PAY EQUITY HEARINGS TRIBUNAL
2984-09-PE Beverly Mahadeo, Dolores Sampson, Morag Donaldson and Jaclyn Mallia, Civilian Members of the Records Search Unit within Peel Regional Police, Applicants v. Peel Regional Police Association and the Regional Municipality of the Peel Police Services Board, Respondents.
BEFORE: Diane L. Gee, Chair, Margaret Kvetan and Pauline R. Seville, Members.
DECISION OF THE TRIBUNAL: April 6, 2010
This matter is an application filed by four individuals who are employed by the Peel Police Services Board (the “Board”) in the Records Search Unit in the female dominated job class of Clerk 2. The applicants are members of a bargaining unit of civilian members of the Peel Regional Police and are represented by the Peel Regional Police Association (the “Association”). A complaint by the applicants to the Pay Equity Commission was investigated by a Review Officer who, by decision dated October 12, 2007, notified the parties that she found no contravention of the Pay Equity Act (the “Act”) and would not be issuing an Order under subsection 23(3) of the Act. This application was filed with the Pay Equity Hearings Tribunal (the “Tribunal”) on January 7, 2010.
According to the facts set out in the application, the Board and the Association negotiated and prepared a pay equity plan in 1990. The pay equity plan is maintained by the Joint Job Evaluation/Pay Equity Committee (the “Committee”). When the Records Search Unit was created in 2000, there were 13 employees working in the Unit in similar clerical positions in the job classifications of Clerk 1 and Clerk 2. The Clerk 1 and Clerk 2 job classifications were evaluated by the Committee and placed in the same salary grade level with the same male comparator.
The application states that, as part of the process of maintaining pay equity, the Committee has an ongoing process to evaluate changes in the value of job classes and ensure that pay equity is maintained. Following such an evaluation, the Clerk 1 job class was valued higher than the Clerk 2 job class with the result that the Clerk 1 job class was compared to a different male comparator and placed in a higher salary grade than the Clerk 2 job class.
The application cites two factors as underlying the Clerk 1 job class being assigned a higher value than the Clerk 2 job class. The Clerk 1 job class deals directly with the public as a part of their regular duties resulting in this position being given a higher rating in respect of the communication skill factor. Secondly, the Clerk 1 job class rated higher on the financial responsibility factor as the Clerk 1 job class is required to handle money and debit card transactions.
The application states that the incumbents of the Clerk 2 job class are of the opinion that the Clerk 1 employees received “preferential treatment”. The applicants assert that the Clerk 2 job class is of the same importance and should be awarded the same value as the Clerk 1 job class. In the section of the application form where the applicants are asked to set out what they want the Tribunal to do as a result of the application, the applicants ask that the Clerk 2 job class be reclassified to equal that of the Clerk 1 job class and that the salary of the Clerk 2 job class be increased to that of the Clerk 1 job class. Enclosed with the application is a printout of website pages containing information as to the wage rates paid by Burger King Corporation in the United States. The application does not refer to this document nor explain why it is provided.
By way of letter dated January 28, 2010, the Association asked that this application be dismissed by the Tribunal on the basis that the application does not establish a prima facie case.
By way of letter dated February 28, 2010 the applicants were directed by the Tribunal to file submissions in response to the Association’s request that the application be dismissed. The applicants filed their submissions on or about March 9, 2010. The submissions consist of a four page letter setting out the job duties of the Clerk 1 and Clerk 2 job classes and an additional 68 pages of what is described by the applicants as “baseline salaries and job descriptions of comparable positions within other policing agencies as well as, the private sector.” The submissions explain that this information is being filed for the following reasons:
This will establish the lack of parity in relation to the enumeration for the different job classifications and responsibilities within the Records Search Unit. It clearly indicates that the applicants are being underpaid based on salaries from other policing agencies and government positions.
Based on the information contained in the application form and the attachments thereto, as well as the information provided by the applicants in and with their letter of March 9, 2010, the applicants appear to be advancing two arguments. First, the applicants argue that the Clerk 2 job classification is of equal value to the Clerk 1 job classification and that the higher valuation that was given to the Clerk 1 position was the result of “preferential treatment”. Secondly, the applicants argue that they are underpaid “based on salaries from other policing agencies and government positions.”
The Tribunal has the authority to dismiss an application for failing to make out a prima facie case (see: Peterborough (1991), 2 P.E.R. 86). On a motion for dismissal on the basis of a failure to make out a prima facie case, the Tribunal must decide whether, assuming all of the facts as stated in the materials filed by the applicants to be true, such facts would establish a violation of the Act or that the union and the employer acted unreasonably in their evaluation of job content.
