0020-09-PE Phung Kim Quach, Applicant v. St. Christopher House and Canadian Union of Public Employees, Local 3393, Respondents.

BEFORE: Patrick Kelly, Chair, Pauline R. Seville and Margaret Kvetan, Members.

APPEARANCES: Phung Kim Quach appearing on her own behalf; Maureen Fair and Simone Cusenza appearing for St. Christopher House; Steve Lillico, Ivan Burbano, Judy Snively and Matthew Graves appearing for Canadian Union of Public Employees, Local 3393.

DECISION OF THE TRIBUNAL: September 25, 2009

1. This is an application to the Pay Equity Hearings Tribunal under subsection 24(6) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”).

2. The essence of the case has, in our view, been fairly described in the Tribunal’s previous decision dated May 25, 2009. In that decision, the Tribunal wrote:

2. Ms. Quach filed a complaint with Review Services of the Pay Equity Commission on December 12, 2007. At that time, Ms. Quach had a number of complaints including that pay equity was not being maintained in the workplace and she had been unfairly disciplined as a result of asking questions about pay equity.

3. A Review Officer looked into Ms. Quach’s complaint and issued an Order on September 26, 2008. The Review Officer concluded that the discipline imposed on Ms. Quach related to her conflict with her new manager and not to anti-pay equity animus on the part of her employer. The Review Officer further found that there had been a pay equity plan in the workplace but it had been lost. The Review Officer accepted that the union and the employer were in negotiations for a renewal pay equity plan and that Ms. Quach’s concerns regarding the manner in which her job was evaluated and pay equity for her job class would be dealt with at that time. As a result, the Review Officer found this aspect of Ms. Quach’s complaint to be premature.

4. Ms. Quach filed an application with the Tribunal on April 15, 2009. In this application Ms. Quach appears to raise the following concerns:

(i) the Review Officer did not deal with all of her concerns;

(ii) relying on section 5 of the Act, Ms. Quach states that her job has been improperly valued;

(iii) relying on section 7 of the Act, Ms. Quach disputes that there ever was a pay equity plan in existence and states that the employer and the Union have failed to show the plan and the comparison method used;

(iv) Ms. Quach relies on sections 14, and 21.3(1) and (3) and states that her job has not been properly valued and improper comparisons have been made.

5. The Canadian Union of Public Employees and its Local 3393 (“CUPE” or the “union”) filed a response to the application on or about May 8, 2009. CUPE requests that the application be dismissed on the basis that, even if all of the facts as stated in the application were assumed to be true, there would be no basis on which to grant the application. CUPE further states that it is unable to fully respond to the application as the issues have not been clearly identified and it is unclear what Ms. Quach is requesting in the remedy section of her application. CUPE states that negotiations between the union and the employer for an amended pay equity plan are continuing.

6. St. Christopher House (the “employer”) filed a response to the application on May 15, 2009. St. Christopher House asserts that there was a pay equity plan in place that was posted in the early 1990’s but it cannot be located. As a result, the employer and the union are in negotiations to prepare a new pay equity plan. The employer asserts that Minutes of Settlement were entered into with Ms. Quach dated June 12, 2008 as a result of which all of her complaints, including those under the Act, were settled. As part of this settlement, it was agreed that Ms. Quach would remain eligible for any retroactive pay equity adjustments, if the new pay equity plan determined that a pay equity adjustment was owed by the employer to employees, including Ms. Quach. The employer submits that by way of this application, Ms. Quach attempts to revisit her pay equity complaint which is unfounded, does not give rise to a prima facie case and violates the terms of the settlement.

3. (We note that “the Order” referred to in paragraph 3 of the Tribunal’s May 25, 2009 decision was characterized by the Review Officer as a “Notice of Decision”. In it the Review Officer specifically declined to make any Order.)

