PAY EQUITY HEARINGS TRIBUNAL

2871-08-PE Hamilton-Wentworth District School Board (Re: the ESL Bargaining Unit), Applicant v. Ontario Secondary School Teachers’ Federation, Respondent.

0782-08-PE Ontario Secondary School Teachers’ Federation (representing the ESL Instructors Bargaining Unit), Applicant v. Hamilton-Wentworth District School Board, Respondent.

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

APPEARANCES: Carolyn Kay, Paul Baldwin and John Horgan for Hamilton-Wentworth District School Board; Susan Ursel, Susan Coleman and Susan Ham for the Ontario Secondary School Teachers’ Federation.

DECISION OF THE TRIBUNAL: October 30, 2009

1. These matters are an application filed by the Hamilton-Wentworth District School Board (the “Board” or the “Employer”) and an application filed by the Ontario Secondary School Teachers’ Federation District 12 (the “Federation”) with the Pay Equity Hearings Tribunal (Files 2871-08-PE and 0782-08-PE respectively) challenging a Review Officer Order dated August 1, 2008.

2. The issue in dispute is how to calculate the job rate for the male comparator job class.

3. The parties provided the Tribunal with the following Agreed Statement of Facts:

Agreed Statement of Facts

1. The Ontario Secondary School Teachers’ Federation (“Federation”) is a trade union representing a Bargaining Unit of English as a Second Language (“ESL”) Instructors with the Employer, the Hamilton Wentworth District School Board (“Board”).

2. The Federation has represented this Bargaining Unit, which currently consists of approximately 23 full time members, since July 1997.

3. The parties have had five Collective Agreements, running from 2000-2001, 2001-2003, 2003-2006, 2006-2008, and 2008-2012. Those Agreements are attached as Exhibits 1, 2, 3, 4 and 5 respectively.

4. The Federation and the Board are the parties responsible for establishing and maintaining pay equity under the Pay Equity Act.

5. The Federation and the Board negotiated a pay equity plan, which was signed by both parties on October 25, 2001. The Pay Equity Plan is attached as Exhibit 6.

6. The parties used the OSSTF’s Gender Neutral Comparison System found in the document entitled “Job Evaluation System”, which is attached as Exhibit 7.

7. As there was no male comparator within the bargaining unit, the parties agreed that the appropriate male comparator was the Computer Technician job class, which is part of the OSSTF’s Office, Clerical and Technical (“OCT”) Workers Bargaining Unit for the Board. There are currently approximately 10 computer technicians in the OCT Bargaining Unit. The 2001-2003 Collective Agreement between the OSSTF for the OCT Workers and the Board is attached as Exhibit 8.

8. Attached as Exhibit 9 are copies of the School Calendars for 2001-2002 and 2008-2009.

9. Computer Technicians work twelve months per year excluding statutory holidays. Computer Technicians work 7 hours per day, thirty five hours per week and have an annual salary rate. The salary rates for computer technicians are found in Schedule “A” of the 2001-2003 Collective Agreement for OCT Workers.

10. Computer Technicians receive ten paid statutory and Board holidays, and are granted annual paid vacation in accordance with seniority, for up to six weeks. Their holiday entitlements are referred to in Article 41.3(a) of the 2001-2003 Collective Agreement and can be summed up as follows:

Years of Service Prior to September 1st	Entitlement
Less than 1 year	3 weeks pro rated to time worked
1 year	3 weeks
8 years	4 weeks
17 years	5 weeks
24 years	6 weeks

11. ESL instructors are paid an hourly rate and work ten months, currently comprised of the 188 Instructional Days and 6 Professional Activity Days, as identified in the School Calendar. The standard work schedule for full-time bargaining unit members is 5.5 hours per day, twenty seven and one half hours per week. There are also part-time members in the unit. Salary rates are found in Schedule “A” of the 2002-2003 ESL Bargaining Unit Collective Agreement.

12. Pursuant to Articles 28 and 29 of the 2002-2003 ESL Bargaining Unit Collective Agreement, ESL instructors receive eight paid statutory and Board holidays and their vacation pay is four percent (4%) of salary/wages earned.

13. The parties disagree on how to factor in vacation entitlements for the purpose of determining an hourly wage rate for the Computer Technician position.

14. As set out in the Agreed Statement of Facts, the parties determined that the female dominated job class of ESL Instructor is equal in value to the male dominated job class of Computer Technician. The parties were unable to agree on how to convert the annual salary and vacation benefit paid to the Computer Technicians to an hourly rate in order that it could be compared to the hourly wage and 4% vacation pay of an ESL Instructor.

15. The Federation takes the position that the Computer Technicians’ hourly rate is to be calculated by dividing the Computer Technicians’ annual salary (“AS”) by the total number of available working hours (“AWH”) in a year minus the maximum number of vacation hours (“MVH”) that a Computer Technician is eligible to take in a year. The Board takes the position that the Computer Technicians’ hourly rate is to be calculated by dividing the Computer Technicians’ annual salary by the total number of available working hours in a year with no deduction for any vacation hours that a Computer Technician is eligible to take. Their positions can be expressed as follows:

Federation’s Position: AS divided by (AWH – MVH) = Hourly Wage

Board’s Position: AS divided by AWH = Hourly Wage

6. Both parties take the position that, in order to calculate the Computer Technicians’ total compensation (wages + benefits including vacation benefit) nothing need be added to the hourly wage as, any value that the Computer Technicians’ vacation benefit has, is already accounted for in the hourly wage. When the parties were asked by the Tribunal how the ESL Instructors’ total hourly compensation was to be calculated (i.e. is their total compensation their hourly rate of pay plus their 4% vacation pay?) the parties indicated that they had not yet determined how the ESL Instructors’ total hourly compensation was to be determined. The parties advised the Tribunal that they did not intend to deal with the specifics of the calculations; they wished to have the Tribunal determine which of the parties’ proposed means of calculating the Computer Technicians’ hourly rate is correct.

