The Windsor Star v. Communications, Energy and Paperworkers Union, Local 517-G, 2009 CanLII 56704

PAY EQUITY HEARINGS TRIBUNAL

2875-08-PE The Windsor Star, Applicant v. Communications, Energy and Paperworkers Union, Local 517-G, Respondent.

3035-08-PE Communications, Energy and Paperworkers Union, Local 517-G, Applicant v. The Windsor Star, Respondent.

BEFORE: Diane L. Gee, Chair, Margaret Kvetan and Pauline Seville, Members.

APPEARANCES: Carolyn Kay and Louise Veres appearing for The Windsor Star; Michael Klug and John Holmes appearing for Communications, Energy and Paperworkers Union Local 517-G.

DECISION OF THE TRIBUNAL: October 19, 2009

1. The Communication, Energy and Paperworkers Union (CEP), Local 517-G is the bargaining agent for a bargaining unit of employees of Windsor Star Southam Press in its Electronic Pre-Press Department in the City of Windsor. For ease of reference, Communication, Energy and Paperworkers Union (CEP), Local 517-G is referred to in this decision as the “Union” or “CEP Local 517”; Windsor Star Southam Press is referred to as the “Employer” or “Windsor Star”; and the Electronic Pre-Press Department is referred to as the “EPP Department”. The Union and the Windsor Star have each filed applications with the Pay Equity Hearings Tribunal (Files 2875-08-PE and 3035-08-PE respectively) challenging a Review Officer Order dated November 12, 2008.

2. The issue between the parties is whether EPP operator positions constitute one or more “job classes”. The definition of “job class” as set out in section 1 of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (the “Act”) is as follows:

“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.

3. The issue arises due to the fact that some individuals in the EPP operator position are paid the negotiated wage rate for the EPP operator classification as set out in the main body of the collective agreement (the “negotiated wage rate”) whereas other individuals in the EPP operator classification are, pursuant to the terms of a Letter of Understanding, paid the wage rate that applied to their previous position and continue to receive negotiated increases in that rate of pay. The practice of preserving an individual’s rate of pay when their position is downgraded and permitting them to receive negotiated increases in that rate of pay is a practice that is commonly referred to as “gold-circling”. The “negotiated wage rate” is less than the “gold-circled rates” by a substantial amount. Those earning the negotiated wage rate are predominantly female whereas those earning the gold-circled rates are male.

4. At the commencement of the hearing, the parties provided the Tribunal with the following Agreed Statement of Facts.

AGREED STATEMENT OF FACTS

1. The Employer, the Windsor Star is a private sector employer.

2. The Employer publishes a daily newspaper in Windsor, Ontario with a daily paid circulation in excess of 68,000 copies.

3. The Union is the Communication, Energy & Paperworkers Union, Local 517-G (“the CEP Local 517”).

4. The Graphic Communications International Union Local 517 (“GCIU Local 517”) was the predecessor union of the CEP Local 517. The CEP Local 517 succeeded GCIU Local 517 on or about [date].

5. The dispute between the parties relates to the issue of “job classes” within the Employer’s Electronic Pre-Press (EPP) Department and the gender dominance of the job class or classes.

6. The Employer states that in the early 1990s, employees of the Windsor Star were represented by four different unions and covered by nine collective agreements. Generally, the bargaining units were defined by the type of work being performed and the respective departments:

Bargaining Unit	Classifications in Bargaining Unit	Bargaining Agent
Engraving	Photoengraver	GCIU Local N- 517
Composing (i.e. Typographical)	Compositor	ITU/CWA
Mailer	Mailer	ITU/CWA
Part-time Jumpers	Part-time Jumpers	ITU/CWA
Inserters	Inserters	ITU/CWA
Drivers	Drivers	GCIU Local N-1
Press room	Press operators, Paperhandlers,	GCIU Local N-1
Editorial/Circulation	EDITORIAL: GP 1: Assist. Metro Editor, Night News Editor, Lifestyles Editor, Entertainment Editor, Saturday Features Editor, Special Projects Editor, Assistant Photo Editor GP 2: Opposite Editorial Page Editor, Copy Desk Chief, Columnist GP 3a: Ottawa Bureau Reporter, Toronto Bureau Reporter, Senior Writer 3b: Assistant Sports Editor, Assistant Night News Editor, Editorial Writer, Editorial Cartoonist, Entertainment Writer/Reviewer, Systems Coordinator, TV Times Editor, Book Page/Religion Editor, Art Coordinator GP 4a: Telegraph Editor, Photo Supervisor, Assist Copy Desk Chief GP 4b: Swingman, Saturday Layout Editor, Sports Layout Editor, Lifestyles Layout Editor GP 5: Copy editor, artist GP 6: Reporter, Photographer GP 7: Library Assist. Editorial Assist. GP 8: Editorial Clerk CIRCULATION GP 1: District Manager GP 2: District Mgr. Assist. GP 3: General Office Clerk GP 4: Circulation Clerk	The Windsor Newspaper Guild
Business Office	GP 1: Accounting Clerk 1, Senior Cashier GP 2: Accounting Clerk 2 GP 3: Credit Clerk, Assist. Cashier, Switchboard Operator	The Windsor Newspaper Guild