4. The Tribunal went on in the decision to describe a number of issues for resolution by the parties in a pre-hearing consultation, namely:

(i) obtain clarification from Ms. Quach as to what she is complaining about and what she wants by way of a remedy;

(ii) determine whether the remedy sought by Ms. Quach is not already in progress as a result of the ongoing negotiations between the employer and the union to develop a new pay equity plan and the agreement as set out in the Minutes of Settlement that she will receive any pay equity adjustments that are determined to be owing;

(iii) determine whether the matter can be settled as between the parties;

(iv) should no settlement be reached, a list of issues will be prepared including those issues raised by the employer and the union in their submissions and potentially a further issue of whether, as a bargaining unit member, Ms. Quach can advance her complaints;

(v) determine the order in which the issues will be dealt with by the Tribunal; and,

(vi) reach understandings as to the exchange of documents and witness lists.

5. The pre-hearing consultation was conducted on June 17, 2009. None of the issues identified in the Tribunal’s May 25, 2009 were resolved.

6. At the outset of the hearing on August 12, 2009, the Tribunal requested each party to make an opening statement, including comments with respect to the issues raised in the May 25, 2009 decision.

7. The applicant read from a prepared statement. The statement, though less than cogent, helps somewhat to clarify what Ms. Quach is complaining about and what she wants to obtain by way of remedy. In terms of the substance of the complaint, we summarize her concerns as follows:

i. The Review Officer erroneously concluded that a pay equity plan had been posted in the workplace and then had been lost;

ii. The applicant’s position has not been the subject of any job-to-job comparisons pursuant to the Act, and the applicant has not been paid a salary that is proportionate to the value of her job.

iii. The Review Officer was wrong that Ms. Quach had not been the subject of a reprisal under the Act;

iv. The Review Officer erred in concluding that a conflict between the applicant and her supervisor was not the result of anti-pay equity animus on the part of the employer against the applicant;

v. The Review Officer was biased in favour of the responding parties;

vi. The responding party employer (“the employer”) made unilateral changes to the applicant’s job duties, and the responding party union (“the union”) did nothing to challenge the employer, thus breaching its duty of fair representation;

8. It would appear that, in essence, Ms. Quach feels that she has been underpaid in her employment with the employer despite her professional education and training, and she wants by way of remedy to receive retroactive compensation.

9. Ms. Quach acknowledged that she was a signatory to minutes of settlement dated June 12, 2008 (“the settlement”) arising out of a grievance that was filed by the union challenging certain discipline imposed by the employer against the applicant. The settlement contains a confidentiality clause restricting the parties from making disclosure of its terms except as “otherwise required by law”. In keeping with the spirit of that commitment, we will describe only those portions of the settlement that bear upon the issues in this dispute. In that regard, we note that in the preamble to the settlement, the parties undertook to settle not only the grievance itself but several other disputes (referred to in the settlement as “the Proceedings”), including the applicant’s December 12, 2007 complaint under the Act which resulted in the Review Officer’s September 26, 2008 Notice of Decision described above. At the time that the settlement was entered into, of course, the Notice of Decision had not issued.

10. Under the terms of the settlement, Ms. Quach received a substantial sum of money from the employer. It is necessary for the purposes of this decision to set out in detail what the applicant gave up in return for that money. Paragraphs 7, 8 and 9 of the settlement, with redactions in paragraph 9 of the names of individuals against whom the applicant had made complaints, read:

7. The Grievor acknowledges that the payment described in paragraph 2 is inclusive of and exhaustive of all claims and entitlements required pursuant to the Collective Agreement, Employment Standards Act, the Human Rights Code and all other employment related statutes or laws, with the sole exception of any Pay Equity adjustment which may be found owing to the Grievor for any period of her employment prior to her resignation herein (the “Pay Equity Exception”).

