Lynn Hudson v. Hamilton Police Association, 2010 CanLII 61163

PAY EQUITY HEARINGS TRIBUNAL

1873-09-PE Lynn Hudson, Applicant v. Hamilton Police Association, Respondent.

BEFORE: Mary Anne McKellar, Vice-Chair, Catherine Bickley and Margaret Kvetan, Members.

APPEARANCES: Lynn Hudson for the applicant; and Susan Ursel, Brad Boyce and Mike Cruse for the Respondent.

DECISION OF THE TRIBUNAL: October 19, 2010

Introduction

1. 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 May 25, 2009 a Review Officer dismissed the complaint of Lynn Hudson without making an order.

2. Ms. Hudson has applied to the Tribunal, seeking to have us make an order that the responding party (“the Association” or the “Employer”) adjust her compensation.

3. The Association provides services to approximately 1,200 members who are current civilian or uniformed employees (and in some cases retirees) of the Hamilton Police Services Board (“the Police”). It functions like a certified bargaining agent in representing them in matters vis-à-vis their employer, or in connection with employment-related benefit claims. It also operates a private club or lounge for the use of its members. The Association is created by Constitution and is operated in accordance with that and its By-laws by a Board of Directors.

Conduct of the Hearing

4. Ms. Hudson was self-represented in this proceeding. She is not a lawyer. The Association was represented by legal counsel with a great deal of experience in labour and pay equity litigation.

5. It is always a challenge for the Tribunal to deal with the self-represented because there is a balance to be struck between explaining or de-mystifying the process, which is appropriate, and providing legal advice, which is incompatible with impartial adjudication. These challenges can be exacerbated in circumstances where one of the parties is much more familiar with the legislation and the adjudicative process, including the rules of evidence.

6. We took a variety of steps intended to facilitate Ms. Hudson’s representation of herself:

• We offered at the outset of the hearing to answer questions about the hearing process, but clearly indicated we could not provide legal advice to her or to the Association;

• We engaged in a lengthy case management exercise at the beginning of the hearing (outlined in more detail below), and at its conclusion obtained the consent of counsel for the Association to permit the two panel members to meet together with Ms. Hudson to explain what was now expected of her;

• We also obtained the consent of the Association to attempt to mediate the matter with the assistance of the Tribunal Vice-Chair who had conducted the pre-hearing conference, if this was an avenue Ms. Hudson wished to pursue. This avenue was pursued but did not result in any settlement or narrowing of the issues;

• At various points in the proceeding we made inquiries of Ms. Hudson to ensure that she knew why the proceeding was taking the turn it was, and this included explaining why counsel for the Association had made an objection. We also explained why we made rulings on the evidence from time to time. Occasionally, we explained one of these things more than once, using slightly different language each time, usually when one of the panel members had a concern the first explanation involved some legal jargon that might not be readily understood by a layperson.

• When the evidence had all been heard, we proceeded to argument and Ms. Hudson presented her argument first. There was insufficient time left in the hearing day for the Association to present its argument and another day of hearing was set for that purpose. We obtained an undertaking from counsel for the Association that she would provide any authorities to be relied on in her argument to Ms. Hudson prior to the next scheduled day of hearing, and this undertaking was complied with.

• When the Association had completed its argument, Ms. Hudson indicated that she was not prepared to respond to all of it. We did not require her to proceed on the portions she was not prepared to deal with, but instead permitted (with the consent of the Association) to allow her to file reply submissions by a date approximately two weeks hence which was acceptable to her.

7. Despite taking the above measures, Ms. Hudson’s lack of familiarity with the adjudicative process was quite apparent. In particular we note that, although we had determined at the outset to confine our inquiry to the issue of which of the Association’s male job classes should be included in a proportional value (“PV”) analysis, Ms. Hudson’s testimony in chief included considerable evidence about the nature of her duties and the value that should be placed on them. Having put this evidence in herself, she then objected when Association counsel asked her questions about it in cross-examination. She also objected when she did not receive copies of Association counsel’s authorities until the Monday afternoon prior to the Wednesday morning resumption of the hearing. Ms. Hudson asserted that, pursuant to the Tribunal’s Rules of Practice, these materials should have been delivered to her at least 10 working days in advance of the hearing. We explained to her that this was not correct, and that only documentary evidence need be exchanged in advance. We reminded her that we had discussed this matter at the previous day of hearing and obtained the undertaking of counsel for the Association to do something she was not otherwise required to do by providing the materials in advance.

8. At the beginning of the hearing, there was clearly a lack of understanding on Ms. Hudson’s part about the scope of the Act, and the adjudicative process. As the hearing proceeded, however, and we continued to offer explanations in these two areas, it became clear that Ms. Hudson simply was not accepting our explanations. One example will suffice. Although we explained at the beginning of the process that the Act addresses itself to gender discrimination in compensation on an individual workplace (establishment) basis, and Ms. Hudson appeared to accept that direction, she nevertheless persisted in including with the documents she relied on at the hearing, material that only went to the question of whether the equivalent job class or position to hers in other police associations was more generously compensated. Indeed, the overarching theme of Ms. Hudson’s evidence and submissions in this proceeding was her desire to obtain a market adjustment rather than a pay equity adjustment.

