Oakwood Retirement Communities Inc. v. S.E.I.U. Local 1 Canada, 2010 CanLII 76245

PAY EQUITY HEARINGS TRIBUNAL

1120-09-PE Oakwood Retirement Communities Inc., Applicant v. S.E.I.U. Local 1 Canada, Respondent.

BEFORE: Patrick Kelly, Vice-Chair.

APPEARANCES: Michael Allen, Robert Bass and Matt Drown for the applicant; Mary Cornish, Jacqueline D’Santos and Daina Green for the respondent.

DECISION OF THE TRIBUNAL: December 15, 2010

1. This is an employer application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) for review of the Order of a Review Officer issued on April 3, 2009.

Background

2. This matter was heard by a panel of three, which I chaired. Following the completion of the hearing, one of members of the panel became incapacitated, and was unable to participate in this decision. The parties agreed that I should decide the application alone.

3. This case is largely about the extent to which a displacing trade union, the responding party (“SEIU” or “the union”), is entitled to challenge pay equity processes undertaken by the applicant (or “the employer”) and an agreement reached between the employer and the predecessor trade union concerning pay equity prior to the certification of the displacing trade union.

4. This proceeding is also, to a lesser extent, about the issue of pay equity maintenance, and the displacing trade union’s entitlement to disclosure about the employer’s pay equity history, which SEIU says is the only measure upon which it can inform itself whether or not pay equity has been maintained in the workplace.

5. In her Order, the Review Officer determined that there had been a number of contraventions of the Act in the pay equity agreement between the employer and the predecessor trade union. She ordered the employer and the SEIU to negotiate amendments to that agreement on the basis of her findings concerning the gender dominance of several job classes which, in her view, had been incorrectly assessed by the employer and the predecessor union. Among other things, the Officer ordered the employer and the SEIU to negotiate a gender neutral comparison system, collect job data, and compare female and male job classes.

6. The employer contends it has complied with the Act, and that the Order of the Review Officer should be set aside. SEIU essentially says that the employer’s pay equity processes were entirely deficient and non-compliant with the Act, and that, as a result, pay equity in this workplace must be implemented anew. The union requests that the Review Officer’s Order be upheld.

The Evidence

7. The employer called the following witnesses: James Schlegel, its Vice President and member of the applicant’s board of directors; Jim Williams, the applicant’s former Human Resources Consultant, who now is employed elsewhere; Dan McPherson and Bob Bass, both of the consulting firm Bass & Associates, which provided the employer with pay equity advice and consultation.

8. The applicant (or “the employer”) is in the business of developing, designing and operating several nursing homes and retirement homes in Guelph, Hamilton and the Greater Toronto Area. Nursing homes are subject to a plethora of regulations under the Nursing Homes Act and policies of the Ministry of Health and Long Term Care (“the MOHLTC”). The residents of nursing homes are responsible for only about one third of the costs of their care and accommodation, and the remaining costs are subsidized by MOHLTC funding. In contrast, the residents of retirement homes bear the costs of accommodation and meals, and - at the point in time when the SEIU made its complaint to the Pay Equity Commission - the activities of the retirement homes were not specifically regulated by statute.¹

9. In November 1998, the applicant opened its first facility in Guelph, Riverside Glen Retirement Home, which was and remains non-union. In addition to his Vice President duties, Mr. Schlegel was the General Manager at the time, and as such he oversaw the market analysis, acquisition of the real estate, design of the home, pricing and hiring and all other aspects concerning the home’s creation and start-up. In addition, Mr. Schlegel was responsible to determine a wage structure for the employees to be hired. He undertook some research of the local market, and determined what he considered to be competitive rates of pay for the positions he wished to populate the new home.

