Canadian Union of Public Employees, Local 543.3 v. Windsor-Essex County Health Unit, 2010 CanLII 61201

PAY EQUITY HEARINGS TRIBUNAL

0958-09-PE Canadian Union of Public Employees, Local 543.3, Applicant v. Windsor-Essex County Health Unit, Respondent.

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

APPEARANCES: Mary Cornish, Janet Borowy, Steve Kenney, Pierina DeBellis, Katherine Barrette, Jan Filman, Sharyn Briscoe appeared for the applicant; Marilee Marcotte, Sharon Kelly and David Gore appeared for the respondent.

DECISION OF THE TRIBUNAL: October 20, 2010

Introduction

1. This is an application by the Canadian Union of Public Employees, Local 543.3 (“CUPE” or “the Local”) for review of the Order of Review Officer Doreen Lurie dated July 7, 2008 (“the Order”), directing CUPE and the respondent, the Windsor-Essex County Health Unit (“the Health Unit”) to implement the results of their joint job evaluation process by making adjustments in accordance with a proportional value (“PV”) method of comparison retroactive to January 1, 2006.

2. The application was filed with the Tribunal on June 29, 2009.

3. CUPE claims that the Health Unit had agreed to make adjustments in accordance with a Combined Method of job-to-job and PV comparison (“the Combined Method”), and that this is required by the provisions of the Pay Equity Act, R.S.O. 1990, Chapter P.7 (the “Act”). CUPE further maintains that the stipulation of January 1, 2006 as the retroactive date was contingent on the use of the Combined Method. CUPE asserts that we should order interest on any amounts found owing.

4. The Health Unit seeks to have the application dismissed.

Decision

5. The application is dismissed.

The Facts

(a) Background

6. The parties filed an Agreed Statement of Facts. It is set out below (with the references to the supporting documents deleted):

1990 Pay Equity Plan

1. The Union and the Employer, as a public sector employer, negotiated a pay equity plan, which was posted on January 1, 1990. The Plan referred to 10 female job classes and 2 male job classes with 12 point bands. It was based on the proportional method of comparison even though such method was not authorized by the Pay Equity Act in force at that time and there were only two male comparators. The proportional value method was not legislated until the 1992 amendments.

2. The Plan was based on using the agreed upon Windsor-Essex County Health Unit - CUPE 543.3 Job Rating Manual based on a point factor job evaluation method and using the Job Evaluation Position Questionnaire to collect job content.

1993 Job Evaluation and Pay Equity Maintenance Agreement

3. On November 19, 1993, the parties signed a Manual of Procedure for Joint Job Evaluation Program whereby the parties agreed to review changes to all job descriptions by joint evaluation within a five year period from the previous evaluation. The parties established a Joint Job Evaluation (JJE) Committee composed of representatives of the Union and the Employer in order to evaluate all bargaining unit positions every five years to ensure that they were consistently, accurately and in compliance with the Pay Equity Act. The Manual provided for an ongoing maintenance system for the Job Evaluation Program.

4. In late 2004, as part of this ongoing maintenance process, the parties met to discuss the need to revise the job questionnaire and the job evaluation tool. In May 2005, the parties discussed the generic nature of the evaluation tool and the improvement of evaluation methods since the original Plan was prepared. Both parties agreed that the job questionnaire and the job rating tool needed to be updated and improved to ensure that all jobs within the bargaining unit would be fairly evaluated in accordance with the Pay Equity Act.

5. The JJE Committee subsequently included CUPE's National Job Evaluation Representative, Jan Filman, and the employer's Pay Equity Consultant, Dave Gore, from Watson Wyatt.

6. The JJE Committee developed a new "Job Analysis Questionnaire for CUPE Local 543.3 and the Windsor Essex Health Unit".

7. In July 2005, the parties also finalized the agreed upon revised job rating manual entitled "CUPE Gender-Neutral Job Evaluation Plan for CUPE Local 543.3 and the Windsor-Essex County Health Unit."

8. On August 31, 2005, the parties again entered into the following Letter of Understanding, which continued to form part of the Collective Agreement.

The parties agree that the Job Evaluation Agreement currently in effect and as amended from time to time will govern the classification of new jobs and reclassification of existing jobs. The Job Evaluation Agreement (Manual of Procedures for Joint Job Evaluation) dated November 19, 1993 is an Appendix to this Agreement".

