Pay Equity Hearings Tribunal
0559-08-PE Ontario Secondary School Teachers' Federation representing the EA/OCT/CYW Bargaining Unit, Applicant v. Brant Haldimand-Norfolk Catholic District School Board, Respondent.
BEFORE: Mary Anne McKellar, Vice-Chair, Margaret Kvetan and Pauline R. Seville, Members.
DECISION OF THE TRIBUNAL: July 31, 2009
Introduction
- This is an application under the Pay Equity Act, R.S.O 1990, c. P.7 as amended (the “Act”). We convened a hearing into this matter on April 17, 2009.
Issue
The question before us can be simply stated: where a female job class paid on a multi-step pay grid requires a pay equity adjustment, is it permissible under the Act for the respondent School Board to pro-rate the adjustment made at each step of that grid based on the relationship between the rate of compensation attaching to that step and the highest possible rate of compensation (the job rate) for their job class?
The applicant argues that pro-rating is not permissible, and that the Act, and more particularly section 9(3) of it, compels that each step in the multi-step pay grid for a female job class entitled to a pay equity adjustment must receive the same adjustment in dollar terms.
By Notice of Decision dated June 1, 2006, a Review Officer found that the School Board’s proposed method of making adjustments was permissible under the Act.
Decision
- It is our determination that section 9(3) of the Act precludes pro-rated pay equity adjustments to a multi-step pay grid attaching to female job classes capable of occupation by multiple incumbents. In those circumstances, each step of the pay grid must be adjusted by an equal dollar amount.
Facts
- The parties filed the following Agreed Statement of Facts:
Ontario Secondary School Teachers Federation and Brant Haldimand Norfolk
Catholic District School Board
Pay Equity File 0559-08-PE
AGREED STATEMENT OF FACTS
The Ontario Secondary School Teachers' Federation ("OSSTF") is a trade union representing a Bargaining Unit of Educational Assistants, Office, Clerical, Technical and Child and Youth Workers with the Employer.
The Employer, Brant Haldimand Norfolk Catholic District School Board (the "Board"), was created on January 1, 1998, as a result of a school board amalgamation of the Brant County Roman Catholic Separate School Board and the Haldimand Norfolk Roman Catholic Separate School Board.
The OSSTF has represented the Bargaining Unit since September 1998. The Bargaining Unit encompasses approximately 225 members.
Salaries for Bargaining Unit members are set out in the collective agreements between the parties. The collective agreements from 2001 to 2003, 2003 to 2006 and 2006 to 2008, are attached as Exhibit 1, Exhibit 2, and Exhibit 3, respectively in the parties' Joint Book of Documents.
The OSSTF and the Employer are the parties responsible for establishing and maintaining pay equity under the Pay Equity Act R.S.O. 1990, c, P.7 (the "Act").
The OSSTF and the Employer negotiated a Pay Equity Plan (the "Plan") as required under section 14 of the Act, retroactive to the date of amalgamation of January 1, 1998. The Plan was signed by both parties on May 20, 2003 and posted in the workplace May 30, 2003, and thus was "deemed approved" pursuant to section 14 (5) of the Act. The Pay Equity Plan is attached as Exhibit 4.
The deemed approved Plan signed May 20, 2003 covered the following job classes:
Accounting Clerk
Attendance Secretary
Child & Youth Worker
Computer Technician - Level 1
Computer Technician - Level 2
Co-operative Education Secretary
Educational Assistant - 1 (Overflow)
Educational Assistant - 2 (Special Needs)
Elementary School Secretary
Library Resource Technician
Occasional Teacher Dispatcher
Payroll Administrator
Resource Staff Secretary
Secretaries/Receptionists
Secretary to the Principal (Secondary)
Secretary to the Superintendent
Secretary to the Vice Principal (Secondary)
Secretary- Plant/Assessment
Student Administration System Secretary
Student Services Secretary
The method of comparison used in the Plan was the OSSTF Job Evaluation System, which is attached as Exhibit 5.
Pay equity adjustments were determined using either job to job comparison for those job classes with direct male comparators or proportional value comparison for those job classes without a direct male comparator.
