Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Government Services), 2009 CanLII 37958

PAY EQUITY HEARINGS TRIBUNAL

2691-08-PE Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario (Ministry of Government Services), Respondent.

BEFORE: Diane L. Gee, Chair, Catherine Bickley and Margaret Kvetan, Members.

DECISION OF THE TRIBUNAL: May 28, 2009

1. This is an application that has been filed with the Pay Equity Hearings Tribunal (the “Tribunal”) by Ontario Public Service Employees Union (“OPSEU”). In its response, the Crown in Right of Ontario (Ministry of Government Services) (the “Crown”) submitted that the requirements of section 25(1) of the Pay Equity Act, R.S.O 1990, c. P.7 as amended (the “Act”) have not been satisfied and, as such, the Tribunal is without jurisdiction to hear this application.

2. The parties have filed submissions with the Tribunal in respect of the jurisdictional issue raised by the Crown. The Pay Equity Office of the Pay Equity Commission was invited to file submissions but declined to do so.

Background

3. OPSEU represents employees in the Ontario Public Service employed by the Crown. OPSEU and the Crown negotiated and posted a pay equity plan in 1990 under which pay equity was achieved in 1992. Commencing in or about June 2005 the parties commenced negotiations of a new pay equity compliant job evaluation system. To date, such negotiations have not been concluded.

4. In its application, OPSEU asserts that the Crown has not maintained pay equity as required by section 7 of the Act. OPSEU asserts that the Crown’s failure to maintain pay equity includes the following:

i) numerous sales of business have occurred triggering the obligation under section 13.1 of the Act to negotiate an appropriate pay equity plan;

ii) many changed circumstances render the 1990 pay equity plan no longer appropriate triggering the obligation under section 14.1 of the Act to negotiate an appropriate pay equity plan;

iii) as a result of the reorganization, loss and addition of job duties and job classes since 1990 the classification system and the earlier policy capturing no longer accurately reflects and evaluates current jobs;

iv) changes to classifications to address temporary skills and shortages and merit pay must be examined for pay equity compliance.

5. In its response, the Crown disputes that it has failed to maintain pay equity for the employees represented by OPSEU. The Crown further disputes that there has been a sale of business or change of circumstance rendering the 1990 pay equity plan inappropriate and triggering the obligation to negotiate a new pay equity plan. Concerning the issues of temporary skills shortages and merit pay, the Crown states that these matters are exempted from pay equity scrutiny. In any event, the Crown asserts that it has entered into negotiations with the applicant and has complied with any potential negotiation requirement in sections 13.1 and 14.1 of the Act.

Submissions on the Jurisdictional Issue

6. In the submission of the Crown, the fact that there has been no prior complaint lodged with Review Services of the Pay Equity Commission renders the Tribunal without jurisdiction to hear the application.

7. The Crown submits that section 25(1) of the Act sets out the preconditions for convening a hearing at the Tribunal. Section 25(1) reads as follows:

8. (1) The Hearings Tribunal shall hold a hearing,

(a) if a review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24(3);

(b) if a request for a hearing, as described in subsection 23(4) or 24(6), is received by the Hearings Tribunal; or

(c) if a review officer refers a matter to the Hearings Tribunal under subsection 24(5).

8. Subsections 25(1)(a) and (c) refer to the prior involvement of a review officer. The provisions of the Act referred to in subsection 25(1)(b) read as follows:

Hearing before Tribunal

23. (4) The review officer shall notify the complainant of his or her decision under subsection (3) and the complainant may request a hearing before the Hearings Tribunal with respect to the decision.

Hearing before Tribunal

24. (6) An employer or bargaining agent named in an order under this section may request a hearing before the Hearings Tribunal with respect to the order, and, where the order was made following a complaint but the complaint has not been settled, the complainant may also request a hearing.

25. The Crown submits that these provisions also require the prior involvement of Review Services. According to the Crown, the Act clearly requires a matter to have been addressed by Review Services before it can be heard at the Tribunal.

26. The Crown also relies on Rules 10 to 12 of the Tribunal’s Rules of Practice:

27. Any person wishing to confirm, vary, or revoke a Review Officer’s Order or seeking a hearing pursuant to a Notice of Decision must complete an Application (Form 1) containing all the information required in Rule 12.

28. Where the Pay Equity Office refers a Review Officer’s Order to the Tribunal pursuant to ss.24(5) of the Act, it must complete a ss.24(5) Referral for Enforcement by the Pay Equity Office (Form 9). The Referral will be treated as if it is an Application.