This Letter of Understanding continues to be in the parties' collective agreement.

9. On October 25, 2005, at the conclusion of the job content collection process, Jan Filman provided job evaluation and pay equity training for the JJE Committee members.

10. From November, 2005 onwards, the JJE Committee proceeded to review the questionnaires and rate the jobs using the new tool. This process was completed in early 2006 with the parties agreeing to a revised evaluation hierarchy for all the positions. The process revealed that there had been significant pay-equity related changes in the work of the male and female job classes.

11. The parties then proceeded to schedule meetings to discuss and agree upon the remaining issues, including the weightings for the factors, the process for creating the comparison bands and adjusted salary rates for the jobs which had been evaluated.

12. On or about May 10, 2006, the parties met and their discussion included various weighting and banding proposals, the appropriate gender dominance of various jobs and the current pay grids and numbers of incumbents. The parties agreed on the gender dominance of the job classes. The Employer advised it only had a mandate to address pay equity at this point and that internal equity would need to be deferred to the next contract. The parties agreed to consider the other issues and meet again on June 29, 2006.

13. The parties had further meetings but are not agreed on the content of those meetings.

14. On December 6, 2007, the Union filed an Application to Review Services.

15. As indicated in the introduction to this decision, the Order issued on July 7, 2008. It directed the Health Unit to implement a plan based on the PV method of comparison and to pay the required adjustments within 90 days. The Health Unit did so.

16. The 1993 Manual of Procedures referred to in the Agreed Statement of Facts provides for the review of the plan every 5 years. Where new job evaluations are conducted pursuant to this protocol. Article 4.4(c) stipulates that “the job shall be assigned to the appropriate classification commencing the original date of submission to the JJE”. The parties have continued to incorporate reference to the applicability of this protocol in all of their collective agreements concluded since 1993.

17. The 1990 Plan was posted and deemed approved under the Act. The parties banded comparably valued jobs together and created pay bands which were incorporated into the collective agreement. Until 2004, when the chain of events at issue in this proceeding commenced, the parties continued to evaluate jobs in accordance with the evaluation tool used to prepare that plan, and to slot them into the pay band correlated with jobs of that range of values.

18. The parties’ efforts commencing in 2004 and thereafter to revisit questions of job evaluation and compensation in the bargaining unit occurred pursuant to the agreement of the parties and the review schedule contemplated in the Manual of Procedures. The parties were having increasing difficulty applying the evaluation tool to the jobs in the workplace. Some of those jobs were new, and some had changed.

(b) The Witnesses

11. Much turns in this case on what occurred at several meetings between the parties. The meetings in question occurred on May 10, 2006, June 29, 2006 and January 17, 2007. Jan Filman and David Gore were in attendance at these meetings and testified about what occurred. In addition, there were several sets of notes taken by other participants, and both Gore and Filman were questioned about the accuracy of their contents. What occurred after the January 2007 meeting is largely chronicled through a series of e-mails on which either or both of Gore and Filman were authors or recipients. In addition, there were meetings in May and June 2007, and we make some reference to them in these reasons.

12. Jan Filman was, until her retirement in January 2009, a National Job Evaluation Officer with CUPE. She was contacted by the Local in late 2004, and she became involved in the deliberations of the JJE in early 2005, and participated in the creation of the Job Rating Manual and the questionnaire. Pierina DeBellis, whose name also comes up in some of the documentation filed, was the CUPE National Servicing Representative assigned to the Local. Ms. DeBellis did not testify.

13. The most comprehensive of the notes chronicling what was discussed at the meetings between the parties were made by a Local member of the JJE, Sharyn Briscoe. She attended the hearing, but did not testify.

14. David Gore was retained by the Health Unit to assist with the pay equity process. His involvement commenced in or around September 2005 before the questionnaires were returned and the rating of jobs commenced. Both Gore and Filman participated in a training session for the JJE and also became involved from time to time with issues (such as sore-thumbing) related to the ratings. They also communicated with each other on technical matters that went to the development of the plan based on the evaluations that had occurred - weightings and bandings and various options.

15. Sharon Kelly attended these proceedings as a representative for the Health Unit. She was also a member of the JJE. She did not testify in these proceedings, although a number of documents either authored or received by her were introduced into evidence. They were primarily, if not exclusively, communications to which Gore and/or Filman were also privy.