7. This matter raises an issue that the Tribunal has not previously addressed. There are no existing Tribunal decisions directly on point.

8. The Tribunal acknowledges that the definition of “job rate” refers to the “highest” rate of compensation for a job class and that “compensation” means “all payments and benefits paid or provided …” not only wages. However, the Pay Equity Act (the “Act”) recognizes that a single job class may have compensation schedules, scales and ranges. While a determination as to whether a female dominated job class is entitled to pay equity adjustments requires a comparison between the highest rate of compensation available to a position in the female dominated job class and the highest rate of compensation available to a position in the comparator job class, the process of achieving pay equity does not require that all positions in the female dominated job class be compensated at the highest rate of compensation for the comparator class without regard to the existence of compensation schedules, scales and ranges. What is required is that the compensation of the positions in the female dominated job class be adjusted so that, having regard to the conditions placed on advancing through the schedules, scales or ranges in the comparator job class, the incumbents of those positions in the female dominated job class would be compensated at the same rate as if they held a position in the comparator job class.

9. If the Federation’s position were to be adopted, the Computer Technicians’ hourly rate would be calculated on the premise that all Computer Technicians are eligible to receive six weeks vacation per year when this is not the case. All of the ESL Instructors would receive pay equity adjustments on the premise that they, regardless of their years of service, are entitled to six weeks vacation per year. An ESL Instructor with less than 24 years of service could end up, after pay equity adjustments, with a higher hourly compensation than that of a Computer Technician of equal years of service. Such a result is not the intention of pay equity nor is it mandated by the Act. As a result, the Tribunal does not accept the Federation’s position.

10. The Board’s position is that the Computer Technicians’ total annual salary is to be divided by the total number of available working hours in a year with no deduction for vacation hours. The Board argues that the Computer Technicians’ total hourly compensation is to be calculated without any regard to the fact that part of their compensation is a vacation benefit. Vacation is a benefit that must be valued. The fact that the Computer Technicians enjoy a much richer vacation benefit than the ESL Instructors cannot be ignored. Accordingly, the Tribunal does not accept the Board’s position.

11. In our view, there is no single correct way in which to calculate the Computer Technicians’ total hourly compensation. However, what is essential to the pay equity process is that the superior vacation benefit provided to the Computer Technicians be recognized and valued. In order to ensure that a valid ‘apples to apples’ comparison is made as between the Computer Technicians’ job rate and the ESL Instructors’ job rate the value of the vacation benefit already being received by each job class ought to be included in the calculation of total hourly compensation. In addition, as discussed above, when determining the extent of any pay equity adjustments required, because the vacation benefit provided to Computer Technicians’ is established by way of years of service (we are not aware of whether the wages paid to the Computer Technicians and/or ESL Instructors are similarly based on years of service), this too must be taken into account. It may be that the job rate comparison to be made will be as between an ESL Instructor with a particular number of years of service and a Computer Technician with the same number of years of service. Alternatively, the parties could elect to equalize the vacation benefit between the two job classes by giving the ESL Instructors the equivalent vacation time off, or equivalent vacation pay, as the Computer Technicians thereby eliminating the need to include a value for the vacation benefit in the calculation of total compensation.

12. The Board advanced an argument that any difference in compensation between the ESL Instructor and the Computer Technician was a result of a “formal seniority system that does not discriminate on the basis of gender” such that, pursuant to section 8(1)(a) of the Act, the Act does not prevent the difference. No evidence was adduced in support of this argument. In the Tribunal’s view, in order to demonstrate that there is a formal seniority system that “does not discriminate on the basis of gender”, it would be necessary, at a minimum, to show that the job rate for the male job class is equally available to the incumbents in the female job class for which it is the comparator. Otherwise, discrimination on the basis of gender would exist. In the instant case, the male dominated job class receives a vacation benefit based on their years of service (arguably seniority based) that is not equally available to the female job class. As such, it is the Tribunal’s determination that section 8(1)(a) does not apply.

13. Given that the parties asked the Tribunal to advise them as to which of their two positions was correct and the Tribunal has determined that it does not accept either party’s position, the Tribunal hereby remits this matter back to the parties to reconsider their positions in light of the guidance that the Tribunal has provided above. If, within 20 days of the date of this decision the parties have not reached an agreement on how to calculate the Computer Technicians’ hourly rate, they are to each file submissions with the Tribunal setting out how they submit both the ESL Instructor and the Computer Technicians’ hourly rates ought to be determined. This matter will then be relisted for a further hearing.

14. This panel is seized.

Dated at Toronto this 30th day of October, 2009.

“Diane Gee”

Diane Gee, Chair

“Margaret Kvetan”

Margaret Kvetan, Member

“Pauline R. Seville”

Pauline R. Seville, Member