7. Tab A is a copy of the collective agreement in effect in 1994 with respect to the Engraving Department. Either the CEP Local 517 or GCIU Local 517 has continued to represent employees in the Engraving Department throughout since 1994.

8. Tab B is a copy of the collective agreement in effect in 1994 between the Employer and the CWA/ITU with respect to the Composing Department.

9. In 1993 the Employer commenced discussions about the creation of the EPP Department. The Department’s employees would perform, in a substantially different manner with new technology, some of the functions which were then being performed by employees in the Engraving and Composing Departments (if not other Departments as well). At that time, a dispute arose between the GCIU and the Windsor Newspaper Guild, as to which of them would have jurisdiction over the new EPP department.

10. In January 1994 the Employer advised the unions that the EPP project would be suspended while the jurisdictional issues were being sorted out. When no resolve was apparent, the employer went ahead and posted for applicants for the EPP department in April 1994. Tab C is a copy of the posting.

11. That is, in early 1994 the Employer decided to follow through with its restructuring plans. Specifically at or around this time the Employer’s Composing Department was closed and its Engraving Department was significantly downsized, at least in part, as a result of the introduction of new technology, including the introduction of EPP technology.

12. Also in 1994, the Employer decided to restructure its trucking fleet, which resulted in a reduction in the number of its employees performing work under the GCIU Local 1 drivers’ collective agreement.

13. Ultimately, the Employer and some of the unions at least agreed, in respect of this restructuring/departmental closure, that certain employees affected would be given a guarantee of future employment with the Employer and these employees would continue to receive their existing wage rates on transfer to a different bargaining unit plus any collectively bargained percentage wage increase which was subsequently negotiated in respect of their new bargaining unit. In particular, such agreements were reached with the predecessor Unions in respect of employees in the former Engraving and Composing departments: GCIU Local 517 was party to the Engraving agreement; ITU/CWA agreed to the compositors arrangement.

14. The collective agreement between the GCIU Local 517 and the Employer relating to the Engraving Department which was applicable in April 1994 provided at article 22 that certain full-time employees would not “lose employment as a result of technological change” and further if these employees were “transferred to another department as a result of technological change… [they would] continue to be paid not less than the prevailing engraver rate of pay as agreed to in this collective agreement” (Tab A, page 17).

15. The then applicable collective agreement between the CWA/ITU and the Employer relating to the Composing Department also provided substantial protection to employees in the event of technological change. See Tab B, pages 8 and 42-43.

16. In response to the April 1994 posting (Tab C), the following employees applied for the new EPP positions, were interviewed and were awarded the position:

Employee	Position at the time of applying	Fomer Bargaining Agent, if any
Patty Bachmeir	Part-time Clerk II – Advertising Department	Non-Union
Tammy Edmunds	Part-time Clerk II – Advertising Department	Non-Union
Kelly Gutz	Part-time Clerk II – Advertising Department	Non-Union
Susan Patterson	Part-time Library – Editorial Department	Guild
Dave Bugler	Engraver	GCIU Local 517
Paul Martin	Engraver	GCIU Local 517
Bill Newbold	Engraver	GCIU Local 517

17. Tab D is a copy of the letter dated May 7, 1994 to each of the above-named individuals confirming employment in the EPP Operator position.