8. In consideration of the payment described in paragraph 2, the Grievor hereby releases and forever discharges the Employer, its officers, directors, and employees (the “Releasee”), from any and all actions, causes of actions, contracts, covenants, whether express or implied, claims and demands for damages, indemnity, costs, interest, loss or injury of every nature and kind whatsoever and howsoever arising, whether statutory or otherwise, which the Grievor may heretofore have had, may now have, or may hereinafter have against the Releasee, excluding the Pay Equity Exception, but including any claims relating to the Grievor’s employment and the termination of the Grievor’s employment and any and all claims under the Employment Standards Act, the Human Rights Code or at common law.

9. The Grievor hereby agrees to immediately withdraw any and all complaints made against the Employer, [name redacted] and [name redacted] pursuant to the HRPAO, CGAO By Laws, or any other Proceedings. The Grievor agrees to provide a copy of her letters of withdrawal of complaints to the Employer and to take whatever steps as may be necessary and to cooperate and further facilitate the withdrawal of all such complaints or Proceedings, if necessary.

11. We will return to the significance of the settlement in this proceeding later on in the decision. At this point, we turn to the employer’s and the union’s respective positions, which for the most part coincide. Maureen Fair, the employer’s Executive Director since 2008, advised the Tribunal that the employer has had a gender-neutral job evaluation system acceptable to the union since 1987. She further advised that, following a search of the employer’s records in preparation for the hearing in this matter, the employer had uncovered a September 4, 1990 memorandum from the then Executive Director, Gordon Morwood, to the staff of the employer, which the employer considers to be the lost pay equity plan. We set out below the full text of that memorandum:

September 4, 1990

MEMORANDUM

TO: ALL STAFF

FROM: GORDON MORWOOD

RE: PAY EQUITY AT ST. CHRISTOPHER HOUSE

The Pay Equity legislation passed by the provincial government requires all employers to post Pay Equity plans by certain deadlines, depending on the number of employees and designation as private or public sector employer. In order to comply with the legislation and ensure that our pay system is gender bias free, discussion was initiated with the Union/Management Committee in June. The Committee in turn asked the Job Evaluation Committee to act as the Joint Management/Union Committee to negotiate the job comparison system and Pay Equity Plan for the bargaining unit.

The Pay Equity Joint Management/Union Committee is comprised of:

Mary Cordeiro, Donna Danyluk, Ruth Kells (Union)

Bob Ellis, Pam Jolliffe, Gordon Morwoods (Management)

Julie Tang (Secretary)

The Committee also received expert advice from Jarmila Rezler who has much experience in pay equity issues.

The Pay Equity Joint Management/Union Committee met on June 28, 1990 and a brief explanation of the Pay Equity legislation and the impact and application to the agency is given below for your information.

What is Pay Equity?

The government of Ontario proclaimed in 1988 the Pay Equity Act whereby employers in Ontario are legally bound to set up pay equity plans to ensure that male/female compensation is based on the value of work performed, regardless of the sex of person doing the work. If under the act it this [sic] discovered that the pay for women is less than for men doing work of comparable value, pay adjustments must be made to correct the inequity. The Pay Equity Act is based on the assumption that many “traditional women’s jobs” are underpaid when compared to “traditional men’s jobs” of equal value. This assumption is confirmed by valid and relevant statistics.

What is the impact on St. Chris?

St. Christopher House introduced a job evaluation system in 1987 taking into account the “equal pay for equal value” principle for all employees female or male. Job evaluation is a shared responsibility and carried out through the Union/Management Job Evaluation Committee. It has been noted, moreover, that jobs at St. Chris do not follow the “traditional” incumbency line. Men or women can be and are hired into any of our jobs.

How shall we apply the Pay Equity Act at St. Chris?

According to the legislation:

a. The Employer and the Union in unionized workplaces jointly negotiate the Pay Equity Plan for the bargaining unit.

b. Management develops a separate Pay Equity plan for non-union staff.