The female job classes for which a pay equity adjustment was required and for which a maximum pay equity target rate, effective March 1, 2003, was established under the Plan were:
Attendance Secretary $19.42
Child and Youth Worker $22.79
Educational Assistant - 2 (Special Needs) $18.06
Secretaries/Receptionists (All) $15.89
Secretary to Principal (Secondary) $22.79
Secretary to the Superintendent $19.42
Student Services Secretary $19.42
- Subsequent amendments in 2004 and 2006 to the Plan were negotiated and executed by the parties to provide for pay equity adjustments and pay equity target rates retroactive to the inception date of the following newly created job classes:
Senior Payroll/Benefits Administrator $22.79 eff. Mar.1/03
Senior Database Administrator $17.89 eff. Mar.1/03
A further pay equity adjustment was made to the Child Youth Worker providing for a pay equity target rate of $24.82 effective March 1, 2003. The addenda to the Plan setting out the amendments are attached as Exhibits 6 and 7.
In addition, the subsequent Plan amendments also covered the Payroll Benefits Clerk and Production Assistant female job classes, for which no adjustments were owing.
The parties were unable to agree upon a distribution of the pay equity adjustments.
On June 10, 2003, the Board proposed salary grids to the OSSTF in a memorandum, which is attached as Exhibit 8. The parties had further discussions about the distribution of the pay equity adjustments but did not reach an agreement.
The Board proceeded with the distributed pay equity adjustments based on their proposal as outlined in Exhibit 8. The Board established the grids using the following process:
(a) Where there was a pay equity adjustment only, the Board plotted the female job class along the existing male comparator grid;
(b) Where there was a pay equity and internal adjustment, the Board applied the pay pattern (a percentage of the maximum rate) that existed in the collective agreement;
(c) Where there was only an internal equity adjustment, the Board applied the pay pattern that existed in the collective agreement.
On January 22, 2004, the OSSTF indicated via letter (attached as Exhibit 9) that its position remained that pay equity adjustments were to be administered as an equal dollar value on each step across the grid.
The OSSTF filed a complaint with the Pay Equity Commission alleging that this was a contravention of the Act as pay equity adjustments have to be applied as equal dollar adjustments at each step of the grid.
A Notice of Decision was issued on June 1, 2006. The Review Officer found no contravention of the Act by the Board.
Analysis
The parties joined issue with respect to the meaning of section 9(3) of the Act. This section provides:
(3) Where, to achieve pay equity, it is necessary to increase the rate of compensation for a job class, all positions in the job class shall receive the same adjustment in dollar terms.
If the Act had merely required the preservation of internal relativity within the pay grid(s) of a job class, without further elaboration of how that was to be preserved, we would have had no difficulty accepting the Board’s methodology. The Act however does elaborate on how relativity is to be preserved, and it is by providing equal dollar adjustments to all positions in a job class. We appreciate that the effect of this is to compress the pay grid for female job classes with multi-level pay grids that require pay equity adjustments, and we appreciate that OSSTF thereby gains an advantage that it did not collectively bargain for. Our decision will occasion a disruption to the pay grid that resulted from the collective bargaining process, and the Tribunal does attempt, where possible, to minimize such disruptions. Still, it must be recalled that the Act not only contemplates, but is premised, on the notion that existing compensation practices will in all likelihood have to be altered to comply with it. Desirable as it may be to avoid unnecessarily interfering with collectively bargained agreements, that principle does not trump the language of section 9(3).
Two Tribunal decisions have considered section 9(3) and its application to a situation similar to the one before us in which the pay grid for a female job class entitled to a pay equity adjustment had multiple steps. Those two decisions are Gloucester (No.2) (1991), 2 P.E.R. 208 and Glengarry Memorial Hospital (No.2), 3 P.E.R. 34. As well, the decision in Brant Haldimand Norfolk Catholic District School Board (13 April 2006) (0773-04-PE) involved the retroactive calculation of pay equity adjustments owing to the former single incumbent of a female job class which had a multi-step pay grid.
The parties made representations about the impact of the above decisions, as well as mention of some other decisions that do not expressly or by implication relate to section 9(3). Before turning to their arguments and our analysis of section 9(3) it may be useful to provide a brief description of the purpose of the Act and the mechanisms stipulated for the achievement of that purpose.