18. Employees began working in the EPP department on May 23, 1994. In view of the on-going dispute over which of the unions at the Windsor Star, if any, would represent the employees in the EPP department, the Employer proceeded as if such employees were not then represented by any union. For all purposes related to this proceeding, the CEP Local 517 acknowledges that no union held bargaining rights in respect of the work done in the EPP department before the October 1994 certification its predecessor the GCIU 517, of which more is said below.

19. When the department began operating in May 1994, the starting rate for the EPP position was set at $535.00 per week by the Employer, however, in all letters confirming appointment to the EPP Operator position employees were advised: “If you currently earn more than [$535.00] your salary will not be reduced.” This commitment applied to every internal applicant who applied to the posted positions.

20. When the EPP department began operation in May 1994 the following employees were working as EPP Operators. For all purposes relevant to these Applications, they were all performing the same work :

Name	Gender	Weekly Rate prior to transfer	Weekly Rate at time of transfer
Patty Bachmeir	F	$519	$535
Tammy Edmunds	F	$519	$535
Kelly Gutz (Jones)	F	$519	$535
Susan Patterson	F	$572.25	$572.25
Dave Bugler	M	$944.33 days $967.88 nights	$944.33 days $967.88 nights
Paul Martin	M	Same as Bugler	Same as Bugler
Bill Newbold	M	$925.82 days $949.96 nights	$925.82 days $949.96 nights

21. After a series of hearings both at the Ontario Labour Relations Board and arbitration, in October 1994 the GCIU Local 517 was certified by the OLRB as the bargaining agent of the EPP Operator bargaining unit.

22. After the OLRB certification, negotiations began between the GCIU Local 517 and the Employer with respect to a first collective agreement which was ultimately settled and made effective from the date of ratification, July 15, 1995: Tab E.

23. Prior to that ratification, on or about February 13, 1995, Ken Cavanaugh, who had been employed in the Composing Department, was offered and accepted a position in the EPP department. A letter was provided by the Employer to Mr. Cavanaugh (and others employed in the closing Composing Department) in around this time frame which letter provided that he would not “experience a reduction in hourly rate of pay as a result of the transfer and will receive future percentage increases negotiated with the Joint Council” (see Tab F) which Council comprises the unions representing the Employer’s employees, which have historically at least in part collectively bargained jointly. Also relevant to former compositors, like Cavanaugh, is the March 21, 1996 agreement between the CWA/ITU at Tab J.

24. Also by the time of the effective date of the first EPP collective agreement, Bill Newbold was no longer employed in the Employer’s EPP department.

25. In that first EPP collective agreement, the parties agreed at article 4 thereof on a weekly rate for an EPP operator of $675 for the day shift and $730.13 for the night shift, but also entered into a Letter of Understanding (attached to the collective agreement at pages 19 and 20) which dealt with the “Future Compensation of Paul Martin, Dave Bugler and Ken Cavanaugh.” The Employer has complied with this Letter of Understanding and the renewals thereof since July 15, 1995 to date.

26. As a result, at the time the first collective agreement was entered into, all employees subject thereto (including Susan Patterson whose rate on commencement in the EPP department had been surpassed by that point by the rate the parties agreed to in Article 4 of their initial collective agreement) were paid at the $675 or $730 per week rate except for Martin, Bugler and Cavanaugh, who thereafter continued to be paid in accordance with the aforementioned Letter of Understanding.

27. Since the first collective agreement, the parties have entered into renewal collective agreements every few years. In every such renewal collective agreement, the parties have agreed to an across-the-board wage increase which has been applied to increase the wage rates set out in Article 4 thereof and have also renewed the Letter of Understanding regarding the “Future Compensation of Paul Martin, Dave Bugler and Ken Cavanaugh”, which LOU has been included in precisely the same form in every collective agreement subsequent to the first one. In every round of bargaining, the across-the-board per cent increase agreed upon for other employees in the EPP Department has been awarded equally to Martin, Bugler and Cavanaugh as well in accordance with the negotiated Letters of Understanding.

28. After start up, with the exception of Martin, Bugler and Cavanaugh and two others exceptions noted below, all employees who have been hired into the EPP department have been paid the rate of pay set out in Article 4 of the then applicable collective agreements. This includes both internal and external applicants to job advertisements.

29. The two other exceptions are Mr. M. Walker and Mr. S. Dent, both of whom transferred into the EPP Department in or around January 1997. Both of these employees had been drivers, and thus members of GCIU Local 1. Both were affected by an agreement dated April 26, 1994 (Tab G) between that local union and the Employer. Pursuant to that agreement, these two employees first started worked in the Engraving Department in 1994 or 1995 before they commenced working in the EPP Department in January 1997.