10. Mr. Schlegel was aware that the employer had pay equity obligations, and he contacted Bob Bass & Associates, a consulting firm with experience in pay equity and other compensation-related matters, for the purpose of testing his proposed wage structure. It was determined that Mr. Schlegel ought to carry out a pay equity analysis on the jobs for which he anticipated hiring to run the new home, before the home opened in November. Mr. Bass provided advice on the process Mr. Schlegel should use. So, in the spring of 1998, he developed written job descriptions for the jobs to be utilized in the home. He determined which of the jobs constituted male job classes and which were female job classes. He then applied a job evaluation plan provided to him by Mr. Bass for use in the nursing home industry.² He rated the new home’s jobs partly based upon the job descriptions and partly based upon his four years’ experience as the Administrator of Winston Park, a combined retirement home and nursing home facility in Kitchener.³ As well, he drew upon his previous experience as a summer student employee in nursing homes before he became Winston Park’s Administrator. In addition to the new home jobs, Mr. Schlegel evaluated several non-union jobs for which there were male incumbents in the applicant’s head office in Kitchener, where Mr. Schlegel worked. Apparently there were no job descriptions developed for these head office jobs, and Mr. Schlegel rated them with the CUPE plan based entirely upon his knowledge of those positions, which he testified was considerable because he worked closely with the incumbents. Mr. Schlegel then handed over his work to Mr. Bass for further analysis involving a comparison of the points awarded to the male and female job classes. Although Mr. Schlegel testified that he kept a file of documents for the purpose of completing his portion of the pay equity analysis, he was unable to locate any of them in preparation for the hearing in this matter.

11. As a result of the analyses done by Mr. Schlegel and Mr. Bass respectively, it was determined that no adjustments were required to the wage structure developed by Mr. Schlegel. In other words, the employer concluded that the Act did not require any compensation changes to any of the female job classes.

12. In the spring of 2001, Mr. Schlegel anticipated the opening by the applicant of a new nursing home in Hamilton later in the year. He did two things, the order of which was not entirely clear from the evidence. One, he had discussions with the Canadian Health Care Workers (“the CHCW”) about voluntarily recognizing the CHCW as the bargaining agent in the new Hamilton nursing home and possibly other new facilities down the line. Two, he established a wage structure and did a pay equity analysis in respect of the Hamilton jobs in much the same way he approached the task in anticipation of the Guelph retirement home in 1998, using the CUPE plan and relying upon available job descriptions as well as his own prior knowledge of jobs in the nursing home and retirement home sectors. Mr. Schlegel developed a spread sheet of female and male jobs, including male non-union jobs in the applicant’s head office and two male jobs from the non-union Guelph retirement home, namely Maintenance and Chef, both of which had male incumbents at the time. Mr. Schlegel scored each job in both the Guelph retirement home and the Hamilton nursing home, as well as the non-union head office positions, using the CUPE plan, based upon the job descriptions for some of the positions that existed at the time as well as his own understanding of similar jobs in the nursing home portion of the Winston Park operation in which he had been employed previously or in the Guelph retirement home.⁴ He also determined the gender of each job based upon various factors, including the gender dominance of similar positions in the industry and at Winston Park, and where applicable, at the Guelph retirement home. He determined that the Maintenance and Chef positions at the Guelph retirement home and the Maintenance, Maintenance Helper⁵ and Chef in the Hamilton nursing home were male job classes. Mr. Schlegel then submitted the spread sheet, a copy of which was produced in evidence in the hearing, to Mr. Bass for further wage comparisons between the female and male jobs, based upon the wage structure that Mr. Schlegel hoped to implement in the Hamilton nursing home.

13. Mr. Schlegel was able to produce some of the job descriptions he says he consulted in the 2001 analysis. However, since he did not keep notes of his work, he was not always able to explain satisfactorily how he came up with his ratings. For example, when he assessed the Registered Practical Nurse’s resident charting duties, he was not sure if he gave any consideration to the responsibility factor under the CUPE plan. He presumed that he gave credit for charting under the judgment and mental effort factors, and probably primarily under mental effort. He could not recall what factors from the CUPE plan came into play with respect to the responsibilities of Registered Practical Nurses to track the use of narcotics. He was quite sure he measured jobs for stress, but not how it figured in the scoring. I formed the impression throughout his cross-examination that he did not have an independent recollection of how he scored each job on each of the factors in the CUPE plan. Without notes, of course, it would be an exceedingly difficult, if not impossible task, to recall those details.