Allegations of Bias

9. After all the evidence in this matter had been heard, and after Ms. Hudson had presented her argument and the Association had responded to it, she not only filed her reply submissions with the Tribunal, but she also wrote to the Registrar of the Tribunal and alleged that the Vice-Chair of this panel was biased and asked for an investigation. The basis for the bias allegations was the conduct of the hearing, and in particular rested on Ms. Hudson’s assertion that the Vice-Chair had indicated by her comments that she sided with the Association and its counsel.

10. The Registrar forwarded the allegations of bias to the panel. This is in accordance with the usual approach where bias on the part of an adjudicator is alleged, and the panel of which the adjudicator forms a part, addresses the allegations in the first instance.

11. There is no doubt that the majority, and maybe even all, of the rulings that were made in the course of this hearing went the Association’s way. That is not because of bias: that is because the Association was represented by counsel familiar with the adjudicative process who made many fewer objections than she might have, and only when they were well-founded. By contrast, Ms. Hudson either did not or refused to understand: what the issues in the hearing were; what evidence was relevant to those issues; what the Tribunal’s Rules of Practice required; what the provisions of the Act required; and why certain documents placed before the Tribunal are considered to be evidence and others are not.

12. Much of Ms. Hudson’s focus is on the last day of hearing and the argument presented by Association counsel. Counsel observed that the Association is a small private sector employer under the Act and was not required to prepare a pay equity plan or use the PV analysis. Ms. Hudson interjected and asked for an explanation. Counsel explained the basis for her observation by reference to the provisions of the Act. Ms. Hudson indicated that she still did not understand. The Vice-Chair of the panel made a couple of attempts to explain to Ms. Hudson what counsel for the Association was saying, and why she relied on the sections of the Act to which she had referred. When it came time to hear from Ms. Hudson in reply, this was the area on which she requested and was granted the opportunity to file further written reply. As well, she indicated orally that it was not fair for counsel to rely on this argument since she had not been told about it earlier. The panel (through the Vice-Chair) explained that parties have to put one another on notice of the facts they rely on for their case, but that there is no requirement to put them on notice of the specific legal arguments they will be making based on those facts.

13. In her bias allegations, Ms. Hudson complains that the Vice-Chair sided with the Association on the question of whether it was an employer that had to prepare a plan and do PV. The Vice-Chair simply attempted, as she had done throughout the proceeding, to offer an explanation that would enable Ms. Hudson to understand and respond to the Association’s argument. No oral finding was made with respect to any part of that argument. Even if an oral finding had been made, however, it would not have been inappropriate for it to have been made at that time. The Tribunal has the authority to manage its own process and the hearing before it. It does not need to hear submissions or evidence on matters that are incontrovertible. It was on the same basis that the Tribunal indicated clearly at the outset of the proceeding that it had no jurisdiction to determine whether Ms. Hudson was paid fairly compared to persons performing similar or equivalent work for other employers.

14. Repeating the arguments of counsel to ensure that a self-represented party understands those arguments does not amount to siding with counsel or its client, nor does it amount to making a decision on the cogency of that argument. In any event, deciding an issue or making a ruling in favour of one party or another does not amount to bias. Decision making is what the Tribunal is expected to do.

15. We have determined that the allegations of bias must be dismissed.

Issues Addressed in this Decision

16. Ms. Hudson sets out the basis of her complaint in the statement of particulars included with her application. In its entirety, it reads:

17. My position is "Full Charge Accounting", not "Bookkeeper/Accounting Clerk", as I am in charge of and manage, under the direction of the Board of Directors, all the internal accounting of the Police Association with revenues in the low 7 figures, including a private club with revenues in the low 6 figures; all expenditures, trust accounts, year-end adjusting journal entries, as well as clerical and internal accounting administration of the entire local police service, which includes optional benefits. The signed "Terms of Employment" lists the duties of the previous secretary/bookkeeper, and are not accurate for the present duties which have evolved dramatically. The present duties are that of an individual requiring an accounting designation or equivalent.

18. Using the job evaluation tool of comparing Association positions to civilian police service positions was discarded because the Association's lounge staff other than the club manager, receives less remuneration than the lowest paid civilian; although all club staff including the club manager, receives gratuities which are not accounted for. They also rejected the use of a third patty consultant which violated my human right to have my position fairly analyzed for proper remuneration. The Space Toy Co. job evaluation tool was finally implemented after years of delay and was evaluated by a committee of two; the Administrator, whom diminishes my position and the Executive Officer, who was newly hired to the Association during their evaluation.

19. The Space Toy evaluation tool has completely failed, as the club manager, who's financial resources equates to a mere fraction of the accounting responsibilities, received 18 more points in this category alone, and the floor cleaner received 18 points for no financial resource duties at all. The club manager and assistant manager are in charge of club revenues which are a mere 15% of the revenues I am in charge of, and the club's expenditures are a vast 166% of club revenues, creating an annual loss of 66%, which is covered by the Association's membership. The club is a private lounge and miles apart from a commercial bar. The club's only duty is to serve its police members and would not exist if it had to sustain itself. The club often makes only one sale or a few sales a day; therefore the majority of the club manager's day is spent watching a 50" plasma TV. The Board of Directors makes all club decisions other than managing over a few part-time lounge staff. It is beyond comprehension that a private club manager could receive 100 more points than the accountant, and that the floor cleaner could receive more than half the points of the accountant.

