PAY EQUITY HEARINGS TRIBUNAL
0095-08-PE The City of Greater Sudbury, Applicant and Canadian Union of Public Employees and its Local 4705 (Inside Unit), Respondent
0435-08-PE Canadian Union of Public Employees and its Local 4705 (Inside Unit), Applicant and The City of Greater Sudbury, Respondent
BEFORE: Diane L. Gee, Chair, Pauline Seville and Margaret Kvetan, Members
CITE AS: City of Greater Sudbury (September 19, 2008) (0095-08-PE and 0435-08-PE) (P.E.H.T.)
DECISION OF THE TRIBUNAL: September 19, 2008
At a pre-hearing conference held on August 14, 2008, the parties agreed that the Pay Equity Hearings Tribunal (the “Tribunal”) would determine as a preliminary matter a question concerning the application of subsections 6(4) and 6(5) of the Pay Equity Act (the “Act”) based on written submissions to be made by the parties. Such submissions have now been filed and the Tribunal hereby provides its determination.
The employees of The City of Greater Sudbury (the “Employer”) are all within a single “establishment” for pay equity purposes. Within this single establishment there are five bargaining units and one non-union group of employees. The Canadian Union of Public Employees and its Local 4705 (the “Union”) represents employees of the Employer in two of the five bargaining units. One of these bargaining units is known as the “Inside Unit”; the other is known as the “Outside Unit”. Each Unit has its own separate collective agreement.
Section 13 of the Act provides that, in an establishment in which any of the employees are represented by a bargaining agent, there is to be a pay equity plan for “each bargaining unit” and a pay equity plan for that part of the establishment that is not represented in any bargaining unit. The Employer and the Union have been engaged in negotiations in respect of a pay equity plan for the Inside Unit alone for the past eight years. The Employer and the Union commenced negotiations in respect of a pay equity plan for the Outside Unit more recently.
A Review Officer determined that, when the parties were unable to find a male comparator in the Inside Unit, they were entitled to look for a comparator throughout the establishment.
The Union challenges this determination and submits that, where there is no male comparator in the Inside Unit, subsection 6(4) directs that the female job class is to be compared to a male comparator in the Outside Unit. According to the Union, only when there is no job class of comparable value within either of the Inside or Outside bargaining units, does subsection 6(5) apply, requiring a comparison be made to job classes throughout the establishment. In the Union’s submission, both the Inside and Outside Units are “the bargaining unit” for the purposes of subsection 6(4) of the Act.
The Employer supports the Review Officer’s determination. The Employer points out that, by decision dated March 20, 2001, the Ontario Labour Relations Board (the “Board”) determined that the inside and outside workers should be placed in two separate bargaining units and that the two separate bargaining units each have their own separate collective agreements. Further, the Employer asserts that it and the Union began negotiations over pay equity for the Inside Unit over eight years ago and the Union has never raised the issue of the inclusion of the Outside Unit in the plan. In the submission of the Employer, the Inside and Outside Units are two separate bargaining units and should not be treated as a single bargaining unit for the purposes of pay equity.
Subsections 6(4) and 6(5) of the Act provide as follows:
6(4) Comparisons under the job-to-job method of comparison,
(a) for the job classes inside a bargaining unit, shall be made between job classes in the bargaining unit; and
(b) for job classes outside any bargaining unit, shall be made between job classes that are outside any bargaining unit.
(5) If, after applying subsection (4), no male job class is found in which the work is performed is of equal or comparable value to that of the female job class that is the subject of the comparison, the female job class shall be compared to male job classes throughout the establishment.
It is the Tribunal’s determination that the proper interpretation of the operation of subsections 6(4) and (5) is as determined by the Review Officer. Subsection 6(4) directs that, where comparisons are being made under the job-to-job method of comparison for job classes that are in “a bargaining unit”, the comparison is to be made to job classes in “the bargaining unit”. The reference to “the bargaining unit” is a reference back to the same bargaining unit that the job classes for which a comparison is being sought are located. If the search for a comparator within the same bargaining unit does not result in a comparator being found, comparisons can then be made throughout the establishment. The Tribunal does not accept, as argued by the Union, that subsection 6(4) requires comparisons to be made to positions within a completely separate bargaining unit prior to considering positions establishment wide. The language of subsection 6(4) and (5) and the operation of the Act do not support such a conclusion.
These matters are hereby referred to the Registrar to schedule a further Pre-Hearing conference.
Dated at Toronto this19th day of September 2008
“Diane L. Gee”
Diane L. Gee, Chair
“Pauline R. Seville”
Pauline R. Seville, Member
“Margaret Kvetan”
Margaret Kvetan, Member