The Pay Equity Plan

The Pay Equity Plan is a tool by which the Pay Equity legislation is put into operation. It consists of four steps:

1. To determine job content of all jobs within the establishment.

2. To determine the value of each job.

3. To compare male-female job classes in accordance with the intent of the law.

4. To determine monetary adjustments required to achieve male-female pay equity.

Conclusion

The Pay Equity Joint Management/Union Committee noted that St. Christopher House has already in place a system for updating job descriptions, that the Job Evaluation Committee is responsible for evaluating jobs in accordance with established methods and that a system is in place to update evaluations when required.

Following examination of the male/female incumbency in the bargaining unit, the Joint Committee agreed that our job evaluation system is gender bias free, and therefore no monetary adjustment is necessary to achieve male-female pay equity.

The Joint Committee however agreed that the present job evaluation system should be reviewed using the criteria of skill, effort, responsibility and working conditions. Salary adjustments should then be made if necessary based on the evaluation of jobs.

I am pleased that the Joint Committee has confirmed that our pay system is gender bias free. If you have any questions pertaining to the information given above, please address them to any member of the Joint Committee.

12. Ms. Fair also advised the Tribunal that the employer and CUPE have been in negotiations recently with respect to revisions of the pay equity plan and the job evaluation system. Apparently, just prior to the commencement of the hearing on August 12, 2009, Ms. Fair and a representative of the union signed a document entitled, “Joint Terms of Reference for the Gender-Neutral Job Evaluation Plan & Pay Equity Plan” (hereinafter referred to as “the Terms of Reference”), which is attached as an Appendix to this decision. We note that the copy of the Terms of Reference submitted to the Tribunal is either incorrectly paginated or has missing pages 4 and 5.

13. Both Ms. Fair and Mr. Lillico on behalf of the union suggested that the above document forms the foundation for a new pay equity plan that will cover all jobs within the parties’ collective agreement and will be posted in the workplace. Mr. Lillico, in fact, submitted that the above Terms of Reference exceeds the requirements of the Act in that the parties will examine, and if necessary, make pay adjustments, for any job class within the collective agreement, regardless of gender.

14. Mr. Lillico submitted that the application before us is premature given that the employer and the union are committed to reaching a pay equity plan. Furthermore, in light of the settlement to which Ms. Quach was a signatory, the union says that the application fails to disclose a prima facie case of a violation of the Act.

15. We turn now to a consideration of the significance of the settlement in this dispute. In our view, a fair reading of the settlement cannot result in the applicant being left with no recourse before the Tribunal. First of all, we note that Ms. Quach did not specifically agree in the settlement to withdraw her 2007 complaint to the Pay Equity Commission, nor did she agree not to commence an application before the Tribunal. The parties to the settlement reached a compromise in respect of the applicant’s pay equity complaint. Ms. Quach retained the right to pursue a pay equity adjustment which may be found to be owed to her over the course of her many years of employment, up to the date of her resignation, on June 12, 2008. This the parties coined as “the Pay Equity Exception”, and they specifically acknowledged that, in accepting the settlement money, Ms. Quach was not foregoing any right she might have to a pay equity adjustment.

16. However, Ms. Quach’s complaint to the Pay Equity Commission encompassed more than just a concern about an entitlement to a pay equity adjustment in her wages. She also complained of being the subject of a reprisal under the Act, of the employer’s alleged unilateral change in her job duties, unfair discipline and the union’s lack of fair representation. In our view, by entering into the settlement, the applicant was agreeing not to pursue those aspects of her pay equity complaint because they do not pertain to a claim for a pay equity adjustment.

17. As a general rule, parties must be held to the agreements they enter into voluntarily. Otherwise, there will be no basis for trust and fair dealing in workplace dispute resolution, and there will no motivation to avoid litigation. For that reason, we decline to deal with any portions of the applicant’s concerns as enumerated in paragraph 7 above, except those issues associated with subparagraphs (i) and (ii). The applicant is entitled to maintain in this application that no pay equity plan was posted in the workplace, and that she ought to receive a retroactive pay equity adjustment. That accords with a fair reading of the settlement into which she entered with the employer and the union. She is not entitled as a result of the settlement to any relief in respect of subparagraphs (iii), (iv), (v) and (vi) in paragraph 7 of this decision.

