Pay equity hearings tribunal
0749-03 Pay Equity Office, Applicant v Magellan Aerospace Corporation, Fleet Industries Ltd., International Association for Machinists & Aerospace Workers, Lodge 939, and Kathy Crane Respondents
Before: Mary Ellen Cummings, Chair; Pauline Seville and Diane Rose, Members
Cite as: Magellan Aerospace Corporation, (Pay Equity Office) (March 17, 2003) 0749-03 (P.E.H.T.)
DECISION OF THE TRIBUNAL, MARCH 17, 2003
This file is a Referral by the Pay Equity Office (“the Office”), brought pursuant to subsection 24(5) of the Pay Equity Act R.S.O. 1990, c. P-7 (“the Act”). The Office alleges that Magellan Aerospace Corporation, Fleet Industries Ltd. (“the Employer”) and the International Association of Machinists and Aerospace Workers, Lodge 939 (“the Union”) have not complied with the Order of a Review Officer dated July 8, 2002.
The Order required the Employer and the Union to post the pay equity plan that had been developed by the Officer. The Order further required the Employer and the Union to adjust the job rates of the female job classes to those of their male comparators; identify the required retroactive adjustments; negotiate a pay out schedule and make retroactive payments within 45 days of the date of the Order.
The Office is of the opinion that the Order had not been complied with and asks the Tribunal to do the following:
(a) order the Employer and the Union to comply with the Order;
(b) order the Employer to pay interest on the amounts required to be paid under the Order;
(c) declare that the Employer and the Union have contravened the Act.
(d) direct such further and other relief as the Applicant requests and the Tribunal sees fit to grant.
The Office provided a Statement of Service, indicating that it had served the Employer and the Union by regular mail on February 13, 2003. The effective date of service, in accordance with the Tribunal’s Rules of Practice (Rule 26) is February 19, 2003. A response should have been served on the other parties on March 3, 2003 (Rule 19) and filed with the Tribunal by March 10, 2003. No response has been filed by the Employer and the Union, nor has the Tribunal received any communication from either of them.
The Tribunal has received a Response from Kathy Crane, who is identified in the Order and an affected party. In her Response, she identifies herself as someone who made a complaint to the Office. She asks the Tribunal to order the remedies sought by the Office.
Ms. Crane also indicated that the Employer and the Union have been engaged in a labour dispute and the employees in the bargaining unit have been on strike since October 1, 2002. Ms. Crane also confirmed the Tribunal’s understanding that on February 13, 2003, the Employer announced the closure of this plant. That announcement may explain the failure of the Employer and the Union to respond to this Referral.
The Office’s assertion that its Order has not been complied with is unchallenged. The Tribunal concludes, then that the Order of July 8, 2002 has not been complied with by the Employer and the Union.
Subsection 24(5) of the Act provides as follows:
24(5) Where an employer or a bargaining agent fails to comply with an order under this section, a review officer may refer the matter to the Hearings Tribunal.
(5.1) The Pay Equity Office shall be deemed to be the applicant for a reference under subsection (5).
(5.2) On a reference under subsection (5), the Hearings Tribunal shall not consider the merits of the order that is the subject of the reference.
(5.3) On a reference under subsection (5), the person against whom the order was made has the burden of proving that he, she or it has complied with the order.
In Kitchener-Waterloo Lutheran School (2001-2002), 12 P.E.R. 112, the Tribunal questioned whether in a Referral pursuant to section 24(5), it had jurisdiction to direct any remedy other than that the Order be complied with:
One view of the intention of these provisions is that they restrict the Tribunal to determining whether or not the Review Officer's Order has been complied with, and if it concludes that there has not been compliance, for the Tribunal to make an order for compliance. The remedies requested by the Office in this Referral would require the Tribunal to do more. At a minimum, the Tribunal would have to consider whether the remedies now being sought by the Office are appropriate in the circumstances.
Ultimately, that matter was adjourned and the Tribunal did not have to answer the question. In the case before the panel in this Referral, the Office is also seeking remedial relief that is different or in addition to, what is contained in the Order. The Office asks the Tribunal to order the payment of interest and make a finding that the Employer and the Union have breached the Act. Before making such orders, the Tribunal requires the Office to make submissions about its jurisdiction to make such orders, in the context of a Referral; the appropriateness of such orders in this case; and particularize what provisions of the Act it asserts have been contravened by the Employer and the Union.
The Office must deliver its submissions to Ms. Crane and file them with the Tribunal by no later than April 8, 2003. Since the Employer and the Union have not delivered or filed a Response or otherwise indicated an interest in participating, the Office is not required to deliver its submissions to either of them.
The Tribunal does not anticipate convening an oral hearing and expects that all matters can be determined after the exchange of written submissions.
Dated at Toronto, Ontario this 17th day of March 2003.
Mary Ellen Cummings, Chair
Pauline Seville, Member
Diane Rose, Member