29. A completed Application must:

(a) provide the full name of the Applicant, name of a contact person, address, telephone, and facsimile numbers of the Applicant and all Respondent(s) named in the Review Services Order or Notice of Decision;

(b) provide the name, address, telephone, and facsimile numbers of any representative of the Applicant and Respondent(s);

(c) identify any other person(s) the Applicant thinks may be affected by the proceeding and provide their address, telephone, and facsimile numbers, the name of a contact person and the name, address, telephone, and facsimile numbers of their representative, if any;

(d) in consecutively numbered paragraphs set out the issues in dispute, the reasons for making the Application, identify the sections of the Act which relate to the Application, and provide a clear and concise statement of the facts and events upon which the Applicant relies;

(e) describe the remedy or order which the Applicant wishes from the Tribunal; and,

(f) where applicable, provide a copy of the Review Services Order.

11. The Crown submits that the Tribunal’s Rules of Practice also contemplate that a matter under dispute must first be addressed by Review Services before it can be heard by the Tribunal.

12. Finally, the Crown refers to Tribunal jurisprudence in which the Tribunal has held that it has jurisdiction to adjudicate a matter only after a Review Officer has investigated and attempted to settle it and stated that it will not permit parties to do an “end run” around the Review Services process by bringing directly to the Tribunal an issue that was not raised at Review Services (see: Ottawa-Carleton (1995), 6 P.E.R. 212 at para. 3; Ontario Northland Transportation Commission (No. 1) (2001-02), 12 P.E.R. 134 at para 7; Villa Colombo (1997), 8 P.E.R. 133 at para. 13; Knox College (January 28, 2004) 0762-03-PE (P.E.H.T.))

13. The Crown submits that the Act, the Tribunal’s Rules and the Tribunal’s jurisprudence all support its position that the Tribunal is without jurisdiction to hear the application as there has been no prior complaint lodged with Review Services.

14. In support of its position that the Tribunal has jurisdiction to hear its application notwithstanding that it has not filed a complaint with Review Services, OPSEU advances two arguments. First, OPSEU asserts that its application raises fundamental questions of law that can only be answered by the Tribunal. OPSEU relies on Ongwanada (2001-02), 12 P.E.R. 1 at para. 15, wherein the Tribunal held “…there is no compelling reason in this case for the Tribunal to decline to deal with what is purely a legal argument by OPSEU, related to a substantive issues dealt with by Review Services, where addressing the issue neither impairs or undermines the [review] officer’s investigative and mediative role.” OPSEU states that the instant application asks the Tribunal to adjudicate the narrow, but central, legal questions of “… what obligations workplace parties have in negotiating pay equity maintenance and whether a union has a right to be fully engaged as a joint partner in negotiating all aspects of pay equity maintenance.”

15. Secondly, OPSEU asserts that the Pay Equity Commission (the “Commission”) has publicly indicated that it will not open files to address pay equity maintenance complaints in the circumstances presented by OPSEU’s application. OPSEU relies on Volume 13 of the Pay Equity Commission Newsletter from May 2007 in which the following is stated:

Update for Bargaining Agents & Employers

In cases where there is a claim:

• that there is a change in circumstance which renders the existing pay equity plan inappropriate for the bargaining unit and/or;

• that there is a failure to negotiate an initial plan or an amendment to a plan because of changed circumstances,

the assigned Review Officer will first investigate the substance of the claim. Settlement efforts will generally only be undertaken once it has been determined that there is a legislative basis for the application.

In the event that the Review Officer is of the opinion that there are no changed circumstances so as to render a plan inappropriate for the bargaining unit, the parties will be so informed and the Review Officer will in most cases conclude his/her involvement.

In cases where the applicant is claiming that the employer has failed to maintain pay equity, the Review Officer’s initial investigation will be focused on determining whether the employer’s maintenance practices have led to a widening of the wage gap or whether new wage gaps have been created in contravention of the Act.

Again if there is no legislative basis for the application the Review Officer will in most cases conclude his/her involvement.

We receive many application from unionized workplaces where the employer and the union advise that they have agreed to commence a negotiation for an amended pay equity plan and request our involvement in this negotiation or they have already commenced negotiations with a view to changing the plan and the negotiations have broken down.

Where either of the parties has requested our involvement in such situation, the Officer will, at the outset, require evidence that a final agreement is signed and in place between the parties which:

• confirms that there are sufficient changes in circumstances in the establishment so as to render the existing plan inappropriate and a summary of the changes;

• sets out the commencement date for any adjustments, which may be necessary as a result of the implementation of an amended plan.