20. The executive staff has not been included as male comparators, as they believe their job duties and compensation are foreign to the methods of compensation used to compensate alt other job classes. Pay Equity prohibits methods of compensation from excluding comparators; just as part-time hourly employees were compared to fulltime salaried employees and staff who received undeclared gratuities was compared to those who did not. Executive wages increase annually the same percentage as all other staff, and their benefits far exceed any other staff. The Administrator, who is the office manager and club overseer, is a civilian, has never been a police officer, and the value of his work is not measured as a police officer; he is simply compensated at 150% of the police base rate, which makes his remuneration very high in comparison to the other staff. The value of my work is not being fairly remunerated as my position is compensated the same as the Administrative Assistant's, although my knowledge and experience must be at a much higher level and my workload is 2 to 3 times heavier. These biased forms of remuneration amount to underhanded sexual discrimination within the organization. The Administrator's position is the most closely related to the accounting position in regards to administrative duties, and although my duties are completely foreign to the club manager's duties (alcohol server with shorter hours than mine) and floor cleaner, these were the comparators. The Administrator's position was filled the same manner as mine, as the final decision rested with the Board of Directors, however the club manager and floor cleaner were hired through acquaintances.

21. The remedial relief sought by Ms. Hudson in her application is as follows:

22. Order that the executive staff be included as male comparators.

23. Use the job evaluation tool of comparing Association positions to police service positions by scaling compensation levels to meet Association levels. Compare Police Chief to Association Administrator, police service accountant to Association accountant; police facility supervisor to club manager; and police garage attendant to Association floor cleaner.

24. Or, order the Association to hire an unbiased third party consultant to evaluated [sic] job positions for fair nondiscriminatory remuneration.

25. The Association requested that the Tribunal dismiss this application without a hearing for failure to state a prima facie case for relief. By decision dated February 3, 2010 we declined to do so.

26. At the outset of the hearing, we engaged in case management discussions with the parties.

27. One thing we clarified was that our scope under the Act is confined to determining whether there has been compliance with its provisions. The Act does not require an employer to match its employees’ salaries to those of a separate employer. There is no scope for the Tribunal to determine whether an employee’s compensation is fair having regard to marketplace factors. We indicated we would be making no inquiry into whether the Association should pay Ms. Hudson the same compensation as an accountant employed by the Police. It follows from this that the second head of relief set out in the application could not be ordered.

28. It is clear from the application that Ms. Hudson is complaining about how much she is paid relative to other employees occupying different positions with the Association. What is not always apparent from the application is how this situation is connected to the requirements of the Act. For example, she complains that her position is compensated the same as the Administrative Assistant’s but that she works much harder and should be paid more. It is difficult to see how this situation can be addressed under the Act given that the Administrative Assistant position is a female job class. The one area where Ms. Hudson’s complaint about her evaluation and compensation appears to engage the provisions of the Act is her suggestion in paragraph 3 of her Statement of Particulars that her job class was not appropriately evaluated on a factor relating to responsibility for financial resources.

29. Where Ms. Hudson clearly takes issue with the implementation of pay equity for the employees of the Association is in her contention that two executive positions – the Administrator and Executive Officer (“EO”) – should have been evaluated and “included as male comparators”. By this we understand that they should have been included in the male job classes used to draw the wage line for the purposes of the PV method of comparison. We do not understand Ms. Hudson to be taking the position that either the Administrator or the EO position would be an appropriate job-to-job comparator for her position.

30. The upshot of all of the foregoing was that it appeared to us from the following facts that there was no likelihood Ms. Hudson would stand to gain anything from this proceeding unless the executives were included in the wage line, particularly as she made it clear that the outcome she was seeking was a salary in the neighbourhood of $75,000.00. The wage line issue was one that it appeared to us might be heard expeditiously and we determined to proceed with it first. As it turns out, this is the only issue that needed to be addressed to dispose of this application, as becomes clear in the balance of these reasons. The factors that we discussed and took into account in dealing with the wage line issue first were the following:

a) Aside from the two senior executives, Ms. Hudson is the Association’s highest-paid employee;

b) Ms. Hudson did not receive an adjustment under the job-to-job methodology;

c) A lower-paid male job class received significantly more points under the job evaluation process than did Ms. Hudson’s job class;

d) The only factor Ms. Hudson had pinpointed in her application as having possibly been incorrectly applied to the evaluation of her job was the factor relating to financial resources;

e) The difference in the points and the magnitude of the salary differential enjoyed by Ms. Hudson made it unlikely that her objections to the evaluation of her job could lead to enough points to result in any pay increase unless the senior executive positions were evaluated and included for the purposes of drawing the male wage line.

The Facts

24. We heard testimony from Ms. Hudson and from Brad Boyce, the Administrator of the Association.

25. The Association has 13 employees. They are divided between “office” staff and “club” staff. The salaries for all staff with the exception of the EO and the Administrator are within the discretion of the Board of Directors to set.

