PAY EQUITY HEARINGS TRIBUNAL
733-01 Renfrew County and District Health Unit, Applicant, v. Ontario Public Service
Employees Union, Respondent
Before: Mary Ellen Cummings, Chair and Members Pauline R. Seville and Yvonne Blaszczyk
Cite as: Renfrew County and District Health Unit (No. 3) (March 27, 2002) 0733-01 (P.E.H.T.)
Appearances: J.D. Sharp for the Applicant; Victoria Reaume for the Respondent
DECISION OF THE TRIBUNAL, MARCH 27, 2002
The Renfrew County and District Health Unit (“the Employer”) has brought an Application in respect of a Review Officer’s Order, dated December 07, 2001. At issue between the parties is how to calculate the 1% of payroll that is available for making pay equity adjustments in the years 1990 to 1997. The second issue the Employer presented is how to allocate, amongst members of the bargaining unit, pay equity adjustments if the amounts required to achieve pay equity exceed 1% of payroll in each year. The Employer concedes that as a public sector employer, it is obliged to have achieved pay equity by January 1, 1998, in accordance with section 13(7) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”).
The parties’ dilemmas are exacerbated by the passage of time. On September 10, 2001, a Review Officer ordered a pay equity plan, with an effective date of January 1, 1990 for job classes compared using the job to job method and January 1, 1994 for job classes who received an adjustment through the proportional value method of comparison. The parties face the calculation of retroactive adjustments over a 13 year period. It was also raised during the hearing that the Employer has yet to implement the pay equity adjusted rates ordered in the September 10, 2001 plan. The third issue raised by the Employer is its belief that it has already allocated 1% of its total payroll in each year, dating back to 1990, to make the pay equity adjustments required in other bargaining units and in its non-union group. The Employer sought guidance from the Tribunal about what it is required to do in such circumstances.
The Ontario Public Service Employees’ Union (OPSEU) does not accept, without proof, that the Employer has devoted 1% of its payroll in each year to paying pay equity adjustments to other groups. And in any event, counsel submitted, it is not available to any employer to avoid or delay its obligations under the Act on the basis that it has paid out money to other groups. However, OPSEU is most anxious to bring this matter to an end, and was prepared to have the Tribunal make an order that would finish this litigation and facilitate the payment of retroactive adjustments to its members and ensure that the pay equity adjusted rates are implemented as soon as possible.
Accepting, without finding, that the Employer has in fact, devoted 1% of its total payroll in each year does not excuse the Employer from making the required adjustments of this pay equity plan in accordance with section 13 to this bargaining unit. The language of subsection 13(4) suggests that an employer is required to consider all of its pay equity plans when calculating what adjustments are required. There is a real potential for unfairness if an employer were permitted, either on account of advertent choice or inadvertent error, to favour the pay equity claims of one group over another. In the interests of bringing some necessary finality to these parties’ long road to the implementation of pay equity, the Tribunal determined that the Employer should be required to devote 1% of the payroll of this bargaining unit to create a pool from which pay equity adjustments can be paid in the years 1990 to 1997. This is a pragmatic approach to interpreting subsections 13(4), (5), and (6), but in the circumstances one that is appropriate.
After having heard and considered the submissions of counsel the Tribunal makes the following detailed directions and orders to assist the parties to meet their joint compliance obligations as set out in section 7 of the Act:
a) The Employer will implement the pay equity adjusted rates of pay required in the September 10, 2001 pay equity plan by no later than the pay period ending March 23, 2002.
b) For the purposes of calculating retroactive payments in the period from January 1, 1990 to December 31, 1997, the Employer will apply the following definitions and make the following calculations:
(i) “payroll” is the aggregate of wages earned by all members of the bargaining unit in each taxation year, as disclosed in Box 14 of their Revenue Canada T4 Forms;
(ii) “employees” is members of the bargaining unit entitled by the pay equity plan to receive an adjustment;
(iii) “hours paid” is to be defined in accordance with the relevant provisions in the parties’ collective agreement;
(iv) To calculate how rates of pay for female job classes are to be adjusted and to calculate retroactivity in each year, the Employer will multiply “employees” by “hours paid” then divide that figure by 1% of “payroll” to calculate the “pay equity adjustment”;
(v) In each year, the hourly rate of pay for each female job class will be increased by the amount of the “pay equity adjustment” until such time as the rate of pay for the job class equals the pay equity adjusted rate in the parties’ pay equity plan or January 1, 1998, whichever is sooner, and;
(vi) In each year, “employees” will receive a “pay equity adjustment” for all “hours paid”.
c) As of January 1, 1998 the pay equity adjusted rate must be paid to the female job classes. Consequently, the calculation of retroactivity from January 1, 1998 onwards assumes that the pay equity adjusted rate has attached to the female job classes. There is no limit on the amount of money the Employer must devote to paying retroactivity in the period following January 1, 1998.
d) All retroactivity payments will be calculated and paid out to employees and former employees in the bargaining unit (who have not already received pay equity adjustments) by June 6, 2002.
e) The Employer is required to ensure that the wage gap does not widen during implementation of pay equity. In determining the pay equity adjusted rate and calculating retroactivity payments, the Employer must take into account any increases in the male job class rates over the intervening 12 years.
f) The Employer will provide to OPSEU the methodology in support of its calculation of the retroactivity payments and a schedule of adjustments, setting out the amount paid out to each employee or former employee.
g) Having regard to the parties’ agreement, interest is to be paid on retroactive payments, calculated in accordance with the formula set out in the Courts of Justice Act, calculated on a simple basis.
- Having regard to the Tribunal’s conclusions and directions set out above, the Review Officer’s Order of December 7, 2001 is revoked.
Dated at Toronto, this 27th day of March 2002.
Mary Ellen Cummings, Chair
Pauline R. Seville, Member
Yvonne Blaszczyk, Member