16. Nancy Smith also testified in these proceedings. She was not involved (at least not materially) in the chain of events commencing in 2004, but she had previously been involved (as a CUPE member and elected official) in the development of the 1990 Plan and the reviews that occurred each 5 years. Her testimony was largely confined to those matters, none of which we have found it necessary to address in this decision.

(c) 2004 to April 2006

17. In the summer of 2005, the parties agreed upon a new job rating manual and tool and upon a new questionnaire to distribute to collect job information from all of the job classes in the bargaining unit. October 18, 2005 was stipulated as the deadline for the employees to submit completed job questionnaires. Filman testified that many questionnaires were not in fact submitted until after that date. Training for the JJE in the application of the new tool and rating manual occurred on October 25, 2005. The rating process itself occurred beginning in November 2005 and was completed approximately six months later.

18. Prior to May 10, 2006, the parties had agreed on the following: (1) the identification of job classes; (2) the tool (a point factor evaluation system) to be used to evaluate them; (3) the value of each job class under the tool. They had neither agreed on the gender predominance of the job classes nor on the weights to be assigned to each factor. While they had agreed on the principle of banding, they had not yet agreed on the point value at which the bands should begin, or the width (number of points encompassed) of each band.

19. The parties had also not agreed on one fundamental aspect of their project: were they engaged in evaluating jobs solely for the purposes of addressing pay equity concerns (i.e. the compensation paid to undervalued female job classes), or were they were also intending to address issues of internal equity (i.e. the compensation paid to all undervalued job classes regardless of gender predominance)?

(d) May 2006 and June 2006

20. Filman and Gore exchanged a number of weighting models prior to the May 2006 meeting. It is not apparent from the e-mail correspondence between them that these were exchanged with any of the JJE members prior to that meeting. Indeed, the course of the written communications between Gore and Filman indicate quite clearly that each of their respective clients was relying on them for technical expertise in the pay equity process.

21. At the May 2006 meeting it appears that the parties agreed on the gender predominance of the job classes, and discussed various weighting and banding scenarios (presumably the ones on which Gore and Filman had had their exchange), but that they left decision making on the latter issues to the next meeting. As set out in the Agreed Statement of Fact, the Health Unit stated at this time that it had no mandate to implement internal equity, but wished to defer that discussion to the next round of collective agreement negotiations. The Local had a desire to accomplish full internal equity, and continued to propose it right up until the January 2007 meeting between the parties.

22. Both Filman’s notes of the June 29, 2006 meeting, and those of Sharyn Briscoe, are consistent in clearly indicating that the parties reached agreement on weighting and on banding at this meeting. Briscoe’s notes also record in some detail an exchange of proposals made by the parties. Filman in her testimony took issue with the accuracy of Briscoe’s notes. We detail the dispute below.

23. Prior to the June 29, 2006 meeting, Filman had created some documents in which she generated a male wage line and applied it to a variety of banding scenarios to determine a job rate for each band. The variables that she considered included such things as the width of the bands (i.e. the number of points per band); the starting point of the bands; and whether the wage rate for the band was determined at the mid-point wage rate or the maximum wage rate. These documents indicate, for each band, the amount of any adjustment required for any job classes in the band, as well as the amount by which any job class in a band was paid at a rate above the rate generated for that band. In the latter case, the discrepancy between the actual job rate and the band rate was expressed as a “red circle” amount. Positive adjustments were identified as “green circle” amounts. This terminology is consistent with the parties’ Manual of Procedures. Filman’s documents do not specifically identify or quantify any adjustments based on job-to-job comparisons. Because the documents list each job class and its gender incumbency, however, it is possible to ascertain from them where there are male job classes in each band available for a job-to-job comparison with the female job classes in that band, and what dollar/hour adjustment that methodology would generate.

24. Both Filman’s and Briscoe’s notes appear to indicate that the Health Unit offered to make both the pay equity and internal equity adjustments required under a PV comparison method adjusting to the male wage line at the mid-point of each band, but without any retroactivity. Filman also agreed in her testimony that this had occurred. Sharyn Briscoe’s typed notes indicate that CUPE made a counter-offer based on a mid-point PV adjustment methodology retroactive to January 1, 2006.

At the June 21, 2007 meeting, the Health Unit reverted to proposing a PV-only maintenance plan. The Local insisted on using job-to-job and PV with full retroactivity to January 1, 2006. Gore was at this meeting. Filman was not.