There is no requirement in the Pay Equity Act for parties in a unionized environment to have a Maintenance Agreement.

While such an agreement is beneficial and our educational materials encourage parties to use such a mechanism, we will not be opening a file and assigning a Review Officer to assist in this type of negotiation.

Where an already negotiated Agreement exists and there is a breach of the Agreement, we will consider the nature of the breach and assign a file for investigation accordingly.

In cases where a Review Officer is facilitating a settlement process, and the process results in a settlement, which affects the pay equity plan/process, the Review Officer will be asking for a copy of the settlement documentation and the terms of the settlement will be reviewed to determine if there is compliance with the Pay Equity Act.

16. Having regard to the foregoing communication, OPSEU submits that “…the Tribunal must take jurisdiction to address the pay equity maintenance dispute at the heart of OPSEU’s application because the application falls within the category of disputes for which the Pay Equity Commission has indicated it will not open files and will not assign officers.”

17. By way of reply, the Crown points out that the Ongwanada, supra, decision relied upon by OPSEU did not permit the applicant to go directly to the Tribunal with a legal question. Rather, after Review Services had dealt with a particular substantive issue, the Tribunal permitted a party to advance a new legal argument in respect of that same substantive issue in circumstances where doing so did not impair or undermine the role of Review Services. Further, the Crown argues that OPSEU has incorrectly characterized its application as raising a narrow legal issue. In the submission of the Crown, the application raises a host of substantive issues that have not yet been investigated or explored.

18. Concerning the Commission’s publication set out above, the Crown disputes that it applies as the application does not allege a failure to negotiate a pay equity maintenance agreement. Rather, the application alleges a failure to maintain pay equity.

19. As such, there is no enforcement lacuna and no reason for the Tribunal to take jurisdiction. Further, the Crown asserts that it has never been asked to enter into a final agreement and thus disputes OPSEU’s assertion that it has been “unable” to secure such an agreement. The Crown states that all of OPSEU’s submissions asserting that it is barred from accessing Review Services of the Pay Equity Commission are premature and irrelevant to the jurisdictional issue.

Decision

20. For the reasons that follow, it is the Tribunal’s determination that, as there has been no prior complaint or concern lodged with Review Services of the Pay Equity Commission, the Tribunal is without jurisdiction to hear this application.

21. The Tribunal’s jurisprudence on this issue is extensive and consistent. The Tribunal has repeatedly determined that it does not have jurisdiction over an application until such time as a Review Officer has investigated and attempted to settle it (see by way of example: Haldimand-Norfolk (Regional Municipality), [1989] O.P.E.D. No. 1 (April 25, 1989) and the decisions referred to therein). Ongwanada, supra, does not provide for an exception where there is a pure legal issue to be determined. In Ongwanada, the substance of the issue had previously proceeded through Review Services. OPSEU was permitted to raise a new legal argument in respect of substantive matters that had already had the benefit of the investigative and mediation services of Review Services. That is a far different thing than permitting a party to proceed directly to the Tribunal. In any event, the Tribunal does not agree with OPSEU’s characterization of its application as raising a pure legal issue. The application raises a number of substantive issues including: whether pay equity has been maintained; whether there has been a change in circumstances and whether there has been a sale of business.

22. OPSEU’s position that the Commission will not deal with its application assumes that its application falls within, and only within, the class of matters that the Commission has stated in its May 2007 newsletter that it will not handle. The only issue that the newsletter states that the Commission will not deal with is the negotiation of a Maintenance Agreement. OPSEU’s application complains that the Crown has not maintained pay equity and is required to negotiate a new pay equity plan due to changed circumstances or a sale of business. The Commission’s newsletter states that the Commission will enquire into complaints that pay equity has not been maintained and will enquire into whether a change of circumstances has occurred. Thus, there is no reason to assume that, if OPSEU were to file a complaint with the Commission, the Commission would refuse to open a file. The appropriate approach is for OPSEU to file its complaint or concerns with the Commission and obtain a determination from the Commission as to whether it will handle the complaint. Until such time as OPSEU does so, and the Commission in fact declines to open a file, OPSEU’s argument is speculative and premature.

23. This application is hereby dismissed.

Dated at Toronto this 28th day of May, 2009.

“Diane L. Gee”______

Diane L. Gee, Chair

“Catherine Bickley”

Catherine Bickley, Member

“Margaret Kvetan”___________

Margaret Kvetan, Member