Pay Equity Hearings Tribunal
0769-04-PE Group of Employees, Applicants v. Windsor Casino Limited, and National Automobile, Aerospace, Transportation and General Workers Union of Canada (C.A.W. Canada) Local 444, Respondents.
BEFORE: Mary Ellen Cummings, Presiding Officer, and Margaret Kvetan and Pauline R. Seville, Members.
CITE AS: Windsor Casino Limited 0769-04-PE, October 19, 2009 (P.E.H.T)
DECISION OF THE TRIBUNAL: October 19, 2009
On November 14, 2007 we issued a decision in this matter finding that the method the respondents had used to track and ascertain gratuities for the female job class of Casino Cashier was flawed. At paragraph 67, we directed “…that the tips of the Casino Cashiers and their male job class comparator be tracked to permit the Union and the Employer to accurately track the tip rate for both.”
We specifically said that the Union and the Employer did not have to consult with the Group of Employees about the process, but added that it might be prudent for the Employer and the Union to keep the representatives of the Group of Employees informed.
By letter dated July 3, 2009, counsel for the Employer wrote that the Respondents had undertaken the review directed by the Tribunal. “Data was gathered and documented from all employees in those two job classes following each shift over a period of nine months. That review confirmed that the tips attributed by the parties to the job classes in the Pay Equity Plan were in fact appropriate”. The letter continued that no further pay equity adjustment was required and the outcome had been communicated to all employees. The letter concluded with the request that the file be closed since the Respondents had complied with the Tribunal’s direction.
The representatives of the Group of Employees wrote to the Tribunal submitting that the file should not be closed. They assert that the Employer and the Union have failed to address their remaining concern that the Security Officer job class, their male comparator, was treated as having an insignificant tip rate, while the tips of the Casino Cashiers were included in their job rate. The Group of Employees relies on the testimony of Richard Mignault, for the Employer, which is quoted at paragraph 13 of the decision. Mr. Mignault said that the Union and Employer joint Steering Committee decided that jobs that received few tips would not see an amount attributed to tips in the calculation of the job rate. Mr. Mignault said that he believed the Steering Committee determined that those whose tips amounted to less than 10% of their hourly rate would be treated as a position that did not receive tips. The Group of Employees assert that because their tips amount to less than 10% of their hourly rate, they too, should be deemed insignificant and not counted.
Without seeking to challenge Mr. Mignault’s evidence, as recounted by the Tribunal, (and so many years after the fact) a review of the parties’ pay equity plan shows that the Union and the Employer did not consistently use 10% as the cut off point. The tips of many job classes, both male and female, that fell below 10% of their hourly rate were included in calculating the job rate. We believe that either Mr. Mignault was mistaken, or the Tribunal misunderstood his evidence. However, this was not a point of significance in the matters that were in dispute at the time. It is true that the Casino Cashiers believed that the tips available to the Security Officer should have been included, but the focus of that concern was their belief that the tips available to the male job class were much higher and that the Employer and the Union had underestimated that amount.
As directed by the Tribunal, the Employer and the Union have undertaken a collection and evaluation of tip data and concluded that Security Officers get a negligible amount of tips, while the Casino Cashiers get tips that amount to .75 cents an hour. Since the pay equity plan attributes tips to other job classes that amount to less than 10% of the job class’ hourly rate, there is no basis to direct that the tips of the Casino Cashiers not be included in their job rate. Consequently, we make no further order or direction.
There is one remaining issue. The Review Officer found that the employer and the union should have implemented pay equity as of September 1994, rather than the April 1, 1995 date that they chose. The Review Officer ordered the employer to make retroactive pay equity adjustments in the amount of $.10 per hour from September 1994. When the hearing commenced, the employer advised that it was no longer disputing that portion of the Review Officer’s order and so, the Tribunal made no inquiry into that issue. At the end of the hearing, the employer advised that it was working with the union to implement that part of the order. In its letter to the Tribunal of July 29, 2009, counsel for the employer indicated that the union and the employer “…have engaged in discussions to remedy that issue”. With respect, the union and the employer should have already completed whatever discussions were necessary, since more than two years have passed since the end of the hearing. However, since it was not necessary for the tribunal to make any inquiry into the issue of the retroactive adjustments, we say no more.
Since there are no further issues for the Tribunal to resolve, we direct that the file be closed.
Dated at Toronto this 19th day of October, 2009.
“Mary Ellen Cummings”
Mary Ellen Cummings, Presiding Officer
“Margaret Kvetan”
Margaret Kvetan, Member
“Pauline R. Seville”
Pauline R. Seville, Member