25. Filman testified that Briscoe “did not understand” what she was writing, and that no proposal was made. She also indicated that she had no knowledge of the source of the band rates Briscoe had listed. Filman’s own notes indicate that the Local’s response was “ interested in doing full I/E …salaries as … except Bands 5,6, 7 an issue…retro to Jan 1/06…full protection of red-circled incumbents”. Her notes then conclude: “Mgt will look at Bands 5, 6, 7 & respond to us…Ball is in their court.” Filman’s notes also refer to a matter not included in Briscoe’s notes, and it relates to the issue of dental assistants. This is a female job class which would not benefit under a purely PV method of comparison. It appears from the notes that the Health Unit was prepared to adjust the wage rate for this job class based on the job-to-job methodology.

(e) January 2007

26. The parties met again on January 16, 2007. Filman’s notes record that it was a meeting to “look at bands & $”. Her notes then indicate “go forward with banding structure”. It is difficult to know what this might mean. The parties had already agreed in May of 2006 that the bands should be at 35 point intervals, beginning at 150 points. The following remarks in the notes suggest that what was being referred to was the monetary implications of accepting the mid-point adjustment under PV: those following remarks indicate that there are a “significant # of jobs with some adjustment PE” and then refer to “retro?” and to the possibility that 13 job classes would be “red circled”. In the following portions of the notes there are references to two options: “pe and retro” or “pe and ie”. There is an indication that the Local is interested in the latter option, and then there is some discussion of PV rates recorded and two costing numbers, one $96,000 and the other $95,000. The final note of significance to this process is marked with an arrow. It says “do PE only with retro back to Jan 1/06”.

27. Ms. Briscoe’s notes record that Gore made the following proposal at the meeting:

After deliberation, D. Gore proposed that management was willing to initiate Pay Equity for seventeen (17) positions, including 2 gender neutral positions, authorize retroactive pay for a period of six (6) months from today’s date, and any increase in band rates would be dealt with during collective agreement negotiations.

28. The next entry in Briscoe’s notes states:

J. Filman proposed that Pay Equity be implemented in its entirety for seventeen (17) positions, retroactive pay would be issued from January 2006. In addition, management would agree to meet to discuss band rates prior to the start of bargaining for the next collective agreement.

29. The notes indicate that this proposal was accepted by the Health Unit, and that Filman was to draft an agreement and forward it to Gore for approval.

(f) the Aftermath of the January 16, 2007 Meeting

30. Filman prepared a plan (“Pay Equity Maintenance”) and forwarded it to Gore on or about Thursday, January 18, 2007. It included the following statement: “Pay Equity was achieved by identifying male comparators in each band. Proportionate Value using the mid-point of the male salary line was agreed upon where there was no male comparator”. The adjustments indicated in the plan were based on the Combined Method. There is no dispute that this was a more costly outcome for the Health Unit than a plan based solely on the PV method of comparison would have been.

31. There is no dispute that the parties had discussed the cost implications of what they were negotiating. At several points in her testimony Filman stated that all of the Health Unit’s costing estimates were based on the use of the Combined Methodology. Subsequently, she admitted that she did not know what it was based on. Gore testified that the costing calculations had all been based on the use of PV only.

32. Gore and Sharon Kelly were in immediate contact, and their contemporaneous e-mail exchange (on Monday and Tuesday of the following week) reveals considerable surprise at the inclusion of adjustments based on the job-to-job method of comparison. Gore advised Kelly in mid-March that he had had a telephone call with Filman in which his matter was discussed. Kelly was prepared to try to salvage the situation, however, and a lengthy exchange of e-mails between Kelly and Gore and Filman ensued. Kelly proposed a compromise in which the total amount of retro paid would be reduced and paid in two installments. These proposals were an attempt to keep the cost of the plan in line with what the Health Unit had determined was the cost of a solely PV-based plan.