30. When Walker and Dent first commenced working in the EPP department their rate of pay under the Engraving collective agreement was maintained, which rate was higher than the rate EPP employees (other than Martin, Bugler and Cavanaugh) were being paid in accordance with Article 4 of then applicable collective agreement. In accordance with existing agreement(s), Walker and Dent have likewise, since January 1997, received the same annual across-the-board per cent increases as all other employees subject to the EPP collective agreement.

31. The parties agree that there has existed at all material times and does exist now a binding agreement or agreements which did provide and now provides the same wage protection to Walker and Dent as is/was enjoyed by Martin, Bugler and Cavanaugh.

32. There is no formal certification required to work as an EPP operator and when initially staffing the Department in 1994 the Employer looked only for individuals with the basic qualification of “experience or a keen interest in computers.” For all applicants, “an interest in electronic image processing” was considered to be “an asset.” For all purposes relevant to this Application, all employees working in the EPP Department have received the same training and have performed the same duties and responsibilities since its inception. The individuals share one work schedule and vacation schedule.

33. Now when the employer is recruiting into the position it looks to see if the applicant has desk top publishing or like experience.

34. No pay equity plan has ever been prepared or posted in respect of the EPP bargaining unit.

35. Ms. Louise Veres began working at Windsor Star in October 1988 and became Human Resources Director in January 1999. Ms. Veres approached Mr. John Holmes, President of the Union, about pay equity in July 2003 and followed up in 2004 seeking agreement from the Union that the job class of EPP Operator was gender neutral.

36. Mr. Holmes subsequently advised of the Union’s position that there was a female job class in the EPP bargaining unit because of the grandparented EPP Operators being paid at a higher rate.

37. In response to that, Ms. Veres wrote to Mr. Holmes on April 17, 2006 outlining the employer’s position that there was only one job class of EPP Operator: Tab H.

38. When the parties were unable to reach agreement on the issue, the Application to Review Services was then filed with the Pay Equity Commission on September 28, 2006.

39. The Review Officer issued her Order dated November 12, 2008.

40. The Employer maintains that there is only one EPP Operator job class and that was and is gender neutral having regard to the statutory criteria of the Pay Equity Act.

41. The Union maintains that there are at least two separate job classes, one of which is female-dominated, the other male-dominated.

42. Tab I is a listing of all full and part-time employees in the EPP Operator position since 1994 to date.

43. Specifically, it is noted that Mr. Dent left the EPP Department in or around September 1997, approximately 8 months after he started in it. Bugler retired in or around 2001. There are 3 remaining grand-parented employees: Martin, Cavanaugh and Walker. Edmunds and Patterson have remained employed in EPP throughout. Bachmeir and Gutz left the EPP in [date] 1994.The grandparented individuals who have retired etc., have been replaced by individuals, if any, who have been paid in accordance with Article 4 of the collective agreements applicable to EPP Operators at the relevant time, unless they were replaced by another grandparented employee identified herein.

44. The gender and dates of employment of the other EPP employees not yet referenced herein is as follows:

T. Gray – male. March 1995 to date.

K. O’Brien – female. April 1995 to June 2005.

J. Doherty – male. May 1999 to December 2002.

J. Chang – male. February 2003 to March 2005.

G. Mladenovic – female. March 2005 to date.

M. Richards – male. March 2005 to date.

5. At the hearing, the parties provided the Tribunal with the following additional agreed facts. Historically, prior to the 1994 departmental closure/restructuring, employees covered by the Engravers and Composing Room collective agreements were overwhelmingly male and clerks in the advertising department and the library were overwhelmingly female. Finally, the parties agree that part-time employees do not constitute a separate job class. There are no, and have been no, part-time grandfathered employees; all part-timers are and have been paid in accordance with article 4 of the EPP collective agreement.

6. At the risk of being repetitive, additional facts taken from the documents referred to in the Agreed Statement of Facts are as follows.

7. The EPP bargaining unit consists of only one classification – that of EPP operator. The Engraving Department collective agreement that was in effect at the time of the creation of the EPP Department contained the following provision:

ARTICLE 22 TECHNOLOGICAL CHANGE:

22.01 The Company guarantees that no regular full-time situation holder employed by The Windsor Star as of March 5, 1984, will lose employment as the result of technological change.