The Act states that its purpose is to redress systemic gender discrimination in compensation. The mechanism by which this goal is attained requires a number of things to occur: (1) a determination is made as to what job classes exist in a workplace; (2) for each job class it is determined whether the work is performed predominantly by females or males (or is gender neutral); (3) the value of the work performed by the job classes is assessed against a series of factors using a gender neutral comparison system; and (4) compensation adjustments are made as necessary so that the work performed predominantly (or historically) by female employees is compensated at least equally to similarly valued work performed predominantly (or historically) by male employees.
Under the Act, it is the work performed by a job class that is evaluated, and not the quality of any incumbent employee’s performance of that work. Ultimately, however, the Act operates to put money in the hands of actual workers – that is the incumbents of predominantly female jobs who have been underpaid as a consequence of historic gender discrimination in compensation practices. Nevertheless, because the Act focuses on the work (and not the worker), the word “employee” rarely appears, and there is much reliance on more abstract terms that do not necessarily have a single accepted meaning in the labour relations or employment law area. For example, the Act speaks of “job class” and “position” and “member” and “occupant”. Only the first is expressly defined.
“Job class” is defined as follows in section 1(1) of the Act:
"job class" means those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates;
Because “position” is not expressly defined in the Act, the meaning to be given to it must be ascertained having regard to the sections in which it appears. Optimally, of course, it is desirable for a term used throughout a piece of legislation to have the same meaning whenever it is used, and that is a presumption in statutory interpretation. There was some discussion of the possible interpretations of “position” in General Health Services (c.o.b. Circle of Life Health Services) v. Toronto East General Hospital, [2003] O.P.E.D. No.3, but ultimately that decision turned on the meaning of the word “work” rather than of “position”. Nevertheless, in the context of commenting on what “position” means, the panel reproduced various sections of the Act in which it appears:
"Job classes" are comprised of "positions". "Position" is not defined in the definition section. A "job class" may consist of a single "position" (see ss. 1(6)). It is not clear from these two provisions if "position" is a collective term encompassing the duties and responsibilities performed by more than one person, or if it does, in fact refer precisely to the work performed by any one individual in the establishment.
In addition to appearing in the "job class" definition and in ss. 1(6), ss. 1(7) also refers to "position" and provides as follows:
A position shall not be assigned to a job class different than that of other positions in the same establishment that [are similar to it in the ways that positions grouped in a job class are required to be] only because the needs of the occupant of the position have been accommodated for the purpose of complying with the Human Rights Code. (emphasis added)
The language of ss. 1(7) thus suggests that "position" is not a collective term, but refers to the work performed by a single individual.
- Section 8 deals with "exceptions" to the normal requirements of the Act. Sections 8(3) and (4) provide as follows:
8(3) A position that an employer designates as a position that provides employment on a casual basis may be excluded in determining whether a job class is a female job class or a male job class and need not be included in compensation adjustments under a pay equity plan.
8(4) A position shall not be designated under subsection (3) if,
(a) the work is performed for at least one-third of the normal work period that applies to similar full-time work;
(b) the work is performed on a seasonal basis in the same position for the same employer; or
(c) the work is performed on a regular and continuing basis, although for less than one-third of the normal work period that applies to similar full-time work.
These are the subsections the Tribunal must interpret and apply to the facts of this case, so we will return to them later in the decision.
Subsection 9(3) of the Act requires that where a female "job class" is entitled to a pay equity adjustment, all the "positions" in that job class must receive the same adjustment in dollar terms. This subsection has been the subject of some Tribunal case law as outlined below.
In addition to the above sections, the Act’s provisions defining “female job classes” and “male job classes” may also shed some light on the meaning of position. Essentially, the determination of whether a job class is male or female depends on the percentage of its “members” that are male or female. The word “member” also appears in the marginal note for section 1(6) “One-member job classes”, which was referred to but not set out in the Circle of Life case:
(6) A job class may consist of only one position if it is unique in the establishment because its duties, responsibilities, qualifications, recruiting procedures or compensation schedule, salary grade or range of salary rates are not similar to those of any other position in the establishment.
It appears to us from all of the provisions referred to above that “job classes” under this Act are comprised of “positions” which (when they are filled and not vacant) are filled by “members” or “occupants”. The strong inference from all of this is that “position” means precisely the bundle of duties and responsibilities that attach to a single “job” and which, if the position is filled, are performed by one individual employee “member” or “occupant”. It is hard to conceive of any meaning to be given to the terms “member” and “occupant” that is not equivalent to “incumbent”.
