Pay Equity Hearings Tribunal
3565-04-PE Canadian Union of Public Employees, Local 2577, Applicant v. Children’s Aid Society of the County of Lanark and the Town of Smith Falls, Respondent.
BEFORE: Mary Ellen Cummings, Chair, Pauline R. Seville and Margaret Kvetan Members.
CITE AS: Children’s Aid Society of the County of Lanark and the Town of Smith Falls September 7, 2005, 3565-04-PE (P.E.H.T.)
DECISION OF THE TRIBUNAL; September 7, 2005
This is an Application in respect of a Review Officer’s Notice of Decision dated November 22, 2004. The Canadian Union of Public Employees, Local 2577 (“the Union”) had complained that a negotiated change in its collective agreement with the Children’s Aid Society of the County of Lanark and the Town of Smith Falls (“the Employer”) contravened the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”). The Officer found no contravention, and issued a Notice of Decision. The Union appeals that determination.
As part of its Response, the Employer submitted that the Union has not made out a prima facie case, and the Employer asks that the Application be dismissed without a hearing.
The Union submits that in the parties’ last round of collective bargaining, for a collective agreement that expired on March 31, 2005, they negotiated a change to the threshold at which employees would be entitled to premium payments for hours worked above the threshold. Under the language of the previous collective agreement part-time employees, who regularly worked twenty-four hours per week, were paid at premium rates for all hours worked in excess of twenty-four. Under the new collective agreement, the language provides that the threshold for all employees, full-time and part-time, is thirty-five hours. The Employer characterizes the change as a clarification of the parties’ intentions, that is to clarify that both full-time and part-time employees are entitled to premium pay after they work thirty-five hours In any event, it is not disputed that part-time employees who had been paid premium rates for all hours worked after twenty-four hours, are now being paid premium rates only when they work in excess of thirty-five hours. The Union acknowledges that it agreed to the change, and that the collective agreement was ratified. However, the Union asserts that is irrelevant given its obligations under the Act, which are found in section 7(2):
7(1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.
(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).
The Union asserts that it cannot bargain for a compensation practice that contravenes the Act. It submits that the increase in the threshold for overtime entitlement results in a reduction in compensation, resulting in a widening of the wage gap, and thus, a contravention of the Act.
Our understanding is that the pay equity plan for this bargaining unit is a proxy plan.
We have reviewed the Application. Our initial impression is that the Application, as pleaded, does not set out a contravention of the Act. The Tribunal has long exercised its discretion to dismiss an Application that does not plead a prima facie case for the remedies sought. The test the panel applies is set out in Peterborough Firefighters (No. 1) (1991), 2 P.E.R. 86 at paragraphs 6 and 7:
On a motion for dismissal on the basis of failure to make out a prima facie case, a tribunal must decide whether the applicant has made out a case on the face of the written material filed as the application. For this purpose, the applicant is permitted to make its best case by treating everything it has alleged as if it were true. A failure to establish a prima facie case means that even if the applicant could prove all its allegations, the tribunal could do nothing for it because the facts alleged do not constitute a violation of the relevant statute. If the applicant's best case does not provide the basis for a remedy, the application is dismissed; if it would provide a basis for a remedy, however, the assumption of truth is forgotten: the case proceeds to permit the applicant to prove its allegations and the respondent to respond to them.
An applicant must make out a set of circumstances which, if proved, the Tribunal can rectify in the manner requested by the applicant. There are times when the applicant may make out a case which could be rectified by the Tribunal, but does not provide sufficient information for the respondent to answer the case fully; then the Tribunal might order the applicant to provide further particulars about the circumstances underlying its claim. But such cases must be distinguished from those in which it is clear on the material filed by the applicant that the Tribunal could not rectify the circumstances set out by the applicant in the manner requested; then there is no point in proceeding: hence the authority to dismiss for failure to establish a prima facie case.
The Tribunal inquires as to whether a prima facie or arguable case has been made out to avoid potentially wasting both parties' and the Tribunal's resources on a proceeding that has no likelihood of success and to provide applicants with an opportunity to give any further relevant information.
The amended collective agreement has not altered the wage rates earned by part-time employees. It has only increased the threshold for entitlement to premium pay, to make it equivalent to the threshold for full-time employees. Not every change in a compensation practice that results in members of a female job class taking home less money, constitutes a contravention of the Act. In fact, most compensation changes that parties agree to in collective bargaining will not amount to a contravention of the Act. Consequently, merely asserting that a compensation change has been made that results in a reduction in employees’ take-home pay is not enough to found a contravention of the Act.
Before the Tribunal determines whether this Application should be dismissed for failure to make out a prima facie breach of the Act, the Union may make any further submissions it wants the Tribunal to consider. Those submissions should be served on the Employer and filed with the Tribunal by no later than Friday September 23, 2005. The Employer must serve and file its response by no later than Friday October 7, 2005.
Dated at Toronto, Ontario this 7th day of September , 2005
“Mary Ellen Cummings”
Mary Ellen Cummings, Chair
“Pauline R. Seville”
Pauline R. Seville , Member
“Margaret Kvetan”
Margaret Kvetan , Member