If the employee guaranteed under the above provision is transferred to another department as a result of the technological change, he will continue to be paid not less than the prevailing engraver rate of pay as agreed to in this Collective Agreement.

8. According to article 22, the employees in the Engraving Department bargaining unit who are, as a result of a technological change, transferred to another department are entitled to continue to be paid not less than the “prevailing engraver rate of pay”.

9. The Composing Department collective agreement that was in effect at the time of the creation of the EPP Department contained an agreement pursuant to which the Employer guaranteed that no regular full-time employee covered by the Composing Department Agreement would lose employment as a result of Technological Change. The agreement provided as follows:

If an employee is transferred to another department, he will continue to be paid not less than the prevailing union rate of pay as agreed to in the collective agreement and shall continue to be covered by this Agreement until such time as the employee is covered by the applicable collective agreement involved.

10. On April 18, 1994 the Employer posted a notice to all staff advising them that applications in the new EPP Department were being accepted. On May 9, 1994 the successful applicants were advised that their starting salary would be $535.00 per week, however, the letter went on to state “if you are currently earning more than this your salary will not be reduced.” No union represented the EPP Department at this time. All successful applicants to the EPP Department were paid $535.00 per week or their prior rate of pay if it was higher. This applied to all successful applicants and not only those from the Engraving and Composing Departments. No union represented the EPP Department at this time and there was no agreement in place with the Union that provided for the gold-circling of wage rates.

11. The first collective agreement that was negotiated between the Graphic Communications International Union Local 517M (the “GCUI”) and The Windsor Star for the EPP Department contained the following Article in respect of Wage Rates:

ARTICLE 4 WAGE RATES:

4.01 The salary grid for operators is as follows:

Day Rate $675.00 per 37.5 hour week or $18.00 per hour

Night Rate $730.13 per 37.5 hour week or $19.47 per hour

The weekly rate of pay for an apprentice (trainee) E.P.P. Operator shall be based on the E.P.P. Operator rate as follows:

Start 75%

After 6 months 83%

After 1 year ` 91%

After 2 Years 100%

12. In addition, the first EPP collective agreement contained a Letter of Understanding that provided that the employees named therein “who have transferred into the Electronic Pre-Press Department from another department will not experience a reduction in hourly rate of pay as a result of the transfer and will receive future percentage increases negotiated with the Joint Council.” Three employees, all men, are named in the Letter of Understanding. The weekly salaries that they would retain, subject to future increases, while working in the EPP Operator classification on days, were $972.45; $944.34 and $995.04. This Letter of Understanding has been renewed in every EPP Collective Agreement with changes as described in the Agreed Statement of Facts to the names of the employees covered. Some employees have left the Windsor Star and their names have been removed from the Letter of Understanding; employees who transferred to the EPP operator position from higher paying positions have been added to the Letter of Understanding.

13. In 1997 there were cutbacks in the drivers’ bargaining unit. A Memorandum of Agreement was entered into between the Employer and the drivers’ bargaining agent pursuant to which the Employer agreed to provide the drivers with full-time positions elsewhere in the newspaper. The Memorandum of Agreement further provided:

The Company agrees that there will be no reduction in hourly rate for any of the six affected employees due to this transfer. An employee assuming a position with a lower rate or entering the Pressroom or the Engraving Department apprenticeship program will continue to receive their present rate until such time as the rate in their new classification catches up to their present rate.

14. This provision, preserving the employee’s wage rate but not providing for future increases until the rate in their new classification catches up to the rate that they are being paid is known as “red-circling”.

15. Two drivers were transferred into the EPP Department. Their names have been added to the Memorandum of Agreement in the EPP Collective Agreement providing for the gold-circling of wage rates and their wages have in fact been gold-circled.

16. All of the EPP operators perform the same functions, have received the same training, and have the same work and vacation schedules.

17. In her Order of November 12, 2008, the Review Officer determined that those earning gold-circled rates were not in the EPP Operator job class on the basis that their compensation continues to be determined as if they were still in their (now redundant) job classes. The Review Officer further determined that those compensated at the negotiated wage rate for the EPP operator position are, for the purposes of establishing gender composition in a job class, the only incumbents in the EPP Operator job class. The Review Officer was of the view that it is only these employees whose compensation is tied to the value of the work of the EPP Operator job class.