26. Ms. Hudson is part of the office staff. The others are the Administrator, the EO, and the Administrative Assistant. Ms. Hudson has been employed by the Association since June 2003. The Association placed a small advertisement in the local paper (the Hamilton Spectator) seeking an “Experienced Accounting/Office Support Staff Person”, and Ms. Hudson applied. She was interviewed by a committee consisting of the Administrator, two members of the Board of Directors, and an office employee of the Association. The committee recommended that Ms. Hudson be hired, subject to approval of the full Board of Directors. Ms. Hudson’s letter of employment and Terms of Employment described her duties generally as follows:

27. Without limiting the generality of the following, the Accounting/Office Support Person’s duties shall include:

• type, electronic transcription and filing of all documents, records, minutes, etc., maintain and establish filing systems and office procedures,

• respond to routine inquiries in person and by telephone, maintain all financial ledgers, accounting records, payroll records, etc., receive, sort, record and distribute mail on a daily basis, order general office supplies, maintain stock control and inventory records, ensure proper maintenance of office facilities,

• perform any other job related duties as assigned by the Administrator.

27. In her application, Ms. Hudson identified herself as “Accountant”. This does not seem to be a job title that the Employer has ever used to describe her position. For the past several years the documentation suggests that the Employer has considered the position to be that of a Bookeeper/Accounting Clerk. In our view, nothing in this decision turns on the job title. We will simply refer to the position occupied by Ms. Hudson as the Accounting position.

28. Since at least 2005, Ms. Hudson has been attempting to secure a salary increase from the Association, based initially on her research into the salaries paid by employers in the Hamilton area to persons occupying what she identified as similar positions to her own. Subsequently, she sought to pursue her goal through the Act.

29. The club staff consist of the Club Manager; the Assistant Duty Club/Manager; the Cook; the Club Bartender; and the Kitchen Helper.

30. Initially, the Association conceived of itself as operating two establishments: the office and the club. Since neither had 10 or more employees, the Association concluded that the Act did not apply to it. A complaint was made to Review Services and the Association was advised, and accepted, that the Act applied and it must comply with it.

31. With the assistance of a Review Officer, the Association identified the following female job classes in its establishment: the Accounting position; the Administrative Assistant; the Club Bartender; and Kitchen Help. Only two male job classes were identified and evaluated for pay equity: the Club Manager; and the Caretaker. It appears that the “floor cleaner” referred to by Ms. Hudson in the Statement of Particulars attached included with her application should more properly be referred to as the Caretaker. We do not understand there to be any objection to the identification of the gender predominance of the job classes.

32. The Administrator and the EO consulted with the Review Officer over the selection of an evaluation tool. They considered using the tool that had been used to evaluate the Police jobs, but rejected it as inappropriate to capture the value of the Association work as it emphasized factors such as impact of errors, which could of course have life-or-death consequences in the context of policing. Eventually they settled on using a tool developed by the Pay Equity Office. They determined that it could capture the value of all the workplace jobs with the exception of their own, and discussed this with the Review Office who did not indicate that their view was unreasonable or inappropriate. The Administrator and EO positions were not evaluated.

33. All of the other job classes were evaluated using a point factor evaluation system consisting of 10 sub-factors. Each sub-factor consisted of 4 or 5 levels. The maximum number of points available under the system was 1000. Overall, the Responsibility factor accounted for 31% of the total score, with responsibility for Financial Resources accounting for 7% of the total score. The Financial Resources factor consisted of 4 levels. There has been no challenge to the propriety of the evaluation tool, or the weightings of the sub-factors. The Administrative Assistant and the Caretaker were evaluated at the lowest possible level for this factor. The Accounting position was evaluated at level 2, and the Club Manager at level 3.

34. The female job classes of Club Bartender (342 points) and Kitchen Helper (348 points) were compared to the Caretaker (334 points) using the job-to-job method of comparison, in accordance with a banding structure set out in the plan.

35. The Accounting position was initially evaluated at 599 points, but the Association subsequently revised its evaluation of the position on one sub-factor and the new point total was 613 points. The Administrative Assistant position was evaluated at 585 points. There was no job-to-job male comparator within the band for either of these positions. As noted above, the Caretaker was evaluated at 334 points. The Club Manager was evaluated at 699 points. The Association used the on-line regression tool on the web-site of the Pay Equity Office to draw a male wage line based on the point value and the compensation of these two male job classes, and to calculate whether adjustments were owing to the female job classes. The on-line tool calculated that no adjustments were owing to the Accounting position at 599 points, and counsel for the Association also used the tool to determine that no adjustments would be owing to the Accounting position at 613 points. Indeed, using that same on-line tool, the Accounting position would need to be evaluated at 724 points to generate even a $.01/hour increase so long as the wage line is determined by the value and compensation of the Caretaker and Club Manager only. Even if the Accounting position were evaluated at Level 4 (the highest available level) on the sub-factor of responsibility for financial resources, no pay equity adjustment would be warranted. During the course of the hearing, the applicant several times suggested that a fair and non-discriminatory salary for her would be in the neighbourhood of $75,000.00 annually. The adjustment required to achieve that level of earnings could not be generated using the Caretaker-Club Manager male wage line even if the Accounting position were rated at 1000 points (the maximum available).