33. The spreadsheet forwarded by Kelly to Filman on March 23, 2007 clearly indicates: Effective January 1, 2007, 50% of PE rate; effective July 1, 2007, 100% of PE rate, and also indicates “retroactive for 2006 calculated in the same manner”. Subsequently, on April 17, 2007, Filman e-mailed another copy of the document Pay Equity Maintenance to Kelly and DeBellis. In it she included new language about retroactive pay that provided for it to be paid in two installments, but that did not clearly capture that the total amount of the retro pay would be less than 100%. This prompted Kelly to send another e-mail to Filman and DeBellis on April 17, 2007. It reads as follows:

I’m assuming that you were in agreement with my calculations of the PE rate and implementation of same. If so, then I think we should be more specific in the retro clause. It is 50% of the rate owing at January 1, 2006 and then the balance of the rate at July 1, 2006 for the retroactivity, which is 75% of any monies owing. Then January 1, 2007, 50% of the PE rate will be added and on July 1, 2007, the balance of the PE rate will be added.

Could we all attempt at saying any variation of the above so that we all agree on the wording?

34. DeBellis forwarded Kelly’s e-mail to the Local members and asked them to check their notes to see if it reflected the deal they thought they had reached. They were surprised and confused. Apparently there had been some discussion between the Local and DeBellis subsequent to January 16, 2007 in which the Local had indicated that two installments totaling 100% of retro would be acceptable, but they were not prepared for what Kelly’s document now contained. There is a string of e-mails evidencing this confusion, and Filman was copied in on them on April 18, 2007. Despite this, Filman e-mailed Kelly back as follows on April 20, 2007 in response to her e-mail about the drafting of the retro clause: “I was struggling with how to word the retro piece. I didn’t want to spark any PE complaints. Go ahead and put it to words.” There is no indication that Filman ever advised Kelly that the Local had only just learned of what the two of them had been discussing for the previous 6 weeks or so, and that it might not be in agreement with the compromise proposed.

35. Kelly and another management member of the JJE met with the Local members on May 2, 2007. Neither Filman nor DeBellis attended. Briscoe’s notes of the meeting reflect the following:

S. Kelly clarified the formula used to calculate rates of retro-activity pay. As per agreement with J. Filman and P. DeBellis of C.U.P.E and due to budgetary constraints, she clarified that retro-activity would be paid out at a total of 75% of monies owing, as opposed to 100%.

36. The Local members went off to make inquiries of DeBellis and Filman.

37. On May 16, 2007, the Local Chair wrote a lengthy e-mail to Kelly, which referred to the fact that DeBellis had received the Local members’ agreement to full retro being paid in two installments, but that was the extent of the concession made. The e-mail states: “Neither Jan nor Pierinna [sic] agreed to the document you presented to us for signature on May 2, 2007 as was suggested”. Kelly replied the next day, indicating that the management members of the JJE would like to meet with “the individuals who have the authority to negotiate a maintenance plan for CUPE Local 543.3” and offering several dates for a meeting.

38. A meeting was scheduled for June 21, 2007. In preparation for it, Gore wrote a Report and Recommendations for Pay Equity Maintenance for CUPE Local 53 [sic] Windsor-Essex Health Unit, which can be briefly summarized. It recounted the chronology of the parties’ meetings and exchanges from June 29, 2006, emphasizing that, in the Health Unit’s view, all parties thought they had concluded everything but the drafting of the agreement when they met in January 2007 and the Health Unit expected to see a PV-only calculation of adjustments because job-to-job had not been discussed. When it got the draft based on the Combined Method, Filman was advised of the Health Unit’s concerns. Kelly and Filman then looked at how a Combined Method plan might be implemented, and came up with a mechanism and agreement in principle on how to do so, but that the Local had not been apprised of these discussions and would not agree.

39. At the June 21, 2007 meeting, the Health Unit reverted to proposing a PV-only maintenance plan. The Local insisted on using the Combined Method with full retroactivity to January 1, 2006. Gore was at this meeting. Filman was not.

40. The parties exchanged some correspondence following the June 21, 2007, but both were essentially immovable and their dispute ended up at Review Services, resulting in the issuing of the Order that is the subject of this application.

(g) Our Findings of Fact

41. The crucial factual question is whether the parties had agreed on or before January 16, 2007 to apply the Combined Method to determine wage adjustments.

42. CUPE’s position is that they did. The Health Unit says there was no such agreement.

43. CUPE’s case rests entirely on the testimony of Filman. That testimony (and the documentary record) does not support a finding that the Health Unit agreed in January 2007 (or at any earlier date) to use both the job-to-job and the PV method of comparison.