18. Next we turn to consider the Gordon Morwood memorandum of September 4, 1990. We fail to see how this could possibly constitute a negotiated pay equity plan, having regard to subsection 1(1)’s definition of “pay equity plan” and to sections 13 and/or 21.6 of the Act. Mr. Morwood’s memorandum asserts that the employer’s joint job evaluation committee examined “the male/female incumbency in the bargaining unit … and agreed that our job evaluation system is gender bias free, and therefore no monetary adjustment is necessary to achieve male-female pay equity.” He goes on to say, however, that the joint job evaluation committee agreed that the job evaluation system should be reviewed using the Act’s criteria (skill, effort, responsibility and working conditions), and that any necessary salary adjustments should then be made. In our view, these statements do not constitute a pay equity plan. In fact, they suggest that, though there was a job evaluation system free of gender bias, there was no pay equity plan at all that corresponded to the Act’s criterion in section 5(1) for determining the value of work. Moreover, Mr. Morwood’s memorandum does not identify any job classes or the extent of their male or female composition. A pay equity plan must at least set out that information. We conclude that the September 4, 1990 memorandum is little more than a statement of intent to make a pay equity plan.

19. Next we turn to the Terms of Reference. The employer and the union submit that this document forms the foundation for the making of a negotiated pay equity plan, and therefore Ms. Quach’s application is premature. We fail to see how the Terms of Reference, on their own, will lead to a negotiated pay equity plan that complies with the Act. For the most part, the Terms of Reference establish rules, guidelines and principles intended to guide a ranking committee consisting of union and employer representatives in the evaluation of jobs. They also establish the creation of a joint steering committee which is responsible for “the terms of reference and for making recommendations to the parties”. Nothing is said, however, with respect to the various elements of a pay equity plan including identification of job classes, as that term is defined in the Act. The union and the employer apparently have not turned their mind to all of the statutory elements of a pay equity plan.

20. What is more concerning, however, are the time lines that the employer and the union have agreed upon with respect to completing the evaluation of part-time and full-time positions in the workplace. It would appear that that process will not be completed until April 1, 2011. A pay equity plan will presumably follow some time after that, but the document makes no reference to any target date. That concerns us because it appears that there never has been a pay equity plan posted for the bargaining unit in this workplace, there ought to have been one in place many years ago, and now the employer and the union have given themselves years rather than months to complete the task.

21. In our view, the application is neither premature nor does it fail to disclose a prima facie case. The applicant contends, and it appears to be the case, that there never was compliance with the Act’s requirement that a pay equity plan be posted. That is more than a prima facie case. The application alleges facts which, if true - and they appear to be so - establish non-compliance with the Act (failure to post a pay equity plan) and could give rise to an obvious order from the Tribunal (to post a pay equity plan that meets the requirements of the Act). If the employer and the union were clearly embarked upon a course of developing a pay equity plan in the very near future, we might agree that there would be no purpose in making further orders. However, that is not the situation. The materials and submissions of the employer and the union tend to do little more than support the applicant’s assertion that a pay equity plan was never posted in the workplace. The applicant, of course, has not made out any basis that she is in fact entitled to any pay equity adjustment. She cannot establish that without a pay equity plan. Whether or not she is so entitled depends upon the outcome of a pay equity plan negotiated by the union and the employer that meets the requirements of the Act.

22. In these circumstances, we decline to dismiss this application on the basis that it is premature or fails to disclose a prima facie case. Instead, we direct the employer and the union to file written submissions why the Tribunal should not order them to negotiate and post in the workplace a pay equity plan in accordance with the Act within six months following such an order, and to provide at that time a copy of the posted plan to Ms. Quach. Those written submissions are to be provided to the Tribunal and to the applicant on or before October 9, 2009. Should neither the employer nor the union make any written submissions within the prescribed time frame, we intend to make the orders herein described without further notice to the parties.