14. Mr. Bass’s firm conducted further wage analyses, including job-to-job and proportional value analyses. In carrying out the work, Mr. Bass determined that, despite Mr. Schlegel’s decision to treat the Maintenance, Maintenance Helper and Chef jobs in the Hamilton facility as male job classes, they ought to be female job classes. No similar change was made in respect of Mr. Schlegel’s determination that the Maintenance and Chef jobs at the Guelph retirement home were male job classes. Mr. Bass’s reasoning was as follows. In the mid-1990’s he led the pay equity negotiating process on behalf of a large group of nursing home employers with their bargaining agent, Local 220 of the Service Employees International Union (“Local 220”), which culminated in a Master Plan binding all the participating employers. According to Mr. Bass, the parties first completed a job-to-job comparison (in which nursing home maintenance jobs were treated as male job classes) that resulted in an agreement that there was no wage discrimination between male and female job classes. Next, the parties considered proportional value, but no resolution was reached concerning a proportional value pay equity plan. When the proxy method of job comparison was legislated, the parties met again, and reached agreement to look for job comparators in the municipal home for the aged sector. This then led to agreement on a “generic” proxy pay equity plan which identified Health Care Aide/Personal Service Worker as the key benchmark classification, and determined that every classification under every participating nursing home’s collective agreement was a female dominated job class, and as such would receive a total of $1.50 per hour in pay equity adjustments⁶, subject to available funding. Subsequently, the pay equity proxy plan was challenged and made the subject of a proceeding before the Tribunal, which determined that the pay equity plan’s contingency on funding was invalid, but that that provision did not invalidate the remainder of the pay equity plan: see Kensington Village, [2000] O.P.E.D. No. 6. The $1.50 plan became the predominant pay equity plan in the nursing home industry across Ontario. Some nursing homes whose employees were represented by Canadian Union of Public Employees and by Christian Labour Association of Canada reached essentially the same pay equity plans with those trade unions.

15. The ultimate result of the review undertaken by Bass and Associates with respect to the applicant’s 2001 pay equity review was this. In terms of job-to-job comparisons:

• The higher paid Hamilton Registered Practical Nurse (“RPN”) female job class compared in value to the lower paid male job class of Head Office Accountant⁷;
• The higher paid Hamilton Chef female job class compared in value to the lower paid Chef male job class in Guelph;
• The higher paid Hamilton Maintenance female job class compared in value to the lower paid Guelph Maintenance male job class;
• The higher paid Hamilton Personal Service Worker (“PSW”) compared in value to the lower paid Guelph Maintenance male job class.

16. A proportional value analysis was conducted for the remaining four female job classes (Student, Maintenance Helper, Cook II and Aide, the Aide position being representative of Housekeeping Aide, Dietary Aide, Laundry Aide and Recreation Aide positions) that had no male comparators in the Hamilton nursing home or elsewhere. All of these female job classes were determined to fall above the male jobs’ line of regression for purposes of the proportional value analysis. Neither the job-to-job analysis nor the proportional value analysis took into account the value of benefits being paid to male or female job classes.

17. Mr. Bass concluded that Mr. Schlegel’s proposed wage structure complied with the Act. Accordingly, no adjustments to any of the female job classes were required.

18. Mr. Schlegel’s earlier discussions with the CHCW about a voluntary recognition agreement (“the VRA”) led to a meeting at Bass and Associates on July 17, 2001, about a week or two after Mr. Bass and Mr. Schlegel finalized the pay equity analysis and determined that the applicant would be pay equity compliant once it opened the Hamilton nursing home later that year. Mr. Bass and Mr. Schlegel attended the meeting on behalf of the applicant; Joe Daigneau, CHCW’s President, attended and brought with him Andrew Ferrence, an executive from the Service Employees International Union. Mr. Schlegel was familiar with Mr. Daigneau, because the CHCW had been the bargaining agent at Winston Park. Together the four individuals purported to negotiate the terms of the VRA that day, to cover the Hamilton nursing home, and five others facilities to be opened in various municipalities at a future date. The basis for much of the discussion was the terms and conditions contained in the Winston Park collective agreement.

