Pay Equity Hearings Tribunal
PE-0686-99 Kensington Village, Applicant v. Service Employees International Union, Local 220 and Diane McGuffin, Respondents
Appearances: Michael Allen for the Applicant; Mary Cornish for the Respondent Union
Before: Katherine Laird, Vice-Chair; Margaret Kvetan and Pauline R. Seville, Members
Cite as: Kensington Village
DECISION OF THE TRIBUNAL, OCTOBER 13, 2000
INTRODUCTION
1Kensington Village has applied to the Tribunal for an order revoking a Review Officer’s Order (the “Order”), dated April 1, 1999. The Order required Kensington Village to implement forthwith its pay equity plan with the Service Employees International Union, Local 220 (the "SEIU") by "paying any outstanding pay equity adjustments and any such monies as are required to maintain pay equity retroactive to January 1, 1994".
2The April 1999 Order resulted from an application to the Pay Equity Commission, Review Services (“Review Services”) by the Respondent Diane McGuffin ("McGuffin"), an employee of Kensington Village and a member of the respondent union. McGuffin's application stated that Kensington Village had not made the pay equity adjustments required by its plan because it had not received funding to cover the adjustments. McGuffin took the position that the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (the “Act”) does not allow an employer to delay or avoid paying adjustments under a pay equity plan because of an alleged shortfall in funding.
3The SEIU responded to Kensington Village's application to the Tribunal, seeking, among other things, a dismissal of the application without a hearing on the basis that the application disclosed no prima facie case, or in the alternative, further and better particulars.
4Kensington Village filed an amended application in which it included detailed statements of fact and added new alternative arguments. The SEIU responded by seeking, among other things, an order striking certain paragraphs in the amended application on the basis that the issues raised therein were not properly before the Tribunal.
5At a pre-hearing conference before the Tribunal, the parties agreed that the following should be adjudicated as preliminary issues:
- whether Kensington Village can raise issues in its application which were not raised, or dealt with, at Review Services;
- whether lack of funding can be a defense to an employer’s obligation to comply with a pay equity plan or the Act.
Each of these issues is dealt with below.
Can Kensington Village raise issues in its application to the Tribunal which were not raised or dealt with at Review Services?
6In its amended pleadings, Kensington Village took the position, as an alternative argument, that the pay equity plan with the SEIU was invalid for several reasons:
- it was negotiated without proper reference to a proxy establishment as required by subsection 2(5) of O. Reg.396/93;
- it included language which required that adjustments be paid only when funding was received from the government;
- it was negotiated in a workplace which has had sufficient male job classes to enable a proportional value analysis;
- because proxy pay equity adjustments have been given to employees in male job classes;
- because the group bargaining process which produced the plan is contrary to the Act.
7The SEIU maintains that these issues are not properly before the Tribunal. In its response to the amended application, the Union outlines its substantive position on the validity of the plan as follows:
The Respondent and the applicant were permitted by law to negotiate a plan using the proxy method of comparison. All steps necessary to obtain the Order directing the employer to use the proxy method of comparison were followed and complied with by the employer. The Union submits that the proxy pay equity plan at Kensington Retirement Community is a deemed approved plan which is binding on the parties.
8The preliminary question to be decided is whether the validity of the plan is an issue properly before the Tribunal in the present application. It was not disputed that the validity of the plan was not raised or discussed at Review Services. This issue was first brought forward in the amended pleadings filed with the Tribunal five months after the initial application was filed.
9The Tribunal held, in Scarborough No.1 (1994), 5 P.E