As noted earlier, the Tribunal grappled with how to interpret the term “position” as it is used in section 9(3) of the Act in both Glengarry and Gloucester, supra. The two decisions each offer a different approach. Furthermore, there is a dissenting decision in each. None of the decisions in these two files approach “position” in the way we have outlined above – that is as referring to the job that may be performed by any one individual employee – notwithstanding this is probably closest to the normal understanding in labour relations, employment and arbitral jurisprudence of what the term means. Each of these applications dealt with the situation where more than one rate of compensation attached to a female job class. Throughout this decision we refer to this characteristic as a “multi-step pay grid”.
Gloucester was the earlier of the two cases to be decided. The panel in it was faced with the situation where a male comparator job class had more pay steps than the female job class. The female job class comprised one single category and title of employee. Were each incumbent employee in the female job class (or each pay step attaching to the female job class) to have received the same dollar adjustment, then employees paid below the job rate in the female job class would be paid more than employees at the corresponding pay step in the male job class. The majority clearly wanted to avoid this result. It found that section 9(3) was of no application to the circumstances before it because everyone in the female job class had the same job title. Consequently, it concluded that it was not dealing with a job class comprised of different “positions” (which would have been identified by different job titles). For that reason, it concluded that section 9(3) had no application and that the Act was silent with respect to how to treat multi-step pay grids attaching to the female job class. The majority made the following order, which it described as the most “practical”:
Where it is necessary to increase the rate of compensation for a female job class in this bargaining unit, then the incumbents in that female job class will be moved from their present increment level in the range of salary rates, to the same increment level in the range of salary rates for the male job class of comparable value.
At the same time, the Gloucester majority appeared concerned that the implications of its approach might suggest that an employer need only adjust the job rate for a female job class (and make no adjustments to the pay steps for the job class that were below the job rate). It described such a situation as neither “appropriate” nor “acceptable”, but it did not refer to any section of the Act that prohibited it:
In a pay equity plan, the compensation adjustment for incumbents in a female job class is one of the elements that must be bargained by the employer and the bargaining agent. Whatever method of adjustment is agreed to, it must redress systemic gender discrimination in compensation. The method of adjustment must also provide an effective remedy for systemic discrimination in compensation for employees in undervalued female job classes. We do not believe that, for example, it would be an appropriate remedy to deny any compensation adjustments to employees who are below the job rate. Nor do we believe it would be acceptable if the remedy meant that employees in undervalued female job classes would take twice as long to reach the job rate as employees in the comparable male job class. Neither result would be equity. Mere access to the male job rate for the employees in the undervalued female job class is not enough.
The dissenting decision in Gloucester spent a considerable time looking at the legislative history that led to the inclusion of section 9(3) in the Act, and would have found the section applied in the circumstances before the Tribunal. The author of the dissent was particularly concerned about any interpretation of the Act that permitted only the “job rate” to be adjusted and did not require any adjustment to pay steps below the job rate.
In Glengarry, the female job class at issue was that of registered nurse. There were 9 different pay steps attaching to this job class. The male comparator job class had one rate. The employer argued that it only had to adjust the top rate (the job rate) for the registered nurse, and was not required by the Act to adjust any of the 9 pay steps below that. The majority clearly viewed this proposal as contrary to the intention behind section 9(3) of the Act:
Section 9(3) requires that where the rates of compensation for the job class must be adjusted, all positions in the job class must be adjusted by the same dollar amount. Section 9(3) does not permit, as the Employer suggests in this case, that only the job rate for a position be adjusted. Unlike section 13(3) which makes reference to how adjustments are to be made for female job classes with the lowest job rate, section 9(3) makes no reference to job rate. Nor does section 9(3) suggest that different levels on a compensation schedule can be adjusted by different amounts. It requires all positions within a job class to receive the same adjustment in dollar amounts. If section 9(3) protects different positions from discriminatory practices, then it is a reasonable interpretation of section 9(3) to say that it protects salary levels within a position. The whole of the position is protected. Given that position is defined in large measure as having a particular compensation schedule, it is the entire compensation schedule which is adjusted upwards in equal dollar amounts. This interpretation of section 9(3) makes sense, it provides certainty in both the compensation schedule and in the determination of pay equity adjustments.
