Pay Equity Hearings Tribunal
1788-09-PE Canadian Union of Public Employees, Local 1999, Applicant v. Lakeridge Health Corporation, Respondent.
BEFORE: Mary Anne McKellar, Vice-Chair, and, Margaret Kvetan and Pauline R. Seville, Members.
APPEARANCES: Mary Cornish, Jan Borowy, Joanne Wilson, Cathy Loyst, Lee Dautsis, Lori Davis, Lorraine Boake and Steve Lillico appearing for the applicant; Carolyn Kay and John Harris appearing for the respondent.
DECISION OF THE TRIBUNAL: August 11, 2010
Introduction
This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”). By Notice of Decision dated September 30, 2008, a Review Officer declined to make an order against the responding party (“the Employer” or “Lakeridge”).
The applicant (“CUPE”) seeks to have the Tribunal order the Employer to adjust the wage grids for the female job classes in the bargaining unit it represents so that they mirror the wage grids for the male comparator job classes outside of that bargaining unit, and provide for the same rate of progression through the grid.
Decision
- We have determined that the Act does not require the adjustment to the wage grids that CUPE seeks to have us order. This application is therefore dismissed.
The Facts
We heard testimony from one witness, Joanne Wilson, who is now a CUPE representative, but was formerly an employee in the bargaining unit (or its predecessor) that is the subject of this application. There was no significant dispute with respect to the factual context for this application, which may be briefly stated.
Lakeridge is the successor employer to a number of hospitals surrounding the Greater Toronto Area which merged in 1998. Following the merger, CUPE became the bargaining agent for a bargaining unit of clerical employees of Lakeridge (“the Clerical Unit”). CUPE also became the bargaining agent for a bargaining unit of service employees of Lakeridge (“the Service Unit”).
CUPE had previously represented a unit of service employees and a unit of clerical employees of Oshawa General Hospital since at least the mid-70s. The wage structure (i.e. the grid) set out in each of these collective agreements was adopted for the service and clerical employees of Lakeridge.
The collective agreements in place between Oshawa General Hospital and CUPE at the time of the merger included a wage grid in which employees ascended the steps of the grid applicable to their occupational classification based on their length of service. Employees in the service unit ascended to the top step of the grid applicable to their occupational classification more quickly than did employees in the clerical unit. Although the number of steps in the grids in the clerical and service unit collective agreements were the same, the interval between the steps was shorter in the service unit. Thus, for example, a service employee might ascend to the top of the pay scale attaching to a job classification after 9 months of service, while a clerical employee would not reach the top of the pay scale attaching to a job classification in that unit until 24 months of service had been completed.
The other hospitals that merged to form Lakeridge had a variety of different wage grids in the collective agreements to which they were party. The bargaining units to which these collective agreements applied also varied, from mixed service-clerical units, to service-only unit, and a unit of skilled trades. The wage grids set out in these collective agreements also varied.
There were various attempts made in collective agreement negotiations with Oshawa General Hospital over the years by CUPE seeking to “map” the clerical grid structure to the service grid structure by equalizing the length of service required to reach the top rate. None of these initiatives were successful. The matter was again raised in collective agreement negotiations with Lakeridge, but it was deferred.
The first collective agreements that CUPE negotiated with Lakeridge for the Clerical Unit and for the Service Unit continued the grid structures from the Oshawa General Hospital agreements for each of these bargaining units.
All of the hospitals that merged to form Lakeridge had posted pay equity plans at some point. The Oshawa General Hospital did so in January 1990. In any event, after the merger, CUPE and Lakeridge commenced negotiating pay equity. The Review Services branch of the Pay Equity Office became involved. An order was issued in 2005 which decided a variety of issues, but which did not address the question of the different wage grids applicable to the Clerical and the Service Units. An application was made to the Tribunal with respect to this order but the matter was settled at a pre-hearing conference and a Memorandum of Agreement setting out the adjustments agreed to was executed by the parties. It made no reference to the grid issue. A pay equity plan based on the Memorandum of Agreement was finalized in 2006.
