the individual employees was vacant, and had been vacant, for more than three years. The Officer found this to constitute a change of circumstances under s. 22(2)(b) of the Pay Equity Act (“Act”), and the parties were ordered to apply the proportional value method to achieve pay equity for the job classes formerly compared to the vacant male job class.

[2]. Ms Morellato and Ms Nikiforuk have filed a response to Niagara’s application to the Tribunal. The Canadian Union of Public Employees, Local 1287 (“CUPE”), bargaining agent for the individual employees, has also responded to the employer’s application. The two responses raise identical issues in respect of Niagara’s application. By motion heard on February 16, 1998, counsel for Niagara argued that the individual employees, as members of a bargaining unit, did not have standing before the Tribunal in respect of the present application. Ms Morellato and Ms Nikiforuk opposed that motion. CUPE did not support the employer’s motion, and did not oppose the individual employees having standing. This interim decision deals with the question of whether or not Ms Morellato and Ms Nikiforuk are entitled to participate in the proceedings before the Tribunal.

Submissions of Niagara

[3]. Counsel submitted that the existing jurisprudence did not support a right of standing for individual employees where the position of the employees is fully represented by the position of the bargaining agent. The individual employees would not be of assistance to the Tribunal: they did not represent a distinct point of view or an otherwise unrepresented public interest and their participation would double the number of parties, and necessarily lead to a less efficient process. Counsel also noted that, if the individual employees were granted full standing, it could lead to mischief in other cases, if employees launched complaints to Review Services as a means of forcing union action, with the result that employers would be required to face numerous parties at the Tribunal.

Submissions of CUPE

[4]. The union was not opposed to the individual employees having standing before the Tribunal in the particular circumstances of this case. Counsel noted that the individual employees had exercised a statutory right to bring a complaint to Review Services under s. 22(2)(b) and s. 7 of the Act, and argued that, as parties to the original application, Ms Morellato and Ms Nikiforuk should have standing before the Tribunal. He submitted that the two employees would have had status to request a hearing before the Tribunal under s. 24(6) if they had been dissatisfied with the Review Officer Order, and that it made sense to allow them the right to participate as respondents to the employer’s application. Even though the position of the two employees did not differ from that of the union, he urged us to respect the employees’ wish to speak for themselves, and not to be overly concerned about the potential impact of our decision on other cases involving different circumstances.

Submissions of the Employees

[5]. The individual employees relied on two cases of the Tribunal in arguing that they were entitled to standing in the employer’s application: Melitta Canada Inc., (1994) 5 P.E.R.101, at para. 6-7, and Hamilton Civic Hospitals (No. 1), (1995) 6 P.E.R. 86, at para. 15-16. The Melitta decision held that an anonymous group of employees could bring an application before the Tribunal under s. 24(6) of the Act seeking enforcement of a Review Services Order in circumstances where the Order was made in respect of an unsettled complaint of the employees. In Hamilton Civic Hospital, the Melitta decision was cited with approval as authority for the right of a complainant to a hearing before the Tribunal under s. 24(6) in respect of an unsettled complaint which led to a Review Officer order. The individual employees submitted that s. 24(6) allowed a complainant before Review Services to have standing to request a hearing, and should also be interpreted to support their right of standing in respect of the employer’s application before the Tribunal.

Analysis

[6]. In the present case, the individual employees are not applicants before the Tribunal; rather, they are responding to the employer’s application. While the jurisprudence which they have relied upon supports their submission that they have the right to bring their own application for enforcement, it does not speak to their right to participate as respondents to an employer application to have the Order revoked. As individual employees and members of a bargaining unit, Ms Morellato and Ms Nikiforuk have no statutory right to participate as respondents to the application of their employer, even in the present circumstances where that application arises out of a Review Officer Order in respect of their complaint to Review Services. In considering whether it is appropriate to give party status to these two employees, the Tribunal must consider:

(a) if the employees have a legal interest in the proceeding that is distinct from that of their union;

(b) whether their participation would be of assistance to the Tribunal;

(c) whether their participation would prejudice the other parties by broadening the issues, and adding to the length and cost of the proceedings.

[7]. The position of the union, as outlined in the pleadings, is identical to that of the individual employees. The legal interests of the employees and the union are the same, although clearly the employees are differently placed in relation to those legal interests, given that they are potential beneficiaries of the sought-after amendments to the pay equity plan. In these circumstances, where the legal interests of the union and employees are the same, and the issues to be argued, as set out in the pleadings, are identical, the participation of the individual employees would not be of assistance to the Tribunal. Further, although their participation would not broaden the issues, it could be expected to unnecessarily add to the length and cost of the proceedings. In the result, we decline to exercise our discretion to allow Ms Morellato and Ms Nikiforuk to be added as respondents to the present application. We expect that CUPE will take all reasonable steps to ensure that these two employees are kept apprised of the progress of the proceedings. We note that it is always open to them to attend our hearings.

[8]. Further, it was and remains open to Ms Morellato and Ms Nikiforuk to request a hearing before the Tribunal, under s. 24(6), seeking enforcement of the Review Officer Order. As complainants to Review Services, they have the right to request a hearing with respect to an Order arising out of their complaint, but such an application for enforcement would be joined but secondary to the present application for revocation of the Order. The individual employees would be limited in their participation to issues related to enforcement and in fact such an application at this time might serve little practical purpose. If the employer's application is successful, an enforcement application will necessarily fail. If the employer's application is unsuccessful, the Review Officer Order will become part of the Tribunal’s Order and will be enforceable as such.

Dated at Toronto this 13th day of March, 1998:

“Kathy Laird”

Kathy Laird, Vice Chair

“Bruce Budd”

Bruce Budd, Member

“Margaret Kvetan”

Margaret Kvetan, Member