The Tribunal dealt with circumstances very similar to the circumstances of this case in Ottawa Heart Institute, 2004 CanLII 60148 (ON P.E.H.T.). In Ottawa Heart Institute, a group of unionized employees in a Clerk 3 position asserted that their job duties were the same as those of a Clerk 4 and thus they should be paid the same. The Clerk 4 position had a different male comparator for pay equity purposes and was being paid $5.00 an hour more than the Clerk 3 position. CUPE, who represented the applicants, asked the Tribunal to dismiss the application without a hearing on the basis that the application did not make out a prima facie case. The Tribunal’s overview of what an individual who is represented by a trade union must establish in order to succeed with an application to the Tribunal is instructive:
The Act does not require that comparable female job classes be paid the same. Many employers have, as part of their overall compensation review, sought to establish wage equity among all job classes, but the Act does not require them to do so. The Act requires employers to seek a male job class comparator for each female job class. If there is a choice of male comparators, employers can achieve pay equity by adjusting the wages and benefits of the female job class to the lowest comparable male position. Because the Act mandates a “matching” of female to male job classes, new disparities between female job classes can be created if female job classes are compared to different male job classes. That appears to be what has happened in this case. The Clerk 3 and Clerk 4 job classes were each compared to a different male comparator. In 1998, by order of the Pay Equity Office, the male comparator for the Clerk 4 was changed. Since the Employer is obliged to ensure that any female job class is paid the same as its male comparator, the Employer was obliged to adjust the wages of the Clerk 4. But because the male comparator chosen for the Clerk 3 was not changed, the Employer was not obliged to make a pay equity adjustment to the Clerk 3, resulting in a larger gap between Clerk 3 and Clerk 4. That result, while it can create issues of internal equity, is not a violation of the Act. Therefore, even if we were to accept the allegation that the wage gap between the Clerk 3 and Clerk 4 has grown, that would not amount to a contravention of the Act.
The Group of Employees can succeed in their Application only if they can establish that their former employer and former bargaining agent acted unreasonably in evaluating the job of Clerk 3. The Tribunal has held in a number of cases (see for example Management Board Secretariat, (1993) 4 P.E.R. 58) that when an employer and a trade union negotiate a pay equity plan, and then implement it, the plan is deemed approved. Members of the bargaining unit are bound by the result. At paragraph 29 of Management Board Secretariat, the Tribunal wrote “The Act then, accords no role to employees who are represented by a bargaining agent in the negotiation or implementation of pay equity. Where a bargaining unit exists, the bargaining agent exercises these rights on behalf of members.” However, the Tribunal also recognized that employers and trade unions cannot ignore their obligations under the Act with impunity. If a member of a bargaining unit alleges that a pay equity plan does not meet standards that are explicitly set out in the Act, then the Tribunal will consider the complaint. The Tribunal recognized though that in meeting those standards, some deference must be given to the negotiating parties, because many aspects of achieving pay equity are not capable of absolute determination. Choices are available to employers and unions. The Tribunal recognized that in collecting job information, deciding what was significant, and then in evaluating that job content against the prescribed factors of skill, effort, ability and working conditions, a range of outcomes was possible. Consequently, the Tribunal concluded that a union and employer are required only to be reasonable in its collection and evaluation of job content. They do not need to meet an exact standard.
Most important for this case, the Tribunal said in Management Board Secretariat, that we will inquire into a complaint from members of a bargaining unit only if they have pleaded material facts in their application that would, if proved, satisfy the Tribunal that the union and the employer acted unreasonably in their evaluation of the job content. In Parry Sound District General Hospital (No. 2) (1996), 7 P.E.R. 73 the Tribunal said that the same standard of reasonableness to be applied in reviewing a complaint about how a trade union and an employer determined the composition of a job class, because, again, a range of choices is possible.
Applying those principles to the Application in this matter, has the Group of Employees pleaded material facts, that if proven, would establish that the former union and the former employer were not reasonable in placing the Clerk 3 and Clerk 4 in different job classes, and were not reasonable in evaluating the job class of Clerk 3?
Thus, in order to succeed in this matter, the applicants must establish that there has been a violation of the Pay Equity Act or that the Board and the Association acted unreasonably in evaluating the Clerk 2 job class. It is important to point out that, as the Tribunal stated at paragraph 12 of the Ottawa Heart Institute decision, the Tribunal does not readily second guess the decisions of employers and bargaining agents. Rather, where a range of outcomes are possible, deference will be given to the negotiating parties.
As stated above, the applicants argue that they are “being underpaid based on salaries from other policing agencies and government positions.” Assuming this fact to be true, this would not establish a violation of the Act. The Act does not require there to be wage parity between the employees of different employers or even as between the employees of a single employer.
The second argument advanced by the applicants is that the Clerk 2 job class was incorrectly valued. The applicants assert that the Clerk 2 job class is equal in value to the Clerk 1 job class and the Clerk 1 job classification was given a higher value based on preferential treatment.
The applicants have filed the job duties for the Clerk 1 and Clerk 2 positions. They are not the same. Each position has different duties. In fact, the applicants refer to two differences between the two job classes in their application; namely: the Clerk 1 deals directly with the public and handles cash transactions whereas the Clerk 2 position does not. Accordingly, the materials filed by the applicants establish that the two positions are not identical. Yet, the materials filed by the applicants do not explain why it is unreasonable for the positions to be valued differently. While the application does state that it is the applicants’ opinion that the Clerk 1 employees received “preferential treatment” the applicants’ opinion, unsupported by any particulars as to how they formed this opinion, is not sufficient.
Thus, while establishing that the job duties of the Clerk 1 and Clerk 2 positions are not the same, the applicants have failed to provide any facts upon which it could be concluded that the Board and the Association acted unreasonably in the course of valuing the Clerk 2 position. In the absence of such facts, there is nothing for the Tribunal to enquire into.
For all of the foregoing reasons, assuming all of the facts as stated in the application to be true, such facts do not establish a violation of the Act or that the Board and the Association acted unreasonably in the valuation of the Clerk 2 position.
This application is hereby dismissed.
Dated at Toronto this 6th day of April, 2010.
“Diane L. Gee”
Diane L. Gee, Chair
“Margaret Kvetan”
Margaret Kvetan, Member
“Pauline R. Seville”
Pauline R. Seville, Member