23. The applicant need not file any reply to the submissions of the employer and the union unless the Tribunal otherwise directs.

Dated at Toronto this 25th day of September, 2009.

“Patrick Kelly”

Patrick Kelly, Chair

“Pauline R. Seville”

Pauline Seville, Member

“Margaret Kvetan”

Margaret Kvetan, Member

APPENDIX

JOINT TERMS OF REFERENCE

FOR THE

GENDER-NEUTRAL

JOB EVALUATION PLAN

& PAY EQUITY PLAN

CUPE LOCAL 3393

AND

ST. CHRISTOPHER HOUSE

ARTICLE 1- PURPOSE

a) To carry out a Joint Job Evaluation Program in accordance with the general objectives and principles set out in this agreement pertaining to a Joint Job Evaluation Program between CUPE Local 3393 and St. Christopher House.

b) To jointly implement a single gender-neutral job evaluation plan to achieve Equal Pay for Work of Equal Value for all jobs within CUPE 3393. The plan will include four main factors:

i. Skill

ii. Effort

iii. Responsibility

iv. Working Conditions

c) To maintain the Job Evaluation Program by ensuring:

i. That all part-time positions which have not been evaluated are evaluated according to the Joint Job Evaluation Program by November 1, 2010 unless otherwise agreed between the employer and the union. The parties will negotiate the effective date and timing of increase of all wage adjustments.

ii. That all full-time positions which have not been evaluated will be evaluated by April 1, 201 l(subject to 5.2 c).

iii. To review jobs when there is a change to the job description and upon request.

d) To promote a collaborative process.

e) The money for this Program will be paid by the employer over and above normal wage increases negotiated in collective bargaining. No incumbent will have his or her wages reduced as a result of this process.

ARTICLE 2- DEFINITIONS

The following definitions are to apply to the terms used herein and throughout the Job Evaluation Program.

Benchmark Jobs

'Sample Jobs' which represent a selection of jobs chosen from the classifications covered by the plan. These are used as a basis for comparison under the job evaluation plan.

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Collective Agreement

The collective agreement currently in effect between the employer and CUPE 3393.

Degree Level

The actual measurement levels within each subfactor.

Duty

Is made up of a number of tasks.

Factors

The four main criteria used to measure jobs are skill, effort, responsibility and working conditions.

Gender Neutral

Any practice or program which does not discriminate on the basis of gender

Increment

One of a series of fixed rates on a salary range.

Incumbent

An employee assigned to a job.

Job

Is made up of duties, responsibilities and qualifications that may be assigned to the same job title and held by a single incumbent or a number of incumbents

Job Analysis

The process of determining and recording the tasks and duties of a job and the required skill, effort, responsibility, and working conditions involved in the performance of that job, through the use of supervision, interviews and workplace observations.

Job Description

The written description of a job, which includes a summary, and a listing of the major duties and responsibilities.

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ARTICLE 3- THE JOINT JOB EVALUATION COMMITTEE (Ranking Committee) AND THE JOINT JOB EVALUATION STEERING COMMITTEE (Steering Committee)

3.1 The Ranking Committee shall have representation and participation from both from the employer and the local union at the ranking meetings and regular meetings of the Committee. At the ranking meetings four (4) members will have voting privileges; two (2) members representing the employer and two (2) representatives from the local union and at the regular meetings up to four (4) members representing the employer and up to four (4) members from the local union.

3.2 The Steering Committee shall have equal representation and participation from the parties, consisting of up to four (4). representatives from the employer and up to our (4) representatives from the union which includes representation from the National Union.

3.3 The employer and the union shall each designate one of its representatives to act as Co-chairperson on the Ranking Committee and Steering Committee. The Co-chairpersons are responsible for:

a) The chairing of Committee meetings;

b) The scheduling of regular Committee meetings;

c) Establishing the priority of matters to be acted upon by the Committee.

