2387-05-PE Helping Hands Daycare, Applicant v. Group of Employees, Respondent.

BEFORE: Mary Anne McKellar, Vice-Chair, Margaret Kvetan and Pauline R. Seville Members.

CITE AS: Helping Hands Daycare (18 November 2005) (P.E.H.T.)

DECISION OF THE TRIBUNAL; November 18, 2005

Introduction

1By order dated July 15, 2005, a Review Officer directed the Applicant, Helping Hands Daycare (“the Employer”) to prepare and post a proxy pay equity plan retroactive to January 1, 1994.

2The Employer objects to the Order, and appears to take the position that it has in fact already satisfied its obligations under the Pay Equity Act (“the Act”). In particular, the Employer refers to certain wage adjustments it paid in 1996, allegedly pursuant to the recommendations of a different Review Officer.

3The Employer’s application also enumerates certain communications it has made with the Tribunal in what appears to be an effort to seek legal advice or assistance in how to comply with the Act. The role of the Tribunal is to adjudicate in an impartial fashion disputes that arise respecting the interpretation and application of the Act, and it is therefore not appropriate for it to provide any party with legal advice. The Tribunal will provide information about its processes, but it cannot provide parties with legal advice about how to comply with the Act.

Purpose of this Decision

4The issue raised in this Application – the extent of the Employer’s obligation to prepare and post a proxy pay equity plan – potentially impacts on the Employer’s entire workforce, both past and present. It will be necessary at some point to provide notice of the Application to current and former employees, and to provide them with an opportunity to file responses and participate in any hearing. Until the Tribunal has a better grasp of the scope of the Employer’s case and the precise nature of its objection to being required to prepare and post a proxy plan, it is premature to provide such notice. When notice is directed, however, this decision and the Employer’s written response to it will be among the materials that must be provided.

5In order to better understand the nature of the Employer’s Application, and what it is that the Employer wants the Tribunal to do, the Tribunal would like the Employer to clarify certain matters. Specific directions respecting the information that should be provided are set out below, after some paragraphs briefly describing the history of the Act’s proxy provisions which will hopefully offer some context for the submissions we are directing the Employer to make.

The Proxy Provisions of the Act

6Virtually all employers (except certain small private-sector employers) in Ontario are required to establish and maintain pay equity.

7All broader public sector employers, including licensed day nurseries, are required to prepare and post pay equity plans, the contents of which are specified in the Act, and to make adjustments where necessary to achieve pay equity.

8There are three methodologies of comparison available to determine whether pay equity exists and if not, what adjustments may be required to achieve it: job-to-job; proportional value; and proxy. The first two are of little utility in workplaces that are largely female-dominated. The requirement to use the proxy methodology in such workplaces applies only if the workplace is within the broader public sector.

9The proxy provisions were introduced into the Act in 1993 and were repealed in June 1995. Subsequently, by decision of the Divisional Court dated September 5, 1997, it was determined that their repeal contravened the Canadian Charter of Rights and Freedoms. The repealing legislation was struck down, and the provisions effectively reinstated (although never reprinted in official versions of the Act).

Submissions Directed

10Given the foregoing chronology, it is not apparent to the Tribunal why an employer would have prepared a proxy pay equity plan in 1996, a period when the legislative provisions requiring it to do so were not in effect. In order to better understand what has gone on in this workplace, the Tribunal would like the Employer to advise it of the following, and to provide the specified supporting documents:

a) When did the Employer prepare and post a pay equity plan? Please provide a copy of the plan.

b) Were there any female job classes for which it was not possible to determine whether pay equity existed?

c) If the Employer contends that it has achieved pay equity, when did that occur? Please provide copies of any documents that evidence such achievement.

11The Employer is directed to file the information set out in paragraph 10 above to the Tribunal by no later than December 9, 2005.