44. There are a number of significant inconsistencies in Filman’s testimony. In her examination-in-chief she said that the Local made it clear to the Health Unit at the January 2007 meeting that if internal equity was not being implemented, pay equity implementation would require the use of the Combined Method. In her cross-examination, however, she said she did not recall specifically discussing that both methodologies must be used. In her re-examination, she says she “understood” that because the parties were implementing pay equity only they would have to comply with the Act, and in her view, complying with the Act required the use of the Combined Method.

45. Filman also maintained (more than once) in her examination-in-chief that she never understood that the Health Unit had a problem with the Combined Methodology she had used to prepare the draft plan. She repeatedly stated that the only problem related to the amount of the retroactive adjustments. She even asserted that all the Health Unit’s costing estimates were based on the Combined Methodology. Ultimately, in her cross-examination, she conceded both that she did not know what the Health Unit had based its costing on, and that she knew that the methodology (and not just the amount of the retroactive payments) posed a problem for the Health Unit.

46. There are a couple of other aspects of Filman’s testimony that cast some doubt on its reliability. She testified that she had no independent recall of what had happened at various meetings and had to rely on notes of those meetings to refresh her memory. Indeed, she even initially testified that she could not recall if Gore communicated to her that the Combined Methodology was a problem or that it was not what the employer was expecting to see. This seems to us to be a rather significant matter on which to have no recall whatsoever, particularly given how rapidly the parties’ relationship spiraled downhill afterwards. The lack of any recall of what might have been communicated to her on this very significant issue is even more surprising given the certainty with which Filman initially testified (despite the absence of any notes on the issue that might have refreshed her memory) that Gore had called her from the May 2007 meeting using DeBellis’ cell phone, and had privately agreed with her that they had “had a deal” to use the Combined Method in January 2007. As it turns out, her certainty was misplaced, as neither Gore nor DeBellis attended that meeting. Gore did attend a meeting the following month, but it seems hardly likely he would have agreed with her at that point that the parties had a deal in January 2007 to use the Combined Method. Not only is that inconsistent with the content of his contemporaneous e-mail exchanges with Kelly, but is also inconsistent with the contents of the written report he prepared for and went through at the meeting, and which we summarized earlier. Further, Gore recalled that he tried to call Filman from this meeting, but was unable to reach her.

47. We are troubled by the inconsistencies in Filman’s testimony and by the gaps in her recollection of the content of her communications with Gore. Our review of her notes is of little assistance in reconstructing what occurred – the notations are quite fragmentary as some of the excerpts reproduced attest, and it is rarely clear whether what is recorded is a note she made to herself, or something one of the parties said, and if so, which party said it. Her testimony and her documents leave us with a rather ambiguous account, from the applicant’s perspective, of what occurred. Many of these ambiguities, it appears to us, might have been cleared up had Sharyn Briscoe testified. She took very detailed notes at the meetings and then typed them up and circulated them. These notes clearly identify when the parties are communicating to one another and what each of them said. Although Filman described Briscoe as “secretary” to the JJE, she disagreed when counsel for the Health Unit described her as a “recording secretary” or suggested that the documents she generated should be viewed as minutes (even though there is an e-mail filed in which Briscoe herself appears to characterize them as minutes). It is hard to conclude other than that Filman was seeking to cast doubt on the accuracy of the Briscoe notes because, in the portion we reproduced earlier, they clearly chronicle that at the June 29, 2006 meeting the Health Unit proposed a PV plan with pay equity and internal equity adjustments to the mid-point of the band, and the Local countered with a PV plan with pay equity adjustments to the mid-point of the line and retroactive pay to January 1, 2006. Such a proposal on the Local’s part would of course be inconsistent with Filman’s assertion that PV was only discussed in the context of, or could only be appropriate for, a plan accomplishing internal equity. When asked about this aspect of Briscoe’s notes, Filman said, “she does not understand what she is talking about”. We draw an adverse inference from the applicant’s failure to call Briscoe to testify: we conclude that she did in fact understand and accurately recorded the proposal made on behalf of the bargaining agent and that it proposed a pay equity plan based solely on PV.

48. CUPE has not advanced any persuasive evidence that the parties directed their minds towards using the Combined Method throughout the bargaining unit jobs. It is true that they did discuss using job-to-job for the dental assistants, but the specificity of that discussion in our view supports the conclusion that what they were otherwise talking about was using PV alone. This conclusion is also supported by the references to in all the notes of the meetings to the number of jobs that would be “red-circled” and to “grandparenting” of the incumbents, which Filman identified as problems resulting from the application of the PV methodology. Finally, Filman testified that so long as the parties were continuing to keep the possibility of accomplishing internal equity as an option, it was understood that PV would be the methodology to be used. As noted above, the parties, continued to talk about internal equity right up to and including the January 16, 2007 meeting.