3.4 Each party may appoint up to two (2) alternate representatives to serve as a replacement for absent members on the Ranking Committee meetings. Alternate members shall have the right to vote only when replacing a regular Committee member who is absent.

3.5 The employer will provide administrative support services to the Committee. These services shall include:

a) The distribution of all Committee correspondence to the Committee Co-chairperson;

b) The preparation and distribution of meeting agendas prior to the meeting;

c) The preparation and distribution of minutes;

d) The preparation and distribution of Committee documents.

3.6 The Union Committee members and any alternates appointed by the Union shall not suffer any loss of pay and seniority for periods of time spent working on the Committee. If required, Union Committee members shall be replaced in their regular jobs for such time as they are working on the Ranking Committee or Steering Committee. The use of replacements is entirely at the discretion of an employee's Unit Director.

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3.7 Union Committee members shall continue to have all rights and privileges of the collective agreement to which the employee would normally be entitled, including any increase that may occur as a result of an evaluation of their present position.

3.8 Job rating decisions shall require a unanimous decision of the full Ranking Committee and shall be final and binding on the parties, subject to the reconsideration procedure set out in Article 6.

3.9 The Ranking Committee shall meet as necessary at a mutually agreed upon time and place. Each member shall receive notice along with the agenda for the meeting. Either party may call a meeting by giving written notice and this meeting shall take place within ten (10) working days of the delivery of the notice to the other party's Co-chairperson. The parties may extend the time limit indicated, if required, by mutual consent.

ARTICLE 4- MANDATE OF THE RANKING COMMITTEE AND STEERING COMMITTEE

4.1 The Ranking Committee shall implement and maintain the Job Evaluation program by:

a) Evaluating all the jobs using the job evaluation plan;

b) Maintaining the integrity of the program;

c) Recording the results and rationale on the Rating Form. Copies of the Rating Form and job description will be provided to the incumbent(s), supervisor and the Unit Director.

d) Ensuring the confidentiality of the rating form.

4.2 The Steering Committee shall be responsible for the terms of reference and for making recommendations to the parties of the Agreement

ARTICLE 5- MAINTAINING THE JOB EVALUATION PROGRAM

5.1 It is the intention of the parties to review jobs when there is a change to the job description and upon request. The employer is responsible to the Ranking Committee for ensuring that the job description is up to date. This is normally done during the annual performance review process with the employee.

5.2 Job Evaluation Procedure for Changed Jobs

Whenever the employer changes the duties and responsibilities of a job or the incumbent(s) feel that the duties and responsibilities of a job have been significantly modified or that the job description does not reflect the duties and responsibilities of the job, the following procedures shall be followed:

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a) Upon request by either the incumbent(s), supervisor or Unit Director, the Unit Director and Human Resources Manager shall proceed to gather accurate, up-to-date information about the job. The revised job description will be reviewed by the incumbent(s) and then presented to the Ranking Committee for ranking;

On a trial basis from the signing of this document to March 31, 2010, another method by which full time and part time employees and supervisors can provide structured input is by completing an optional job analysis questionnaire (Appendix A) within 10 working days of being notified of a job description review. Support, review and approval will be provided by supervisors and Unit Directors.

b) Where the job has changed, the Ranking Committee shall meet to rate each subfactor of the job, and to establish a new rating for the job. The Ranking Committee shall record the results and rationale on the rating form which will be provided to the incumbent(s), supervisor and the Unit Director.

c) The Ranking Committee shall evaluate these requests as they arise. If a job is rated at a pay grade with a salary range higher than the current wage rate for the job, the incumbent's rate of pay, and the rate of any other incumbents in that specific position, shall be adjusted to the higher pay grade on the new salary schedule, retroactive to the date the Job Evaluation Reconsideration Form was submitted with the exception of when an entire set of either full time or part time positions are being reviewed. In cases where the increased wage rate may significantly impact program delivery the effective date and implementation plan of the increase will be discussed between the employer and the union. Furthermore, in cases where the re-evaluation will have a significant impact on an entire class of jobs then the effective date and implementation plan of all wage increases will again be subject to discussion between the employer and the union.

d) If a job is rated at a pay grade with a salary range lower than the current wage rate for the job, all incumbents of such job shall be identified as "green-circled" and shall continue to receive all negotiated increases.

