0759-03 Julie Munro et al, Applicant v. Ottawa Heart Institute, Ottawa Hospital and CUPE Local 4000, Respondent
Before: Mary Ellen Cummings, Chair; Pauline R. Seville and Margaret Kvetan, Members
Cite As: Ottawa Heart Institute, Ottawa Hospital and CUPE Local 4000 (May 13, 2004) 0759-03 (P.E.H.T.)
DECISION OF THE TRIBUNAL, May 13, 2004
This Application has been brought by a Group of Employees, who are members of a bargaining unit, now represented by the Canadian Union of Public Employees, Local 4000 (“CUPE Local 4000”). The present employer of the Group of Employees is the Ottawa Heart Institute, Ottawa Hospital (“the Employer”).
The Group of Employees occupy a position called Clerk 3. We understand from their Application that the employees are communication clerks or switchboard receptionists. They complain that one of their colleagues, called Group Leader and in a position called Clerk 4, received a pay equity adjustment in June 14, 2002. Prior to the pay equity adjustment, the wage gap between Clerk 3 and Clerk 4 was 50 cents an hour. Now the gap, they say, is $5.00 an hour. The Group of Employees assert that the job duties of Clerk 3 and Clerk 4 are the same, with the result that they should all be paid the same. The Group of Employees have provided documents setting out some of the duties they perform, and have explained why they believe that the Clerk 3 and Clerk 4 should be paid the same.
The Group of Employees assert that until this pay equity adjustment was provided to the Clerk 3 position, they were not aware of any job evaluation process, and believe that pay equity has not been provided for their position. They assert that neither their union, CUPE 4000 nor their Employer has responded to their concerns.
Issue
The Tribunal is examining the Application at this point because the Canadian Union of Public Employees (“CUPE”) has asked the Tribunal to dismiss the Application without a hearing. CUPE asserts that the pay equity plan about which the Applicants are complaining was deemed approved after it was negotiated by a previous union and a previous employer. The Tribunal’s jurisprudence, CUPE argues, shows that the Tribunal will not consider a complaint from a member of a bargaining unit about a negotiated plan unless the individual employee pleads that the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) has been contravened or that a decision taken by the employer and the union was not reasonable. CUPE asserts that even if the Tribunal accepted everything the Applicants have pleaded to be true, it would not establish a contravention of the Act nor would it show that CUPE has acted unreasonably.
The Group of Employees made a complaint to Review Services. In a decision dated December 4, 2003, the Review Officer concluded that the Group of Employees had not established a violation of the Act. The decision notes that the Group of Employees were initially employed by the Ottawa Civic Hospital, which negotiated a pay equity plan with the then bargaining agent, the Canadian Union of Public Employees Local 576 (“CUPE Local 576”) in July 1991. In 1996, CUPE Local 576 reviewed the job classes for the purposes of maintaining pay equity. It determined that there had been substantial changes in the Clerk 4 position, and CUPE Local 576 and the Ottawa Civic Hospital agreed that the job should be moved from point band 6 to point band 10. A Review Officer’s Order later amended the male comparator for the Clerk 4 job class, which resulted in a further pay equity adjustment for the Clerk 4. The Review Officer does not refer to any pay equity adjustment made on June 14, 2002. It may be that the decision to amend the male comparator was made sometime after 1998, and the Clerk 4 received the benefit of that decision, and retroactive pay, in June of 2002.
On April 1, 1998, the Ottawa Hospital was formed from the Ottawa General Hospital, Riverside Hospital, Ottawa Civic Hospital (including the Ottawa Heart Institute) and Salvation Grace Hospital, by operation of Provincial legislation. A vote was held among the employees in the merged bargaining units, and CUPE Local 4000 was successful for the bargaining unit in which the Group of Employees falls.