36. There is no reasonable likelihood of a pay equity adjustment for the Accounting position as a result of a re-evaluation of the point score that position received on the only sub-factor (responsibility for financial resources) that she has identified in her application to the Tribunal as having been incorrectly applied. The only possibility for an adjustment (and we cannot know if it might lead to one or not) depends on a determination that the male wage line must be recalculated to include the value and compensation of the senior executive positions.

37. The Administrator and the Executive Officer positions are currently occupied by men. We do not understand there to be any disagreement that each position is a male job class. There is a dispute about whether they are “representative male job classes”. This dispute arises because the PV methodology in the Act stipulates that pay equity is achieved “for a female job class under the proportional value method of comparison … when the class is compared with a representative male job class or representative group of male job classes in accordance with this section …and when the job rate for the [female] 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”.

38. The Association takes the position that the Administrator and Executive Officer positions are not “representative male job classes”. The Association relies both on legal arguments based on the language of the Act about how we should interpret the term “representative”, and it also relies on factual distinctions between the Administrator and Executive Officer positions and the rest of the Association’s employees, particularly in respect of recruitment, compensation and reporting.

39. The Administrator is the most senior executive position in the Association. This position has been held by Mr. Boyce since late 2005. The Executive Officer reports to the Administrator. Mr. Boyce held the position of Executive Officer from 1991 until his appointment as Administrator.

40. Just as we did for the Accounting position, we are going to describe briefly what the documents that applied at their hiring say about the duties of the Administrator and the EO. This is simply for context. No part of this decision should be construed as constituting a finding that these are the actual duties performed by any of these job classes, or as constituting an evaluation of the work performed any of these job classes.

41. The Administrator’s duties are set out in Part III of the Association’s By-law No. 1 -2008 at paragraph 4:

42. Duties of Administrator:

The Administrator shall:

(a) perform all duties incidental to the office, and work in accordance with the directives and policies issued by the Board. The Administrator shall be a Member ex-officio of all committees and shall manage and supervise all Association staff on behalf of theBoard, and

(b) have charge of the seal of the Association and all articles incidental to the office and shall, in addition thereto, have the care, custody and responsibility of all books pertaining to the business of the Association, and

(c) have care and custody of the funds of the Association and deposit same in the name of the Association in such banks as the Board may direct, and

(d) have care and custody of the securities of the Association and may deposit same in a secure place to be provided by the Association for that purpose and the securities shall be accessible to any Board Director, and

(e) with the approval of the Board, invest and keep invested from time to time, the Association monies in such securities as may be invested by trustees according to law, and

(i) sign cheques and orders for payment of money and shall pay out and dispose of same under the direction of the Board in accordance with the By-laws, and

(ii) keep an accurate record of all monies received and disbursed to the satisfaction of the auditors and produce same for their inspection at any time, and

(iii) keep a petty cash account and may have on hand the sum of $100.00 and shall use such amount for the purpose of small expenditures incidental to his office, and

(iv) pay all accounts by cheque, signed by two Directors. Petty Cash accounts may be paid in cash and no cheque shall be signed in blank, and

(v) when receiving monies, issue a receipt therefore, and shall keep on file a duplicate of such receipt, and

(vi) prepare an annual report immediately after the close of each fiscal period in which the following shall be listed:

• the receipts and disbursements of that year in detail;

• a balance sheet describing the assets and liabilities of the Association at the close of the year;

• a record of all physical properties of the Association including such properties that are provided for and used by the Board and/or other Members of the Association; and such annual report shall be presented to the Annual General Meeting, copies of which shall be printed and distributed for the information of the Members, and shall be certified by the auditors of the Hamilton Police Association, and

(vii) obtain a written account for Directors' expenses. Such written account will be backed with receipts where available and practical. Allowance expenses are to be set from time to time by the Board. In the event the procedure is not adhered to, it will be the duty of the Administrator to bring the matter to the attention of the Board, and such Director shall be denied further expense money until the situation has been reviewed by the Board, and

(f) see that a proper record is kept of proceedings of all General Meetings of the Association and all Board Meetings. The Administrator shall have the proper minute and record books at every such meeting and other necessary books which are relative to the business to be transacted at such meeting, and

(g) keep a journal of all incoming and outgoing Association correspondence, and

(h) see that notices are posted at each Police Station of any General Meeting of the Association, and

(i) post in advance a list of dates for Board Meetings and, if possible, their location, and

(j) cause to be printed and distributed to all Association Members, a membership card, and

(k) give immediate notice in writing to any Member who has been suspended or expelled from the Association, or against whom a charge has been preferred, of the particulars of such charge and also give reasonable notice to Members concerned, of the date, time and place at which the hearing of the charge shall take place, together with such further notices as may be necessary to finally dispose of the charge, and

(l) see that the Constitution and By-laws are kept up to date with all changes and amendments and shall see that all Directors are supplied with a copy of same, and all subsequent changes and amendments thereto, and

(m) attend all meetings of bargaining between the Association and the Hamilton Police Services Board and shall ensure that the proceedings are accurately recorded by reliable means, and

(n) see that an original copy of every contract made between the Hamilton Police Services Board and the Association is retained in a suitable secure location, and

(o) be responsible for the development, negotiation and administration of the Collective Agreements and other contracts at the direction of the Board, and

(p) be responsible for discipline, grievance and arbitration management, including case preparation and presentation except where legal counsel is hired by the Board, at the direction of the Board, and

(q) ensure that all office records, systems and procedures are developed and maintained and ensure that all Association staff are properly supervised and operating in accordance with the direction and policies of the Board, and

(r) be responsible for advising the Board on all matters pertinent to the welfare of the Association and be accountable to the Board of Directors, and

(s) perform such other duties as directed to perform by the Board.