5.3 Job Evaluation Procedure for New Jobs

a) Whenever the employer wishes to establish a new position or classification that has not previously existed, the procedure shall be as outlined in 5.2 above with the exception in this case that the supervisor will draft the job description in collaboration with the Unit Director. The Unit Director will approve the final draft.

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b) The Unit Director and Human Resources Manager shall meet and establish a temporary pay grade for the job, based on the draft job description;

c) Six (6) months after the appointment into the job, the incumbent(s) and the supervisor shall complete and finalize the job description which, following approval by the Unit Director, will be forwarded to the Ranking Committee for ranking.

On a trial basis from the signing of this document to March 31, 2010, another method by which full time employees and supervisors can provide structured input is by completing an optional Job Analysis Questionnaire (Appendix A) within 10 working days of being notified of a job description review.

d) If the pay grade increases as a result of the review, such increase shall be paid to each incumbent effective the date of his/her appointment to the job (subject to 5.2 c)). In the event that the pay grade of the job decreases as the result of this six-month re-examination of the job, the incumbent shall receive full green-circling protection for the duration of his or her tenure in the job.

5.4 In the application of the job evaluation plan, the following general rules apply:

a) It is the content of the job, and not the performance of the incumbent(s) that is being rated;

b) Jobs are evaluated without regard to existing wage rates;

c) Jobs are placed at appropriate degree level in each subfactor by comparing the specific requirements of the job to the subfactor definition and the description of each degree level;

d) No interpolation of subfactor degrees (i.e. mid-points) is permitted;

e) Rating decisions shall include a sore-thumbing process to ensure consistency in committee decisions as much as possible;

f) A Ranking Committee member shall be excused from rating their own job, the position of a direct subordinate or any position where the rating of that job may place them in a conflict of interest situation.

ARTICLE 6- RECONSIDERATION PROCEDURE

6.1 Within ten (10) working days of receipt of the Rating Form the following procedure shall apply:

a) The incumbent(s), supervisor and/or the Unit Director may request reconsideration of the job rating, stating the reason for disagreeing with the rating of the job.

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b) The Ranking Committee shall consider the reconsideration request and make a decision which shall be final and binding upon the parties and all employees affected.

c) The Ranking Committee shall inform the incumbent(s), supervisor and Unit Director of its decision.

d) Adjustments shall be made as per Article 5.2 c) and d).

ARTICLE 7- APPLYING THE RATING TO THE SALARY GRADE

7.1 Job ratings serve to:

a) Group jobs having relatively equivalent point values (this is commonly referred to as banding);

b) Provide the basis upon which wage rate relationships between jobs are established;

c) Measure changes in job content;

7.2 Band wage rates are established in negotiations between management and CUPE Local 3393

7.3 No incumbent will have their grade reduced following the re-evaluation of their job and the establishment of a new wage structure.

ARTICLE 8- SETTLEMENT OF DISAGREEMENTS WITHIN TILE RANKING COMMITTEE

8.1 In the event the Ranking Committee is unable to reach agreement on ranking, the Co-chairpersons of the Committee shall request, within ten (10) working days, that the matter be reviewed by the Steering Committee who shall then subsequently meet within twenty (20) working days.

8.2 The time limits contained in this article may be extended by mutual agreement of the parties.

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For the Employer For the Union

“Maureen Fair” “I. Burbano”

Date: August 12/09 Date: August 12/09

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APPENDIX A

JOB ANALYSIS QUESTIONNAIRE

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APPENDIX B

PROCESS FOR COMPLETING THE JOB

ANALYSIS QUESTIONAIRRE

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