As of some point in 1999, the Clerk 3 job class had a new employer and a new bargaining agent. This is important because all of the events about which the Group of Employees complain appear to have happened in 1998 or earlier, although we appreciate that they have focused on a pay adjustment to the Clerk 4 in June of 2002. To be clear, the Employer, and CUPE Local 4000 assert that they have yet to negotiate a pay equity plan to cover the merged hospital and integrated bargaining units.
When the events about which the Applicants complain occurred is important because the Tribunal has to ensure that it has the correct parties before it. Since CUPE Local 4000 was not the bargaining agent until 1999, it is not liable for the conduct of the bargaining agent in previous years. CUPE has responded that CUPE Local 576 no longer exists. Its bargaining rights were ended when the Ontario Labour Relations Board declared CUPE Local 4000 to be the bargaining agent of the merged bargaining unit.
The Group of Employees complains that they have not been part of any pay equity process to examine their jobs. That is certainly true for the period after the hospitals merged, because the Employer and CUPE Local 4000 have yet to negotiate a pay equity plan for the merged groups. The Employer points out that the incumbents were not in the job in 1991, when pay equity was first implemented, so they would not have had any role at that time. The Employer advises that it is aware of a notice sent out by CUPE Local 576 when it engaged in a maintenance review of 1996. It is not surprising that 8 years later, the Employer cannot say with any certainty, whether the Group of Employees was aware of the maintenance review.
It appears, looking at the information in all of the pleadings, that the pay equity increase that has attracted the attention of the Clerk 3 incumbents is rooted in the 1996 maintenance review. Then, much later (it seems) a Review Officer ordered a change to the male job class comparator for Clerk 4, which triggered an increase to the Clerk 4 position, which although effective to 1998, did not actually get implemented until 2002. The Group of Employees wrote that they believe the jobs are essentially the same. The Clerk 4 works during the day, and the Clerk 3 performs essentially the same tasks, they claim, evenings, nights and weekends. They could accept a 50 cent wage gap, but now that it has increased to $5.00, they do not think that it is a fair result, because both groups do essentially the same work.
Analysis
The Act does not require that comparable female job classes be paid the same. Many employers have, as part of their overall compensation review, sought to establish wage equity among all job classes, but the Act does not require them to do so. The Act requires employers to seek a male job class comparator for each female job class. If there is a choice of male comparators, employers can achieve pay equity by adjusting the wages and benefits of the female job class to the lowest comparable male position. Because the Act mandates a “matching” of female to male job classes, new disparities between female job classes can be created if female job classes are compared to different male job classes. That appears to be what has happened in this case. The Clerk 3 and Clerk 4 job classes were each compared to a different male comparator. In 1998, by order of the Pay Equity Office, the male comparator for the Clerk 4 was changed. Since the Employer is obliged to ensure that any female job class is paid the same as its male comparator, the Employer was obliged to adjust the wages of the Clerk 4. But because the male comparator chosen for the Clerk 3 was not changed, the Employer was not obliged to make a pay equity adjustment to the Clerk 3, resulting in a larger gap between Clerk 3 and Clerk 4. That result, while it can create issues of internal equity, is not a violation of the Act. Therefore, even if we were to accept the allegation that the wage gap between the Clerk 3 and Clerk 4 has grown, that would not amount to a contravention of the Act.
The Group of Employees can succeed in their Application only if they can establish that their former employer and former bargaining agent acted unreasonably in evaluating the job of Clerk 3. The Tribunal has held in a number of cases (see for example Management Board Secretariat, (1993) 4 P.E.R. 58) that when an employer and a trade union negotiate a pay equity plan, and then implement it, the plan is deemed approved. Members of the bargaining unit are bound by the result. At paragraph 29 of Management Board Secretariat, the Tribunal wrote “The Act then, accords no role to employees who are represented by a bargaining agent in the negotiation or implementation of pay equity. Where a bargaining unit exists, the bargaining agent exercises these rights on behalf of members.” However, the Tribunal also recognized that employers and trade unions cannot ignore their obligations under the Act with impunity. If a member of a bargaining unit alleges that a pay equity plan does not meet standards that are explicitly set out in the Act, then the Tribunal will consider the complaint. The Tribunal recognized though that in meeting those standards, some deference must be given to the negotiating parties, because many aspects of achieving pay equity are not capable of absolute determination. Choices are available to employers and unions. The Tribunal recognized that in collecting job information, deciding what was significant, and then in evaluating that job content against the prescribed factors of skill, effort, ability and working conditions, a range of outcomes was possible. Consequently, the Tribunal concluded that a union and employer are required only to be reasonable in its collection and evaluation of job content. They do not need to meet an exact standard.