42. The duties of Executive Officer are also set out in the Association’s By-laws. By-law No. 1 – 2008 provides as follows in Part III:

43. Duties of Executive Officer

The Executive Officer shall:

a) perform all duties incidental to the office and work in accordance with the directives and policies issued by the Board. The Executive Officer shall be a Member ex-officio of all committees, and

b) be responsible for the administration of all Workers’ Compensation, medical benefits and insurance matters, and

c) assist the Administrator in matters of grievance, discipline, arbitration, collective bargaining and any other duties assigned by the Administrator or the Board, and

d) in the absence of the Administrator, perform all duties pertaining to the office of the Administrator.

43. The above description of the duties of the EO is substantially similar to the duties specified in the 1998 version of Mr. Boyce’s employment agreement, which states that the EO is accountable to the Administrator and subject to direction of the Board of Directors of the Police Association, and must comply with and uphold the Association’s Constitution and By-laws in carrying out those directions. With respect to duties and remuneration, the Agreement provides:

44. …………

Without limiting the generality of the foregoing, it is specifically acknowledged that the Executive Officer will:

(a) Assist in the development, negotiation and administration of the Collective Agreements and other contracts at the direction of the Administrator or the elected members of the Board.

(b) Assist in matters of discipline, grievance and arbitration management, including case preparation and presentation except where legal counsel is hired by the Board, at the direction of the Administrator or elected members of the Board.

(c) Be responsible for the administration of all Workers’ Compensation, medical benefits and insurance matters at the direction of the Administrator or the elected Board.

(d) Perform all duties incidental to the office and work in accordance with the By-laws of the Association and policies and directives issued by the Board.

(e) In accordance with the By-laws and the direction of the Board, attend meetings of the Police Association of Ontario; the Canadian Police Association; any other meetings [balance illegible on filed copy of Agreement].

The Executive Officer shall be paid a salary based on 130% of the prevailing rate of a First Class Constable.

44. The salary formula specified for Mr. Boyce in his capacity as EO is consistent with the provisions in By-law No. 1- 2008 for the two executive positions:

45. The Administrator and the Executive Officer are to be selected by the Board as non-voting, non dues paying Directors of the Board, and

a) Shall be under contract with the Association, the terms of which shall bind the Association and the Administrator or Executive Officer, and

b) Remain employed under the terms and conditions of the contract until the expiry thereof, or until such contract is otherwise terminated. The contract shall define and include the terms of employment, duration, remuneration (not to exceed 160 per cent for the Administrator or 130 per cent for the Executive Officer of a first class constable’s salary), working conditions, regulations or other things as might be negotiated at the inception of such instrument, and

c) NOTWITHSTANDING THE PRESENT BY-LAWS – The Administrator and the Executive Officer shall be under contract with the Association and will perform the duties set down by the Constitution and By-Laws and such other duties contained in the terms of the contract or as directed to perform by the Board.

45. Mr. Boyce does not have a policing background. Rather, he has a background in labour relations and he worked with the Steelworkers Union as a staff representative for 3 years prior to his becoming EO of the Association. While with the Steelworkers he represented members at various hearings, participated in collective agreement negotiations and had significant responsibilities in educating rank and file members how to represent workers in the grievance procedure and at arbitration.

46. Mr. Boyce’s background was somewhat unusual for an Association executive, most of whom had been employed by police services. Indeed, we heard that the executives’ salaries were expressed as a percentage of the first class constable salary precisely in order to facilitate recruitment from active police officers and that the EO salary is pegged just slightly higher than that of a staff sergeant. There have been two recent competitions for the position of EO, one in 2005 and one in 2007. We were supplied with the job advertisement for each, and the testimony was that it was published across Canada and that candidates were interviewed by the Board of Directors and subjected to rigorous written testing. The advertisement specifically mentions the desirability of candidates with experience in labour relations in a police setting. Furthermore, we were supplied with copies of the application letters received in response to the 2007 advertisement, and all but one of the applicants had worked as police officers. Indeed the successful applicant in that competition and the current incumbent of the EO position is Mike Cruse who has 35 years experience as a police officer. Additionally, we were supplied with a copy of Bulletin to the Association members from the Association Chairperson in 2005 explaining why Mr. Boyce was appointed to the position of Administrator at that time without a competition, and also how he had come “from outside” to be the EO some years previously. Mr. Boyce also testified that he had been advised in 1994 when the Administrator position became vacant that he could not apply because he had not been a police officer. It is apparent from the Bulletin that there was some concern raised again in 2007 that Mr. Boyce did not have a policing background:

In order to properly address the process I have to first address the unique way we do business here in Hamilton. Those of you around in 1990/91 when we first decided to expand our full time staff to include a second person, the Executive Officer position, you may recall that we required a person who had practical experience in a wide variety of Labour Relations matters including Collective Bargaining, WSIB and their complicated appeals process, the grievance/arbitration process, Employment Equity, Pay Equity, benefits administration etc. and with a willingness and dedication to learn the Police side of things such as Police Act Discipline and so on. This skill set was somewhat unique in policing as most, if not all other Associations contracted out the majority of this type of work and we (the PAO) didn’t have (and still don’t) have the educational programs in place for our members to learn these complicated issues. We have since developed some basic 1 or 2 day courses on some of these topics but for the most part our Labour education does not compare with that of some of the bigger unions. Given that we wanted to provide the best service to our members at a reasonable cost we elected to hire outside the organization for someone with these attributes and represent out members on these matters from within. Consequently we hired Brother Boyce who was on contract with the Steelworkers at that time and we have since represented our members on the majority of these issues from within which has allowed us to keep our dues at the lower end of the spectrum compared to the other major Associations.

That being said, with Administrator Doug Allan’s retirement, there was a need for the Board to assess how we were going to fill his shoes. Unfortunately Brother Allan wasn’t able to get the time he wanted from the PAO to give us more notice as they wanted the Labour Relations Expert to start on the 1st of January. With that the Board set aside a day to develop a process for his replacement and after bantering around a number of options the vast majority of the Board came to the conclusion that the best person for the job, the person who already had the practical experience in all the relevant areas, was Brother Brad Boyce….

As suggested by some of the complainants we could have held a process and Brother Boyce could have competed with everyone else but what are the chances of finding someone other than Brother Boyce within the Police Community who already has that skill set…

47. In late 2009 the Association underwent some organizational changes as a result of which the Administrator and the EO no longer sit on the Board, and there is now a full time President working in the office. The individual in this position is a former police staff sergeant.

Analysis

48. The Association is a private sector employer, with more than 10, but fewer than 100, employees. The Review Officer observed in his Notice of Decision that Part II of the Act does not apply to the Association. It was therefore not required to prepare a pay equity plan and was not required to use the PV method of job comparison. The Association nevertheless chose to prepare a plan and it chose to do PV.

49. Counsel for the Association suggested that because the Association had a choice about whether to do PV or not, the standard that we should apply to assessing how it did PV should be one of reasonableness rather than correctness. She also argued, however, that the Association did do PV correctly.

50. In our view, we can dispose of this application without considering what standard of review should be applied to a voluntary PV exercise. We are therefore proceeding directly to the question of whether the PV exercise the Association engaged in complied with 21.3(1) of the Act. In our view, even where an employer must comply with that section, there is a considerable discretion conferred with respect to the determination of what male job classes are “representative”:

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.

(2) Comparisons required by this section,

(a) for job classes inside a bargaining unit shall be made between job classes in the unit; and

(b) for job classes outside any bargaining unit shall be made between job classes that are outside any bargaining unit.

(3) If, after applying subsection (2), no representative male job class or classes is found to compare to the female job class, the female job class shall be compared to a representative male job class elsewhere in the establishment or to a representative group of male job classes throughout the establishment.

(4) The comparisons shall be carried out using a gender-neutral comparison system.

(5) Subsections 6 (6) to (10) apply, with necessary modifications, to the proportional value method of comparison.

51. The PV methodology provides a means by which the value/compensation ratio of female job classes in an establishment may be compared to the value/compensation ratio of male job classes in an establishment. The Act is clear that the value/compensation ratio of male job classes is to be determined having regard to one or more “representative male job classes”. The term “representative” is not defined in the Act, however its plain English meaning suggests a part standing in for a whole: clearly “representative” implies that it is not necessary to include “every” male job class in the PV analysis:

Representative: serving as portrayal or symbol that presents or can present ideas to the mind; representational; typical of a class or classes, containing typical specimens of all or many classes.

[The Concise Oxford Dictionary (7th Ed) (1982)]

52. A useful starting point for considering what “representative” might mean in this context is to recall the purpose of the Act, and the stage in the pay equity process at which the PV analysis occurs. The Act has as its overall purpose the redressing of “gender discrimination” in compensation for work performed by employees in female job classes. The process by which gender discrimination in compensation is identified involves multiple steps. The PV analysis occurs close to the end of the pay equity process – by the time it is over the only thing left to do is to state a protocol for paying out any required adjustments that have been identified. It is instructive to consider what steps have already taken place: job classes have been identified; their gender predominance has been determined; an appropriate evaluation tool has been selected; job data has been gathered and the job classes have been evaluated on skill, effort, responsibility and working conditions; the point value or ranking of the jobs has occurred; and any job-to-job comparisons between male and female job classes have been identified. All of the similarities/dissimilarities in the job duties and responsibilities and conditions under which it is performed have already been taken account of in the process. By the time the PV methodology is applied the exercise has become a mathematical calculation of determining the point value/compensation ratio that best reflects the prevailing non-gender-biased (i.e. predominantly male) wage line or formula that applies to the job classes in the establishment. In this context, “representative male job class” cannot mean job classes that are “representative” of the duties performed in the work place or that perform like duties to female job classes. Rather, it must mean male job classes that are “representative” or reflective of how the employer compensates its employees when not influenced by gender-bias about the value of women’s work. We therefore reject Ms. Hudson’s submission that the EO and Administrative job classes are representative because they work in the office along with her, and the Club Manager and Caretaker are not because their duties are dissimilar.