[…] Section 9(3) was designed to respect existing compensation practices and to ensure that the internal dollar relativity of a wage grid or compensation schedule is maintained. Section 9(3) is a recognition that in large measure, a position is defined by its compensation schedule. It addresses the maintenance of internal relativity of levels of a compensation schedule, while ensuring that dollars directed towards pay equity are made in a non-discriminatory fashion. The Legislature chose to respect the internal dollar relativity of compensation schedules, section 9(3) directs parties to adjust the position in equal dollar terms.
The majority in Glengarry declined to use the same approach as the majority in Gloucester, the effect of which would have been to collapse the nurses’ 9 pay steps to one single rate – the rate paid to the male comparator. Had that occurred, the dollar level adjustment for each of the pay steps would have been different, with the lower steps receiving greater dollar adjustments. The majority clearly was concerned about how disruptive such approach would be to the compensation practices negotiated by the parties:
We might further add, that had the Tribunal applied the tests in Gloucester, supra to these facts, the nurses would not have been deprived of pay equity adjustments. Given the evidence in this case, and based upon the considerations set out in Gloucester, in our view, the result would have been that the nine step salary schedule would be collapsed to match the single step salary schedule of the male job class which was the subject of comparison. Although such an interpretation would have meant greater dollar adjustments for the nurses, we find that it would have extended beyond what section 9(3) provides for, and would have been disruptive to the compensation practices of these parties. We find that our interpretation of section 9(3) respects the integrity of both the requirements of the Pay Equity Act, and the collective agreement negotiations.
The Glengarry majority’s analysis of what “position” means could be clearer. While it did state that “position” cannot be synonymous with either “incumbent” or “job class”, it did not really offer any compelling analysis of what position does mean (as opposed to what it does not mean). Nevertheless the majority concluded that registered nurses all comprised one position, despite the fact that this looks a lot like a conclusion that “position” = “job class”. In any event, the effect of the determination that there was one position of nurse was that each of the 9 steps on the registered nurse pay grid received an equal dollar adjustment:
In assessing the evidence led in this case, the Tribunal adopts the Employer's submission that the registered nurses comprise one position for the purposes of this pay equity plan. The pay equity plan only describes and evaluates one position, that of registered nurse. The plan has not distinguished any different nurse positions by any of the four criteria cited above. No other "positions" were evaluated, or discussed during the pay equity negotiations. Although ONA argued that each nurse comprised a different "position" within the establishment, its evidence was not sufficient to persuade the Tribunal. Applying section 9(3), the Tribunal finds that the registered nurse position, including its entire compensation schedule, must be adjusted upwards in order to meet the requirements of section 9(3).
The outcome in terms of the impact on the pay grid for nurses in Glengarry would have been precisely the same result that would have followed had “position” been interpreted as the complement of the job class – that is the total number of its potential “occupants” or “members”.
The most curious thing about Gloucester and Glengarry is that the majority in each case found that it was dealing with a “job class” comprised of a single “position” with multiple incumbents, and yet one found that section 9(3) applied and one found that it did not.
We agree with the Glengarry majority’s explanation of the purpose of section 9(3) of the Act. It exists to avoid the “achievement” of notional or partial pay equity. It is one of the sections that exemplifies the tensions between focusing on the work while ensuring that the benefits of the legislation also flow to the worker. In its absence, it is possible that there would be no benefit to members of an undervalued job class who were not already paid at the highest rate for that job class. The employer could simply adjust the job rate to equal that of the comparably valued male job class. Section 9(3) prevents notional or partial pay equity by requiring an element of internal relativity in the pay grid attaching to a female job class to be preserved. That relativity might have been preserved by maintaining the ratio of any given pay step within the job class to the job rate, as the Board here proposed, and which the majority in Gloucester essentially found to be acceptable or appropriate. Instead, however, the legislature chose to require that the arithmetic relativity (i.e., the dollar differential) between the steps on the pay grid attaching to a female job class be preserved. This relativity is only preserved on a “snapshot” basis, however, since the fact is that many (if not most) wage increases in unionized workplaces are negotiated or implemented as across-the-board percentage increases. Indeed, that is the nature of the wage increases these parties have negotiated over the years. Percentage increases of course disproportionately benefit higher-paid employees, and will therefore operate to increase the pay equity gap between comparably valued male and female job classes. For an Act that presumes the existence of and aims to redress systemic discrimination in compensation to have explicitly recognized or provided for the pro-rating of adjustments may have been construed as implicitly condoning a compensation practice that could arguably be seen as perpetuating the mischief the Act is aimed at redressing and indeed possibly violating the prohibition in section 7(2).