The majority of the members of the Clerical Unit are female, and the majority of the job classes they occupy are “female job classes” within the meaning of the Act. There are, however, some male job classes in the Clerical Unit. The majority of the members of the Service Unit are male, and the majority of the job classes they occupy are “male job classes” within the meaning of the Act. There are, however, some female job classes within the Service Unit.
Many of the female job classes in the Clerical Unit could not be directly compared to similarly valued male job classes in the Service Unit. The proportional value (“PV”) methodology was used to determine the male wage line on the basis of which any necessary adjustment was calculated.
Twelve of the female job classes in the Clerical Unit were compared to similarly valued male job classes in the Service Unit. The top rates (the “job rate” under the Act) for such pairs of job classes were equalized. The grid structures were not mapped to one another. The consequence is that an employee in a female job class in the Clerical Unit whose job has been determined to be of comparable value to that of a male job class in the Service Unit, but who has not yet completed enough service to be paid at the top step of the grid will be paid less than an incumbent in the male job class with the same length of service.
About a year after the Memorandum of Agreement had been executed, CUPE attempted to revisit the question of the wage grids, and Lakeridge took the position that it was an issue that must be addressed in collective agreement negotiations (rather than through the pay equity process). CUPE did pursue the issue in negotiations, but was unsuccessful. The differential grid structures in the Clerical and Service Units remain.
Joanne Wilson agreed that there are many different types of wage grids that may be constructed, and that the number of steps, and the length of service required to achieve the maximum wage rate may vary from one collective agreement to another, and may indeed vary within a single collective agreement. There are in fact classifications listed in the Clerical Unit agreement between CUPE and Lakeridge that do not follow the three-step grid. There was also evidence that CUPE had at one point negotiated a reduction in the number of steps for some job classes in a service bargaining unit. Additionally, it appears that CUPE has agreed to across-the-board percentage increases in collective bargaining for both the Clerical and the Service Units.
The Parties’ Positions
CUPE takes the position that section 7(1) of the Act requires the equalization of the wage grids at issue in this case. CUPE rejects the notion that the establishment of pay equity is to be measured by whether or not “job rates” alone are equalized for comparably valued pairs of male and lower-paid female job classes.
Lakeridge relies on the Act’s emphasis on “job rate”, and its stipulation of the mechanics for achievement. It further submits that wage grids below job rate are not the concern of the Act but are properly a matter for collective bargaining.
Analysis
It is important to note that the parties do not disagree about the following: the identification of job classes; their gender incumbency; the tool to be used to evaluate them; the values determined; which male job classes are comparably valued (where job-to-job comparators exist); the male job line determined under the PV analysis; and the adjustments to the “job rate” required for the female job classes.
Where the parties disagree is on whether the Act requires the level of compensation and the rate of progression through a wage grid to be equalized for comparably-valued male and female job classes. The issue between the parties of necessity relates not to the analysis of whether pay equity (or its converse, gender discrimination in compensation) exists, but rather to the question of what adjustments the Act requires to be made.
This plan covers many female job classes, only twelve of which (the minority) were compared to male job classes and found comparators using the job-to-job method of comparison. They were the focus of the argument and we will focus on them as well in our analysis, which unless otherwise noted is predicated on the assumption that we are dealing with a pay equity plan employing the job-to-job method of comparison.
The purpose of the Act is to redress gender discrimination in compensation. Gender discrimination in compensation is identified by comparing the value of work performed by male and female job classes. Where work performed by male and female job classes is of equal or comparable value (that is where a job-to-job comparison is possible), and the male job class receives greater compensation, an adjustment may be required. There are circumstances in the Act, however, where no adjustment is required and/or where discrepancies in compensation between comparably-valued male and female job classes are not only permissible but contemplated. If we are concerned with a female job class in bargaining unit A, those circumstances will include the following:
where there is a comparably-valued male job class in bargaining unit B and a comparably-valued male job class in bargaining unit A that is paid less. Then the female job class compensation is adjusted with reference to the latter’s job rate; or,
where there are two (or more) comparably-valued male job classes that are available to be a comparator (i.e. in the same bargaining unit) but paid different rates. Then the female job class compensation is adjusted with reference to the job rate of the lower (or lowest) paid of the male job classes; or,
where one of the exceptions enumerated in section 8 of the Act applies.