Most important for this case, the Tribunal said in Management Board Secretariat, that we will inquire into a complaint from members of a bargaining unit only if they have pleaded material facts in their application that would, if proved, satisfy the Tribunal that the union and the employer acted unreasonably in their evaluation of the job content. In Parry Sound District General Hospital (No. 2) (1996), 7 P.E.R. 73 the Tribunal said that the same standard of reasonableness to be applied in reviewing a complaint about how a trade union and an employer determined the composition of a job class, because, again, a range of choices is possible.
Applying those principles to the Application in this matter, has the Group of Employees pleaded material facts, that if proven, would establish that the former union and the former employer were not reasonable in placing the Clerk 3 and Clerk 4 in different job classes, and were not reasonable in evaluating the job class of Clerk 3?
The difficulty in making that assessment is that the Applicants have filed their Application without any knowledge of what their former employer and former bargaining agent did to meet their pay equity obligations. They do not know what job information was collected or what differences were identified as between the Clerk 3 and Clerk 4 job classes.
It is also apparent that the Applicants filed their Application without an understanding of the limited review the Tribunal is prepared to undertake in respect of a complaint about a pay equity plan negotiated between a union and an employer. The Applicants also filed their Application before receiving the decision from the Review Officer which detailed why she concluded that there was no contravention of the Act and why she was declining to make an Order. That decision should go some way to explaining the scheme of the Act. We note that the Officer correctly identified that the Act does not require comparisons between female job classes. However, the Officer wrote that she did review the job information provided and concluded that “…there are significant differences between the work of these two job classes”.
A review of jobs appears to have happened in 1996. We are now well into 2004 and both the employer and bargaining agent have changed since that time. The Tribunal has some reluctance in requiring the present Employer and CUPE to seek to justify and explain the decisions taken by others some 8 years ago. Moreover, it appears that the Group of Employees were prepared to accept that the differences between the jobs justified some wage gap between the Clerk 3 and the Clerk 4, but when it ballooned to $5.00, they became less tolerant. However, that gap, as explained above, results from the operation of the Act and its limitations, and is not a basis for the Tribunal to interfere. The Tribunal would not focus on whether the Clerk 3 and Clerk 4 job classes are comparable to one another. The Tribunal would examine whether the decision taken by the former bargaining agent and the former employer in the evaluation of the Clerk 3 job class was reasonable. One aspect of that inquiry would no doubt be whether it was reasonable to put the Clerk 3 and Clerk 4 in separate job classes. However, the Tribunal would not readily “second guess” the decision of the former bargaining agent and the former employer, as set out above. In particular, based on the information provided by the Applicants, we would not conclude that the decision to treat the Clerk 3 and Clerk 4 as separate job classes was unreasonable. Similarly, the Applicant have provided no basis for concluding that the evaluation of the Clerk 3 job was unreasonable.
Taking all of these factors into account, the Tribunal is of the view that this Application should be dismissed. However, before making a final decision, we would like to give the Applicants an opportunity to file any further submissions they would like to make in support of their position that the Tribunal should review the decision-making of their former employer and former bargaining agent. The Applicants must serve their submissions on the other parties, and file them with the Tribunal by no later than Friday June 18, 2004.