18. At the hearing, the Employer advanced its submissions first. The Employer argues that there is a single EPP operator “position” for which there is a single compensation schedule that can be found in the collective agreement. The Employer submits that the Tribunal’s decision in Ontario Secondary School Teachers’ Federation representing the EA/OCT/CYW Bargaining Unit v. Brant Haldimand-Norfolk Catholic District School Board, 2009 CanLII 41201 (ON P.E.H.T.) (hereinafter “Brant”) wherein the Tribunal determined 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” is incorrect or, in the alternative, given that it concerns section 9(3) of the Act, does not apply. The Employer asserts that, the Tribunal’s determination in Brant must be incorrect as, if the determination were to be applied to the facts in the case of Glengarry Memorial Hospital (No. 2) (1992), 3 P.E.R. 34, the only employee to benefit from pay equity would have been the one female employee in the female dominated job class who was at the lowest point on the salary schedule as she was the only employee to be earning less money than the male in the male comparator job class who was earning the least amount of money on the salary schedule that applied to his job class. The Employer argues that the Tribunal is not bound by earlier interpretations of “position”. The Employer urges that the meaning of the term “position” should be taken from the context of the provision in which it resides.

19. It is argued by the Employer that “position” does not mean “incumbent” as the criteria listed in the definition of “job class” can only apply to a “position” and cannot apply to an “incumbent”.

20. The Employer argues that the “job rate” for a “position” is set by the employer. It is argued that, when looking at what compensation rates are to be compared, it has to be compensation that the employer has attached to the work performed and not the rates of pay one brings into the position by way of wage protection agreements. The compensation set by the employer is to be scrutinized to determine if there is systemic discrimination built into the employer’s practices.

21. The Employer further argues that the gold-circled employees do not constitute a separate job class. The Employer disputes that the gold-circled employees are, as found by the Review Officer, still in their old job class. The Employer argues that they have clearly transferred to the EPP operator position and are incumbents of the EPP operator position. The Employer submits that this is especially true where the department the employee last worked in has since closed. In the Employer’s submission, the gold-circled employees are within the EPP operator position as to do otherwise would allow the employees and not the Employer to set the “job rate” for pay equity purposes.

22. Thus, the Employer argues that there is a single position of EPP operator with a single rate set by the Employer and reflected in the collective agreement. The gold-circled employees are not earning a wage that applies to the EPP operator position but they are incumbents in the EPP operator position. As such, the Employer argues there is one position, with one wage rate.

23. The Union submits that whether “position” means the work that it is contemplated would be performed by a single employee (as determined in Brant), or whether it can encompass the work that it is contemplated would be performed by more than one employee, is a red herring. The Union argues that, even if the Employer is right, and “position” can include the work that it is contemplated would be performed by more than one employee, the EPP operator positions must fall into more than one job class as there is not a single compensation schedule, salary grade or range of salary rates.

24. The Union points out that, at the time that The Windsor Star told the successful applicants to the EPP Department that their wage rates would not be reduced, there was no agreement in place with the Union, or any union, to this effect. The agreement with the Union came later.

25. The Union submits that the issue is one of importance. The definition of “job class” is critical to pay equity as pay equity is always to be achieved between job classes. The Union points out that this is a case of first instance as the Tribunal has not considered a similar issue in the past. The Union submits that the issue can be determined on a straightforward reading and interpretation of the Act as well as in a manner that advances the Act’s purposes.

26. The Union argues that there are EPP operator positions that are paid the negotiated wage rate and there are EPP operator positions that are paid a gold-circled wage rate. The two rates are not the same. The gold-circled wage rate is substantially higher than the negotiated wage rate. In addition, as a result of the gold-circling, the wage rates are not converging. Rather, the wage rates are running parallel to one another. Those in the lower paid group are unable to ever achieve the higher wages paid to those in the higher paid group. Thus, the Union submits, it is plain and obvious that there is not a single wage scale.

27. The Union distinguishes cases involving wage scales or wage grids as, in those cases, there is graduation or movement through the scale or grid. All of the range of rates can be achieved by all of the incumbents. In this case, those employees earning the negotiated wage rate have no ability to reach the gold-circled wage rates.