CUPE suggested repeatedly that the average person on the street would think it unfair that incumbents of equally-valued male and female job classes with similar lengths of service might be paid a different rate of compensation. That may be so, but it is not a situation uncontemplated in the Act, so we do not think that principle can dictate the answer to the issue before us.
As noted above, the confronting issue in this case arises at the point that the parties must consider what pay equity adjustments are required for the pairs of comparably-valued male and female job classes that they have identified. The goal of the Act is “to establish …compensation practices that provide for pay equity”. The Act defines when pay equity is “achieved”. The definition for both job-to-job comparisons and comparisons based on PV are similar in that they make explicit reference to “job rate” which is the highest rate of compensation available to a job class. These are the sections that speak to when pay equity is achieved:
5.1(1) For the purposes of this Act, pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job-to-job method of comparison or the proportional value method of comparison and any adjustment to the job rate of each female job class that is indicated by the comparison has been made.
6(1) For the purposes of this Act, pay equity is achieved under the job-to-job method of comparison when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value.
(2) Where there is no male job class with which to make a comparison for the purposes of subsection (1), pay equity is achieved when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate of a male job class in the same establishment that at the time of comparison had a higher job rate but performs work of lower value than the female job class.
(3) If more than one comparison is possible between a female job class in an establishment and male job classes in the same establishment, pay equity is achieved when the job rate for the female hob class is at least as great as the job rate for the male job class,
(a) with the lowest job rate, if the work performed in both job classes is of equal or comparable value; or
(b) with the highest job rate, if the work performed in the male job class is of less value.
21.3(1) Pay equity is achieved for a female job class under the proportional value method of comparison,
(a) when the class is compared with a representative male job class or representative group of male job classes in accordance with this section; and
(b) when the job rate for the class bears the same relationship to the value of the work performed in the class as the job rate for the male job class bears to the value of the work performed in that class or as the job rates for the male job classes bear to the value of the work performed in those classes, as the case may be.
- The common meaning of the terms “achieve” and “achievement” suggest the end of a process and the attainment of a goal. These are the definitions found in The Concise Oxford Dictionary (7th ed. – 1982):
Achieve: 1. accomplish, carry out; acquire; reach (success, glory, one’s objective); 2. attain desired level of performance. …
Achievement: completion, accomplishment; thing accomplished.
- This sense that “achieved” refers to a goal attained is reinforced when we look at what section 13 of the Act requires in terms of pay equity adjustments. Section 13(2) which describes the contents of plans says that with respect to all female job classes for which pay equity does not exist, they must “describe how the compensation in those job classes will be adjusted to achieve pay equity”. Section 13(3) creates a priority among female job classes for the payment of pay equity adjustments. Section 13(4) deals with minimum adjustments required. Section 13(5) deals with the timing of adjustments. All these subsections contemplate that the implementation of pay equity is complete when “the amount required to achieve pay equity has been paid”. Here is the actual language of these sections:
(2) If both female job classes and male job classes exist in an establishment, every pay equity plan for the establishment,
(d) shall, with respect to all female job classes for which pay equity does not exist according to the comparisons under section 12, describe how the compensation in those job classes will be adjusted to achieve pay equity; and
(3) A pay equity plan shall provide that the female job class or classes that have, at any time during the implementation of the plan, the lowest job rate shall receive increases in rates of compensation under the plan that are greater than the increases under the plan for other female job classes until such time as the job rate for the female job class or classes receiving the greater increases is equal to the lesser of,
(a) the job rate required to achieve pay equity; and
(b) the job rate of the female job class or classes entitled to receive an adjustment under the plan with the next lowest job rate.
(4) The first adjustments in compensation under a pay equity plan are payable as of the date provided for in clause (2) (e) and shall be such that the combined compensation payable under all pay equity plans of the employer during the twelve-month period following the first adjustments shall be increased by an amount that is not less than the lesser of,
(a) 1 per cent of the employer’s payroll during the twelve-month period preceding the first adjustments; and
(b) the amount required to achieve pay equity.
