Pay Equity Hearings Tribunal
File No.: 3565-04-PE Date: January 5, 2006
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 (No. 2) January 5, 2006, 3564-04-PE (P.E.H.T.)
Decision of the Tribunal
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”) 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 Review Officer found no contravention of the Act. The Union disagrees.
In a decision dated September 7, 2005, we directed the Union to make submissions in response to the Employer’s assertion that the Union had not pleaded a prima facie breach of the Act and on that basis, the Application should be dismissed without a hearing. The Union has made its submissions and the Employer has responded.
The facts are not in dispute. 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 part-time employees would be entitled to overtime payments. Under the language of the previous collective agreement, part-time employees were paid overtime when they worked more than 2 ½ hours beyond their regularly scheduled hours. Under the new collective agreement, overtime for full and part-time employees is paid when they work more than 2 ½ hours past 35 hours of work.
The Employer characterizes the change as a clarification of the parties' intentions that both full-time and part-time employees were entitled to overtime pay after they work 37 ½ hours. In any event, it is not disputed that part-time employees who had been paid overtime rates when they worked more than 2 ½ hours beyond their regularly scheduled hours are now being paid overtime rates only when they work in excess of 37 ½ 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).
- In our September 7, 2005 decision, we set out our initial impression that the Union had not pleaded an arguable or prima facie breach of the Act. In other words, even if we accepted everything the Union asserted as true, it would not amount to a breach of the Act and we would not grant a remedy. At paragraph 7 we wrote:
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.
Having reviewed the submissions, the fundamental problem with the Union’s position, as identified by the Employer, is that there is no assertion that a benefit has been lost by a female job class, reducing the amount of compensation available to it, when compared with the compensation paid to or available to a male job class comparator. Part-time employees do not make up a definable job class, but are people who perform a variety of functions, in a range of schedules, from 14 to 33 hours a week.
All of the cases relied on by the Union concerned a difference in compensation or benefit availability as between a female job class and its male job class comparator. In Regional Municipality of Peel, (1992) 3 P.E.R. 191, for example, the Tribunal analyzed the different pre-conditions that had to be met for payment of a shift premium, as between the female job class and its male comparator. In the case before us, there is no assertion that a female job class is subject to a different pre-condition for the payment of overtime premiums, as compared with a male job class. The overtime premium threshold change applies to all of the job classes (except Child Support Protection Workers) that are covered by the collective agreement.
The Union asserts that there has been a widening of the wage gap, in that part-time workers have seen their wages reduced as a result of the change in the overtime threshold. As counsel for the Union explained:
Loss of availability of a benefit to female job classes, which was part of their compensation, must necessarily widen the wage gap. Simply put, the wage rates were equalized for pay equity purposes and now they are, once again, unequal. It is no different than if the part-time wage rate was simply reduced.
With respect, it is not at all clear that the concept of a “wage gap” , as that term has been interpreted by the Tribunal, has any application in these circumstances. We understand that the pay equity plan for this workplace in a proxy plan, which means that the plan is not based on a comparison between male and female job classes in this workplace. The Union is not asserting that the Employer has failed to make the salary adjustments required under the plan. Since the female job classes in this workplace are not “tracking” male job classes in the workplace, there is no potential for the creation of a wage gap of the sort that section 7 of the Act requires employers and trade unions to remedy.
As we set out in our earlier decision, not all changes in compensation amount to a violation of the Act. In this case, the Union has not asserted that the affected employees are part of a female job class who have seen their access to a benefit, in this case overtime pay, altered, while the access has remain unchanged for a comparable male job class. All that the Union has asserted is that a negotiated change in the threshold for all part-time employees to earn overtime rates of pay has resulted in a group of women taking home less pay than they did before. That does not amount to a violation of the Act.
This application is dismissed because it does not make out a prima facie or arguable breach of the Act.
Dated at Toronto, Ontario this 5th day of January , 2006.
“Mary Ellen Cummings”
Mary Ellen Cummings, Chair
“Pauline R. Seville”
Pauline R. Seville, Member
“Margaret Kvetan”
Margaret Kvetan, Member