49. Gore testified that the Health Unit always thought that the parties were talking about using the PV methodology for the whole bargaining unit (with the possible exception of the dental assistants). Gore and Kelly’s immediate response when they got Filman’s Pay Equity Maintenance document reflected this understanding that the parties had agreed to PV alone.

50. The Health Unit raised its concern with Filman, and talks of how to salvage the situation ensued. What is truly unfortunate is that no one ever apprised the Local members of the JJE committee that there had been a misunderstanding between the parties as to the terms of their agreement, much less that negotiations to salvage the situation were ongoing. The situation was salvaged to the extent that the Health Unit was prepared to agree to a plan based on the Combined Method given some concessions on retroactivity and implementation dates, but because the Local was not kept apprised of developments as they occurred, it only became aware that there was a problem at the point that the Health Unit proposed an agreement using the Combined Method but “fudging” on the retro amount and implementation date. At that point it appeared to the Local that the “retro” issue was the problem, and that the Health Unit (which had candidly shared its costing estimates with the JJE) had made a miscalculation and now did not want to pay for what it had promised. Much of the deterioration of the situation between the Local and the Health Unit must be laid at the feet of the CUPE representatives failing to keep the Local apprised while clearly appearing to the Health Unit to be negotiating on their behalf.

51. In short, as a factual matter, we cannot conclude that the Health Unit ever agreed to a maintenance plan utilizing the Combined Method.

52. By contrast, we do find that the parties agreed to a retroactive date of January 1, 2006. All the documents generated by CUPE, even after this issue came before Review Services, insisted on that. Filman characterized the agreement on the retroactive date as part of a “package”, but never testified as to whether (and, if so, when or how) that was made clear to the Health Unit, or why other things like weightings and banding and gender predominance were not also part of the package. In any event, using January 1, 2006 as the retroactive date appears to us to be consistent with the parties’ agreement set out in Article 4.4 (2) of the 1993 Manual of Procedures, which provides for new classification rates to be applied from the date on which the job content information came to the JJE committee. Here we know that many of the questionnaires were submitted late and that the JJE committee was not even trained until October 25, 2005 and could only commence rating jobs after that date. In short, January 1, 2006 seems like a reasonable date from which to calculate retroactivity.

The Legal Impact of our Factual Findings

53. The parties did not agree to use the Combined Method. CUPE takes the position that the Act required them to do so. We do not agree with that assertion.

54. The Health Unit is what is known under the Act as a Part II employer – a public sector employer who was required to post plans for its unionized and non-unionized employees, and in the case of the former group(s) to negotiate the plan for each bargaining unit with the bargaining agent. The result of the Health Unit’s negotiations with the Local was the 1990 Plan.

55. At the time the 1990 Plan was prepared and implemented, the Act stipulated only the job-to-job method of comparison; that is, it required wage adjustments only where male job classes were paid more than similarly valued female job classes. In largely female workplaces (such as the Health Unit), a “shortage” of male job classes often meant that there was no basis under that methodology for determining whether all the female job classes were undervalued and for adjusting their compensation.

56. Despite the fact that the Act did not require them to do so, these parties agreed to use a PV (male wage line) method of comparison as the basis for the wage adjustments set out in the 1990 Plan. They compared all female job classes in the bargaining unit to the male wage line, determined the adjustments owing, and paid them.

57. In 1993, the Act was amended in a number of ways. Among the amendments enacted were those providing for the PV and proxy methods of comparison. As well, provisions were enacted dealing with vendor and purchaser obligations on a sale of business, and providing a mechanism by which employers and bargaining agents could initiate bargaining for an amended plan in the event of a “change of circumstances”. All these provisions apply to Part II employers. In the paragraphs that follow, we ignore the provisions that deal with the proxy methodology as it has no application in this case.

58. The PV provisions address a number of possible scenarios that might have existed at the time they were proclaimed:

• An employer might have used the job-to-job methodology alone and might not have found equally or comparably valued male comparators for all the female job classes included in a plan;

• An employer might not yet have prepared a pay equity plan;

• An employer might have used a form of PV already, either alone or in conjunction with job to job.