28. The Union points out that the Act contemplates the possibility of red-circling in section 8(1)(d) which provides as follows:

8(1) This Act does not apply so as to prevent the differences in compensation between a female job class and a male job class if the employer is able to show that the difference is a result of,

(d) the personnel practice known as red-circling, where, based on a gender-neutral re-evaluation process, the value of a position has been down-graded and the compensation of the incumbent employee has been frozen or his or her increases in compensation have been curtailed until the compensation for the down-graded position is equivalent to or greater than the compensation payable to the incumbent,….

29. However, the Union points out that gold-circling is not contemplated anywhere in the Act let alone established as an exemption from the manner in which a job class is to be determined. According to the Union, section 8(1)(d) must implicitly mean that positions occupied by incumbents earning a red-circled wage rate are in a different job class from those positions that are paid according to the wage rate set for the position in issue. If such were not the case, section 8(1)(d) would not be necessary.

30. The Union disputes the Employer’s suggestion that, if there is a single position in a job class, there is no need to consider the four factors set out in the definition of job class. The Union points to section 1(6) of the Act wherein it is stated that a job class can 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.” Thus, in determining whether there are one or more positions, the same criteria set out in the definition of “job class” are to be considered.

31. For the reasons that follow, it is the Tribunal’s determination that there is not a single EPP operator job class.

32. The Pay Equity Hearings Tribunal is a statutory tribunal that has only those powers and jurisdiction as are set out in the Pay Equity Act. The Tribunal has no power to unilaterally create exceptions to the Act.

33. The process that the Pay Equity Act dictates must be followed in the development of a pay equity plan is designed to identify where adjustments in compensation are required in order to equalize the compensation paid to female dominated job classes with the compensation paid to male dominated job classes of equal value. The purpose of the Act as set out in section 4(1) is “…to redress systemic gender discrimination in compensation for work performed by employees in female job classes.”

34. The entire process mandated by the Act begins with the identification of “job class(es)”. A determination as to whether a job class is female or male dominated (or gender neutral); job class values; and the identification of job class comparators, all depend upon the initial identification of “job class(es)”. The identification of the job class(es) is a crucial aspect of the pay equity process.

35. The definition of “job class” is worth repeating:

“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.

36. The Employer argues that because the EPP operator position is a single position the four criteria set out in the definition of “job class” do not apply. In the Employer’s submission, the definition of “job class” is only relevant when there are multiple positions in issue. The Tribunal does not accept this proposition.

37. First, as pointed out by the Union, section 1(6) of the Act speaks to the circumstances in which a job class can consist of only one position. Section 1(6) provides as follows:

1(6) One-member job classes – 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.

38. Section 1(6) is clearly talking about a single position. Section 1(6) tells us that a job class may be comprised of only one “position” if its duties, responsibilities, qualifications, recruiting procedures and compensation schedule, salary grade or range of salary rates do not match those of any other position. Section 1(6) speaks of the single position possessing only one set of duties, responsibilities, qualifications, recruiting procedures and compensation schedule, salary grade or range of salary rates. Thus, it is implicit from section 1(6) that a single “position” cannot include positions with dissimilar duties, responsibilities, qualifications, recruiting procedures or compensation schedule, salary grade or range of salary rates.

39. Secondly, given the importance of the determination of what constitutes a job class for pay equity purposes, it would completely undermine the purposes of the Act to find that where a job class is made up of a single position, those within the single position do not have to share the same duties, responsibilities, qualifications, recruiting procedures and compensation schedule, salary grade or range of salary rates. The Employer is essentially arguing that, given the lack of the definition of “position” in the Act, a single “position” can include jobs held by people who are being paid different wage rates. To accede to this argument would enable employers to completely undermine the operation of the Pay Equity Act.

40. Thirdly, there is no doubt that, when a job class is to be composed of more than one position, the definition of job class applies and the positions must share the same duties, responsibilities, qualifications, recruiting procedures and compensation schedule, salary grade or range of salary rates. It would be illogical to conclude that, while multiple positions must have the same duties, responsibilities, qualifications, recruiting procedures and compensation schedule, salary grade or range of salary rates in order to be in the same job class, the jobs found within a single position do not.