It is our view that “position” as used throughout the Act has one consistent meaning – that is, it refers to the work that it is contemplated that any one individual employee will perform. A “position” may be filled (in which case it has a “member” or “occupant” or “incumbent”) or it may be vacant. There cannot ever be more than one incumbent of a position on our analysis. It follows that we do not agree with the majority’s determination in Glengarry that there was one “position” of registered nurse with multiple incumbents. We do, however, agree with the result in that case, which is that the pay step applicable to any current or potential occupant of the registered nurse job class had to be adjusted by an equal dollar amount.
We do not agree in any respect with the majority’s approach in Gloucester. Given the various sections of the Act in which the term “position” is used, and particularly section 1(6), it simply is not possible to conclude that what distinguishes one “position” from another is its job title, nor is it possible to conclude that a position may have more than one incumbent.
We want to briefly address the decision in Brant Haldimand Norfolk Catholic District School Board, supra. This case was not about how to adjust a pay grid. Rather, it involved a question as to the calculation of the retroactive pay equity adjustments owing to the former sole incumbent of a female job class, where that job class was only ever intended to have one incumbent – it was a single-position job class. Only the employer attended the hearing. The evidence was that a multi-step pay grid attached to the single-position female job class, in which each step was expressed as a percentage of the maximum available rate. The job rate for the female job class was less than that of the comparably-valued male job class. The Tribunal found that it was acceptable to calculate the retroactive pay owing to the employee on account of pay equity in any given year as a percentage of the maximum available adjustment, where that percentage reflected the relationship between her salary rate in that year and the maximum salary for her position. The Tribunal commented only briefly in its decision on Glengarry and Gloucester, and noted that its approach was consistent with what the majority did in the latter, and was also consistent with the rationale of the decision in the former.
It was put to us in argument in this case, that the Glengarry decision stands for the proposition that each “level” (i.e. – step) of a multi-step pay grid is a “position”. We do not think it tenable that a step on a pay grid be considered a position, but in any event, the decision does not say that – what it does say (as reproduced earlier) is that the registered nurses are one position. We have already noted the puzzling fact that the Gloucester panel also appeared to conclude that it was dealing with a single “position”. The Board argued before us that we are also dealing with single position (i.e. single-title) job classes in this case as if that were conclusive of the matter before us. We do not see how our acceptance of that proposition (which we do not accept) would necessarily compel us to follow Gloucester and not Glengarry.
While the consequences of the Glengarry decision would have been the same had the majority determined that “salary level” = “position”, that is not in fact what was said in the decision. Furthermore, the result (as we have already noted) would also have been the same had the panel construed “position” as the work that may be performed by any one individual employee. Indeed, the result in the Brant Haldimand Norfolk Catholic District School Board case does not contravene section 9(3) so long as “position” is the bundle of duties and responsibilities performed by any one employee. That case, as noted above, dealt with the adjustments owing, from year to year, to the occupant (or “member” or “incumbent”) of a one-position job class. Accordingly, it cannot be said that any other position in that job class had its rate of pay adjusted by a different dollar amount thereby violating section 9(3).
For all of the above reasons, we find that the pro-rated adjustments proposed by the Board in this case are not permitted under the Act.
Order
- The parties are directed to meet and endeavour to agree on a methodology for pay equity adjustments consistent with this decision. In accordance with the parties’ agreement, we remain seized with respect to any implementation issues arising from this decision.
Dated at Toronto this 31st day of July, 2009.
“Mary Anne McKellar”
Mary Anne McKellar, Vice-Chair
“Margaret Kvetan”
Margaret Kvetan, Member
“Pauline R. Seville”
Pauline R. Seville, Member