19. The issue of wages was left to the latter part of the talks. Mr. Daigneau and Mr. Ferrence wanted to know if the wages proposed by the applicant⁸ were pay equity compliant. Mr. Bass and Mr. Schlegel assured them that they had done the necessary analysis, and that the wages were in compliance with the Act. Mr. Schlegel testified that, at this point, Mr. Bass indicated that all the job classes were female, despite Mr. Schlegel’s earlier determination that the Maintenance and Chef positions were male job classes. Mr. Schlegel testified that he learned from Mr. Bass that this was the norm in the nursing home industry. Apparently, Mr. Ferrence agreed with that view. Mr. Schlegel testified that he simply deferred to their expertise. The parties completed their negotiations and made what they thought were binding collective agreements (one for full-time employees and one for part-time employees in five nursing homes in five different municipal locations), including a document appended to each of the collective agreements entitled, “Pay Equity Agreement”, which reads:

PAY EQUITY AGREEMENT

BETWEEN

The Employer

And

The Union

This Pay Equity Agreement applies to all the employees represented by the Union employed by the Employer. The parties agree that the wage rates in Schedule A reflect the fact that Pay Equity has been achieved.

The parties agree that the classifications in the collective agreement constitute female job classes and the current differentials between job classifications in the bargaining unit shall be maintained, except as it may be modified in collective bargaining.

Any new classification that may be created in the bargaining unit shall be deemed to achieve pay equity through the application of the “new classification” clauses of the Collective Agreements.

The parties agree that there was no requirement for a pay equity adjustment at times other than those as identified in the Collective Agreement.

The parties agree that this agreement satisfies any and all requirements of the Pay Equity Act.

DATED July 17, 2001

ON BEHALF OF THE EMPLOYER ON BEHALF OF THE UNION

“Illegible Signature” “Illegible Signature”

20. Mr. Bass explained in his testimony that the pay equity agreement was important from the employer’s perspective, because it guaranteed certainty about wages, and certainty about wages is critical in light of the structure of nursing home government funding. The funding is closely tied to anticipate labour costs, and is fixed. The labour cost estimates to operate a nursing home facility, therefore, must be accurate, because there is no opportunity later in the fiscal year for shortfall funding. Furthermore, the money must be fully utilized in the course of the fiscal year, otherwise it is returned to the government funder.

21. The Hamilton nursing home opened in November 2001. The CHCW purported to represent the employees there on opening, pursuant to the collective agreement. That representation, however, was short-lived. The Canadian Auto Workers (“the CAW”) made an application to the Ontario Labour Relations Board (“the OLRB”) to represent the employees in the Hamilton facility, and in the process of so doing, attacked the validity of the VRA. The CAW succeeded. By decision dated March 26, 2003, the OLRB determined that the VRA and the ensuing collective agreement were invalid, and that CHCW had no bargaining rights. The OLRB certified the CAW on April 28, 2003 as the bargaining agent for the Hamilton facility.

22. The CHCW did not give up its objective to represent employees of the applicant. On April 22, 2003, it was certified by the OLRB in respect of three facilities owned by the employer in Burlington, Brampton and Mississauga, all of which were operational and staffed. Within about a month of the certification, the applicant and the CHCW negotiated a single collective agreement with a bargaining unit of full time and part-time employees in both nursing and retirement homes located in six different municipalities, including the three operating facilities (but excluding the original non-union retirement home in Guelph), and three others that were not yet operating. That collective agreement contained a pay equity agreement which mirrored the substance of the same pay equity agreement the applicant and the CHCW had entered into through collective bargaining in 2001. There was very little evidence about the 2003 round of bargaining. A comparison of the invalid 2001 collective agreement with the 2003 counterpart reveals that the parties made some changes, including an expanded bargaining unit scope clause and a new wage schedule providing for hourly rate increases over a three-year period. Apart from these relatively few changes, much of the substance of the invalid 2001 collective agreement was repeated in the 2003 collective agreement, including substantially the same pay equity agreement.

23. In 2005, the employer and the CHCW met twice, apparently at the initiative of a CHCW concerned about the possibility of a raid by the SEIU, to discuss newly acquired government funding, referred to as equalization funding, obtained by the applicant and other employers. Notes of the meeting on August 16, 2005, prepared by one of the union representatives in attendance, were introduced into evidence in the course of the hearing, as was a letter dated September 1, 2005 by the CHCW’s President to the members. These documents indicate that the CHCW took the view that the collective agreement’s letter of intent on pay equity had been entered into with the applicant (and with other operators of new seniors’ homes) because there was no pay equity funding available to the “new bed” homes opening after 2000. With the introduction of equalization funding, the CHCW adopted the strategy that it would insist, separate and apart from the collective bargaining process, that the funding be applied in its entirety in the form of pay equity wage adjustments. The applicant appears to have acknowledged in talks with the CHCW that the equalization funding could be used, at least in part, to close the gap in wages between its employees and those of Winston Park. In any event, nothing was finally resolved concerning the funding issue between the applicant and the CHCW before the SEIU displaced the CHCW and became the bargaining agent on March 1, 2006. Mr. Schlegel testified that the employer has been unable to reach agreement with the SEIU concerning the distribution of the equalization funding. It reached an agreement, however, with the CAW at the Hamilton nursing home.