41. Finally, and in any event, this panel of the Tribunal concurs with and adopts the Tribunal’s decision in Brant wherein it was determined 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”. We do not agree with the Employer’s argument that the conclusion reached in Brant would result in the female dominated job class employees in the Glengarry Memorial Hospital (No. 2), supra decision having their individual wage rates compared to those of lowest paid individual in the comparator male dominated job class. The Tribunal in Brant did not find that “position” equates to the incumbent in a single position. The Tribunal clearly stated that “position” equates to the “work that it is contemplated that any one individual will perform”. What is relevant for job rate comparison purposes is not the exact wage rate being earned by the incumbent, but the salary schedule that attaches to the work performed. As the Tribunal stated at paragraph 24 of Brant, the outcome “in terms of the impact on the pay grid for the 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’”. While Brant concerned an interpretation of “position” for the purposes of section 9(3) of the Act, we see the Tribunal’s reasoning as set out therein to apply equally to the meaning of “position” as it appears in the context of the definition of “job class”.

42. Thus, it is the Tribunal’s determination that the definition of job class applies to determine whether the position of EPP operator position constitutes one job class or more than one job class.

43. The definition of “job class” indicates that multiple positions can be included in a single job class only if those positions have, amongst other things, the same compensation schedule, salary grade or range of salary rates. There is no doubt that those performing the work of the EPP operator position are not all paid on the same compensation schedule, salary grade or range of salary rates. The Employer argues that the EPP operator position has only one wage rate as it is only the negotiated wage rate that the Employer has agreed to pay based on the Employer’s assessment of the value of the position; the gold-circled incumbents are paid based on the Employer’s assessment of the value of their old position. To find otherwise, argues the Employer, permits the employees to create new job classes by transferring to new positions and taking their old wage rate with them.

44. The Tribunal does not accept that “compensation schedule, salary grade or range of salary grades” means the wage rate that the employer has determined is appropriate based on the employer’s assessment of the value of the position without regard to what the employer actually pays incumbents in the position.

45. First, if an employer could establish a wage rate for a position based on the employer’s assessment of the value of the position but pay higher rates based on some factor other than the value of the job, without the result of there being a separate job class, the entire goal of equalizing the compensation paid to those in female and male dominated job classes of equal value could be undermined. An employer could set a wage rate for positions in a male dominated job class based on the employer’s assessment of the positions’ value, but in fact pay a higher wage rate based on some justification other than job value, and thereby create a lower job rate that an equally valued female dominated job class would be entitled to achieve by way of pay equity adjustments.

46. Secondly, section 8(1)(d) of the Act provides that the Act does not apply so as to prevent differences in “compensation” between a female dominated job class and a male dominated job class where the difference is a result of,

(d) the personnel practice known as red-circling, where, based on a gender-neutral re-evaluation process, the value of a position has been downgraded and the compensation of the incumbent employee has been frozen or his or her increases in compensation have been curtailed until the compensation for the down-graded position is equivalent to or greater than the compensation payable to the incumbent….

47. The effect of section 8(1)(d) is that, if there is a difference in compensation between a female job class and a male job class, but the reason for that difference is “red-circling” the Act does not require the difference in compensation to be eliminated by way of pay equity adjustments. When determining a position’s “compensation”, it must be the case that the actual amount of compensation paid is to be considered, even where it exceeds the wage rate assigned to the position by the employer based on the employer’s assessment of the position’s value, otherwise section 8(1)(d) would not be needed.

48. For the foregoing reasons, it is the Tribunal’s determination that the EPP operator positions do not constitute a single job class. It is the Tribunal’s determination that those EPP operators earning the negotiated wage rate constitute one job class as they share the same duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation. Those EPP operator positions earning gold-circled wages are not in the same job class as those earning the negotiated wage rate as they do not have the same compensation schedule, salary grade or range of salary rates.

49. The Tribunal hereby varies the Review Officer’s order to provide that there is not a single EPP Operator job class.

50. The parties are directed to meet and endeavour to resolve the remaining issues. We remain seized of the issues of whether the job classes are female or male dominated or gender neutral; whether the gold-circled employees constitute more than one job class;

as well as any implementation issues arising from this decision. In the absence of a request from the parties that the Tribunal determine further issues, the parties are directed to negotiate an amended pay equity plan for the bargaining unit within six months of the date of this decision.

Dated at Toronto this 19th day of October, 2009.

“Diane L. Gee”

Diane L. Gee, Chair

“Margaret Kvetan”

Margaret Kvetan, Member

“Pauline R. Seville”

Pauline R. Seville, Member