Pay equity hearings tribunaL
0752-03 OPSEU Pension Trust, Applicant v Sarah Greenaway, Respondent
Before: Mary Ellen Cummings, Chair; Margaret Kvetan and Catherine Bickley, Members
Cite as: OPSEU Pension Trust (May 7, 2003) 0752-03 (P.E.H.T.)
decision of the tribunal, MAY 7, 2003
OPSEU Pension Trust has brought an Application with respect to an Order of a Review Officer dated December 9, 2002. In that Order, the Review Officer found that the sale of business provisions of the Pay Equity Act R.S.O. 1990, c. P-7 (the Act) were applicable to the OPSEU Pension Trust. The Officer ordered the Applicant to post an amended pay equity plan; reconfigure some of its job classes and, if the female job classes did not find a comparator under the job-to job method of comparison, to apply the proportional value method of comparison.
OPSEU Pension Trust has outlined in its Application that the Ontario Public Service Employees’ Union wanted to exercise greater control over the pension funds of its civil servant bargaining unit members. After negotiations between the Ontario Public Service Employees Union and Ontario Government, in 1994 the Legislature passed the Ontario Public Service Employees’ Union Pension Act, transferring some of the pension assets that had been held by the Ontario Pension Board. In addition, OPSEU Pension Trust attracted many of the Ontario Pension Board’s employees, and ultimately recognized Ontario Public Service Employees Union (OPSEU) as the bargaining agent for the employees who would fall into a bargaining unit. However, OPSEU Pension Trust submitted that the sale of business provisions of the Act are not applicable to these circumstances; that there has been no sale of business and, consequently, that Part II of the Act does not apply to the OPSEU Pension Trust.
In an administrative review of the file, the Deputy Registrar determined that the issues in this case required that notice be given to OPSEU, as bargaining agent at OPSEU Pension Trust; to the Ontario Pension Board and to present and former non-union employees of OPSEU Pension Trust. The Deputy Registrar, in a letter dated April 9, 2003 directed the Applicant to give a Notice of Application that had been prepared by the Tribunal.
OPSEU Pension Trust objects to the requirement to give notice to the Ontario Pension Board and to OPSEU. The Applicant does not object to giving notice to its present non-union employees, but objects to giving notice to former non-union employees.
Typically, determinations about giving notice to persons other than parties named in an Application or Response is are administrative. However, because the Applicant has filed an objection to that administrative determination, the Chair of the Tribunal thought it appropriate to turn the matter over to an adjudicative panel.
At this point, the Tribunal is not determining whether the Ontario Pension Board, OPSEU or the Applicant’s former non-union employees have sufficient interest in this proceeding that they should be given the right to participate. The Tribunal is only addressing whether given our understanding of the issues in this proceeding, other persons or entities should be given an opportunity to know about the proceeding and to seek to participate. If any of the persons or entities to whom notice is given do indeed seek to participate, then the Applicant can argue that they do not have sufficient interest within the meaning of section 32 of the Act to participate. But, of course, unless the Tribunal provides the notice, those persons or entities will not have the opportunity to seek to participate.
In our view, there is a fairly low threshold to be met when a statutory tribunal decides to give notice. It is our understanding that one of the issues to be determined is whether the events that resulted in the creation of the OPSEU Pension Trust is a sale of business to which the provisions of section 13 of the Act apply. While the Tribunal understands that there are no pay equity disputes between the OPSEU Pension Trust and OPSEU, as bargaining agent, a determination about a sale of business could affect the whole workplace, not just non-union employees. For that reason, the Tribunal thinks it appropriate to give notice of the proceeding to OPSEU.
The Tribunal considers it appropriate to give notice to the Ontario Pension Board because it previously employed the employees who are now at OPSEU Pension Trust and may have had some role in the transactions that resulted in the creation of OPSEU Pension Trust. We understand that the Applicant submits that the Act does not provide for joint and several liability for purchasers and vendors. That is certainly one view of the statute, but in the absence of any definitive case law on the issue, it is premature for the Tribunal to make that assumption.
Counsel for the Applicant submitted that it was premature to give notice to the former non-union employees. OPSEU Pension Trust suggested that the Tribunal should first determine the challenge to the Order’s requirement that a pay equity plan be prepared with retroactive application. Again, if any former non-union employees so choose to participate, OPSEU Pension Trust can argue about the appropriate order of proceeding, but those employees should also be given an opportunity to make their submissions.
The Applicant sought a clarification about whether the Tribunal was requiring notice to former employees who were included in the bargaining unit represented by OPSEU. The answer is no. The Tribunal is satisfied that notice to the bargaining agent is sufficient.
The OPSEU Pension Trust is hereby directed to provide the enclosed updated Notice of Application and a copy of this decision to:
a) Any present employees who do not fall within the bargaining unit, by hand or by mail;
b) Any former employees employed between January 1, 1995 and the present day by mail to their last known address;
c) The Ontario Public Service Employee’s Union as bargaining agent;
d) The Ontario Pension Board.
After sending out the notices set out above, the Applicant must complete and file with the Tribunal a Statement of Posting (Form 6) by no later than May 30, 2003.
This panel is not seized.
Dated at Toronto, Ontario this 7^th^ day of May 2003.
Mary Ellen Cummings, Chair
Catherine Bickley
Margaret Kvetan