(5) Adjustments shall be made in compensation under a pay equity plan on each anniversary of the first adjustments in compensation under the plan and shall be such that during the twelve-month period following each anniversary the combined compensation payable under all pay equity plans of the employer shall be increased by an amount that is not less than the lesser of,
(a) 1 per cent of the employer’s payroll during the twelve-month period preceding the anniversary; and
(b) the amount required to achieve pay equity
The Act consistently refers to the achievement of pay equity in terms of the adjustment of job rates despite the fact that it also contains both explicit and implicit acknowledgment that job classes may have more than one rate of compensation attached to them. There is explicit acknowledgment of this fact in the definition of what positions may comprise a “job class”: those with the same “compensation schedule, salary grade or range of salary rates”. The use of the adjustment of “job rates” as the measure for when pay equity is achieved must be considered a deliberate choice. Clearly the Act might have provided that pay equity is achieved when the “compensation schedule, salary grade or range of salary rates” for the male and female job classes are equalized.
The only section of the Act that addresses itself to what adjustments must be paid to people in positions encompassed by a job class but compensated at a rate below the “job rate” is section 9(3). This section provides as follows:
9(3) Where, to achieve pay equity, it is necessary to increase the rate of compensation for a job class, all positions in the job class shall receive the same adjustment in dollar terms.
There is a live debate about what constitutes a “position” for the purposes of section 9(3), but we do not need to address that for the purposes of this decision. What we do know is that all positions in the same job class must, as a prerequisite to being in that job class, have the same “compensation schedule, salary grade or range of salary rates”. If that is so, then accepting CUPE’s argument that section 7(1) of the Act requires the equalization of the grids in terms of rate of progression and compensation paid at each level, would lead to a situation where section 9(3) of the Act is rendered at best redundant, and at worst in conflict with section 7(1). A conflict between the two subsections would occur wherever steps on a male grid were not separated by equal dollar amounts. We prefer an interpretation of the Act as a whole that does not render sections of it redundant or create a conflict. In our view, section 9(3) only makes sense in a scheme where its absence would mean the only statutorily-mandated pay equity adjustment would be to the “job rate”, such that positions in the female job class that were paid below the job rate would not benefit from the “achievement” of pay equity.
Our view therefore is that, having regard to all of the provisions of the Act, we cannot conclude that section 7(1) or any other provision of the Act mandates the result urged by CUPE in this case. We also agree with counsel for Lakeridge that finding otherwise could lead to some practical difficulties and consequences that are inconsistent with what the Tribunal has noted about the relationship between the Act and collective bargaining. Collective agreements typically set out a wage schedule. It might consist of a single rate or a grid, or perhaps a combination of the two. Pay equity adjustments for female job classes must be incorporated into and prevail over the collective agreement. Where male comparators are found outside the bargaining unit to which the plan relates, requiring a mapping to the “range of salary rates” for that male job class could be quite disruptive of the compensation schedule the negotiating parties agreed to. This is inconsistent with those provisions of the Act (the requirement for separate plans for example and the primacy of locating comparators within the same bargaining unit) that respect the role of collective bargaining, including the parties’ agreements about how to distribute wage dollars and other benefits.
While CUPE made brief reference to the Human Rights Code and the Canadian Charter of Rights and Freedoms in argument, we do not think consideration of this legislation assists us in this case. We do not disagree with the proposition that there are human rights aspects to the Act, and that its interpretation should be informed by human rights and equality principles. The fact remains, however, that in this province the Act provides a comprehensive scheme for the redressing of systemic gender discrimination in compensation. Our interpretation of the Act is that it does not compel the result CUPE has urged. If the Act does not require that all discrepancies between the compensation received by members of female job classes and members of comparably-valued male job classes be redressed, predicating that result on a consideration of what the Code or Charter might dictate in the absence of a comprehensive statutory scheme amounts to assuming an inappropriate legislative role.
For all of the above reasons, this application is dismissed.
Dated at Toronto this 11th day of August, 2010.
“Mary Anne McKellar”
Mary Anne McKellar, Vice-Chair
“Margaret Kvetan”
Margaret Kvetan, Member
“Pauline R. Seville”
Pauline R. Seville, Member