53. The Act has a targeted purpose: the redressing of “gender discrimination” in compensation. There may be a variety of factors that influence how employees are paid: who their employer is and what its sources of revenue are; where they work (the economic conditions of the local market); whether they are unionized; the bargaining strength of their union; whether they possess skills that are in short supply. The Act does not aim to “undo” or redress the effect of any of these factors, but is rather respectful of them, as reflected by the following stipulations applying where pay equity plans must be prepared:

• Each employer must examine its own compensation practices. There is no industry-wide or broader comparison required (section 7(1)).

• The examination of compensation practices for each employer occurs on an establishment by establishment basis (i.e. by geographical location) (sections 7(1) and 13(1)).

• There is a separate examination of compensation practices and a separate pay equity plan required for each “group” of employees in an establishment, that is for each bargaining unit in an establishment and for the unorganized employees in that establishment (section 14(1)).

• Male job class comparators for female job classes are sought in the first instance within the same employee “group”. Representative male job classes for the purposes of PV are also sought in the first instance within the same employee “group” (sections 6(4) and 21.3(2)).

• After pay equity has been achieved, differences in compensation between a female and male job class need not be redressed if they are the result of bargaining strength (section 8(2)).

• Where a male job class of equal value to a female job class is paid an inflated rate because of a skills shortage, that difference is permissible, and no adjustment to the female job class rate is required (section 8(1)(e)).

54. The above observations provide some guidance about what might be considered a representative male job class for the purposes of PV. Representative male job classes are those that will best reflect the value/compensation ratio at which male job classes in the “group” are compensated. They should therefore be job classes within the same employee “group” where that is possible, and should not include a job class that is paid an anomalous rate (like the inflated rate of the male job class with skills that are in short supply). These points are addressed in a publication of the Pay Equity Office that Ms. Hudson relied on in her evidence: Step by Step to Pay Equity: Volume 3 -- Using the Proportional Value Comparison Method. This publication clearly states that jobs that are paid much higher or much lower than their value are not to be included because they will distort the wage line. We agree with this observation.

55. There are several features of the EO and Administrator job classes that make them in our view not representative male job classes for the purpose of drawing the PV analysis here. In the first place, the rationale for not evaluating these jobs was that the evaluation tool could not accurately capture and value their work. This was Mr. Boyce’s view, expressed to the Review Officer (who did not insist that the executive job classes be evaluated), and expressed in this hearing. Ms. Hudson did not dispute that his view was accurate. She also took no issue with the choice of the evaluation tool. If the job classes cannot be evaluated by the same tool as the other job classes in the establishment then they cannot be used as representative male job classes for the PV analysis, which involves the determination of a value/compensation ratio based on the use of a consistent tool.

56. Even if Mr. Boyce’s unchallenged statement about the ability of the tool to capture and evaluate the EO and Administrator job classes was incorrect, we are left with the situation where these two job classes are paid significantly more than the other two male job classes: the Caretaker and the Club Manager. Even if we assume the best case for Ms. Hudson that the two job classes could be evaluated by the tool and would each receive the maximum points (1000) available under it their value/compensation ratios based on job rates of 130% and 160% of a First Class Constable’s salary ($69,194.00 in 2005), are so dramatically different from the value/compensation ratios of the Caretaker (344 points and $11.44/hour) and the Club Manager (699 points and $21.87/hour) that they can only be characterized as anomalous. Finally, and most significantly in our view, because the job rate of the EO and the Administrator are dictated by the By-laws of the Association and pegged to an external referent (the salary of a First Class Constable with the Police), they cannot be said to accurately reflect the way that the Association has determined it will compensate its male job classes based on the value of their work. They are not “representative” of the male wage rates determined by the Association.

Conclusion and Disposition

57. It was not necessary to consider Ms. Hudson’s allegations that her job was undervalued. Even if Ms. Hudson’s job class were re-evaluated and scored the maximum number of points on the job evaluation tool used in this work place, it would not receive a pay equity adjustment based on the male wage line that was used in the preparation of the plan. That wage line was drawn using the only “representative male job classes” in the establishment. The Administrator and the Executive Officer are male job classes, but their rate of compensation and the means by which it is set are anomalous and not reflective of the overall compensation practices of the Association. They are, therefore, not “representative male job classes” and are not appropriate to include for the purposes of determining the male wage line for the PV comparison method stipulated in the Act.

58. For all of these reasons, this application is dismissed.

Dated at Toronto this 19th day of October, 2010.

“Mary Anne McKellar”

Mary Anne McKellar, Vice-Chair

“Catherine Bickley”

Catherine Bickley, Member

“Margaret Kvetan”

Margaret Kvetan, Member