59. Employers who had not yet prepared a pay equity plan could use either or both PV and job-to-job as a comparison method for all female job classes covered by the plan, but where a female job class could be compared under either methodology, the adjustment made under PV could not be less than what would be required under job-to-job (see section 21.2(2)). We will refer to the situation just described as a “new plan” situation. Section 21.2(2) reads:

21.2 (2) If an employer uses the proportional value method of comparison to make a comparison for a female job class that can be compared to a male job class using the job-to-job method of comparison, the compensation adjustment made for members of that female job class shall not be less than the adjustment that is indicated under the job-to-job method.

60. Employers who had prepared plans in which not all female job classes had been compared to determine if pay equity existed were required to prepare amended plans, using PV. They were also permitted to amend their existing plans to use only PV, so long as they complied with section 21.2. We will refer to the situation just described as an “amended plan to achieve pay equity” situation. It is governed by section 21.4:

21.4 (1) If a pay equity plan prepared under Part II for an establishment does not achieve pay equity for all the female job classes at the establishment, the employer shall amend the plan to the extent necessary to achieve pay equity in accordance with this Part.

(2) Subject to subsection 21.2 (2), an employer may, with the agreement of the bargaining agent, if any, replace a pay equity plan prepared under Part II with another plan prepared under this Part using the proportional value method of comparison.

61. The Health Unit in 2004 was in neither a “new plan” nor an “amended plan to achieve pay equity” situation. It was in a situation where it had applied PV to the entire bargaining unit, and the adjustments indicated by that comparison methodology had been made. Because every female job class had been compared, pay equity had therefore already been achieved. See sections 5.1(1) and (2) and section 6(1) of the Act:

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.

(2) A pay equity plan that used the proportional value method of comparison shall be deemed to have complied with section 6, as it reads immediately before this section comes into force,

(a) from the date on which the plan is posted if it is posted before Part III.1 comes into force by an employer to whom Part II applies; or

(b) from the date on which the plan is prepared if it is prepared before Part III.1 comes into force by an employer to whom Part III applies.

62. The Health Unit’s situation in 2004 is contemplated in section 21.2(3) of the Act:

21.2 (3) Subsection (2) does not apply to an employer to whom Part II applies if the employer prepared a pay equity plan using the proportional value method of comparison and posted it before the coming into force of this Part. However, subsection (2) does apply if the employer has also posted a pay equity plan using the job-to-job method of comparison.

63. The Health Unit was therefore under no statutory obligation, after achieving pay equity under the Act, to use the job-to-job methodology thereafter for any of the female job classes in the bargaining unit represented by the Local.

64. The Local attempted to characterize this case as one about “changed circumstances”. This is an after-the-fact characterization. The Local did not give the Health Unit notice to bargain changed circumstances as contemplated in section 14.1 of the Act. The parties simply got together to conduct their quinquennial maintenance review. Even if that activity were treated as constituting a situation that engaged section 14.1 of the Act, however, the Local’s application is not advanced. In the first place, a combined reading of section 14.1 (bargaining in the case of changed circumstances) and section 16(4) of the Act suggests that we have no jurisdiction to deal with the application because it was made more than 30 days after the Order issued. Leaving that aside, while the Act contemplates that the section 14.1 process will lead to an “amended” plan, that does not alter the fact that pay equity was achieved under the original plan. Because the plan is not being amended “to achieve pay equity”, section 21.4, which might otherwise require the use of job-to-job, is not engaged.

65. In summary, the parties did not agree to use a combination of job-to-job and PV. In the absence of such agreement, nothing in the Act compels the use of job-to-job in the circumstances of this bargaining unit. The parties did agree to a retroactive date of January 1, 2006, and that date is in any event a reasonable interpretation of what their Manual of Procedures required. The Health Unit has paid out adjustments owing based on the PV methodology retroactive to January 1, 2006 in accordance with the Order. There are no more amounts owing. There is no basis for an award of interest. For all these reasons, the application is dismissed.

Dated at Toronto this 20th day of October, 2010.

"Mary Anne McKellar"

Mary Anne McKellar, Vice-Chair

"Margaret Kvetan"

Margaret Kvetan, Member

"Catherine Bickley"

Catherine Bickley, Member