24. In May and June 2006, the SEIU requested of the employer’s Human Resources Consultant, Mr. Williams, various pay equity materials, including a copy of any pay equity plan, the names of committee members who participated in pay equity negotiations, the dates and minutes of all pay equity meetings, details of all pay equity adjustments both past and future, and the date on which pay equity would be achieved in the workplace. Mr. Williams, who first became employed by the applicant near the end of 2004 and had no detailed knowledge as to what had transpired regarding pay equity, referred to Human Resources files and made inquiries of Mr. Schlegel’s executive assistant. As a result, he concluded that none of the materials sought by the SEIU ever existed.⁹ He advised the SEIU accordingly, and referred to the letter of intent on pay equity in the CHCW collective agreement. He further advised the SEIU that pay equity had been achieved on the effective date of the collective agreement. Finally, Mr. Williams stated that any concerns about pay equity, particularly any concerns that might arise with respect to the equalization funding, could be addressed in the next round of collective bargaining. The SEIU applied for review services with the Pay Equity Commission on or about September 19, 2006, complaining that the employer was not complying with its legal obligation to negotiate a pay equity plan with the SEIU.

25. On or about December 13, 2007 the employer and the SEIU executed a collective agreement. The collective agreement did not include a pay equity agreement similar to that included in the CHCW collective agreement. It would appear that the parties discussed the issue of equalization funding in the course of collective bargaining, but without a resolution.

26. Mr. Schlegel testified that there have been no changes in the substance of any of the jobs he analyzed in 2001, despite the introduction in the workplace of new equipment, technologies, products, resident care forms, training programs, government guidelines, and, as a result of a Ministry of Labour audit, amendments to the applicant’s job descriptions to reflect in more detail incumbents’ health and safety responsibilities. In 2009, in response to the intervention of the Review Officer into SEIU’s complaint lodged with the Pay Equity Commission, Mr. Schlegel testified that he conducted an analysis of all the relevant jobs as an exercise in pay equity maintenance using the CUPE plan, and found no changes that would warrant any change in the scoring of the job classes.¹⁰ He referred to job descriptions, MOH guidelines and his own knowledge of the jobs in conducting the analysis. He took no notes in the course of his maintenance analysis. He did not involve the employees, for example by having them complete questionnaires as contemplated by the CUPE plan. As he and Mr. Bass were of the view that SEIU could not challenge Mr. Schlegel’s 2001 evaluations and job class designations and their implied adoption via the CHCW pay equity agreement, the employer did not share its findings with the SEIU, or permit the SEIU any input. According to Mr. Bass, the applicant did provide the SEIU with the point scores for the job classes, but it refused to provide the SEIU with a copy of the CUPE plan until October, 2009, some six months after the union filed the application. Mr. Schlegel acknowledged in the course of his cross-examination that the union would have a difficult time ensuring that pay equity had been maintained in the workplace without at least knowing what gender neutral comparison system the applicant had used to arrive at its analysis in 2001.

27. Mr. Schlegel shared his pay equity maintenance analysis and the existing wage structure with Bass & Associates. Bass & Associates concluded, having regard to the analysis and existing wages, and having conducted its own proportional value analysis, that there were no pay equity maintenance issues requiring the employer’s attention.

The Positions of the Parties

28. The parties agreed that the applicant is a Part I employer. That characterization is somewhat of an oversimplification, for as the Tribunal explained in Group of Employees v. Ontario Public Service Employees Union, [1993] O.P.E.D. No. 47 at paragraph 16:

…this Part [Part I] contains provisions which apply to all employers and employees in Ontario. The general provisions of the statute are modified by the parts of the Act which follow. These more specific provisions describe how compensation practices are to be changed to meet the requirements of the Act. The Act provides different methods and timetables for the achievement of pay equity which vary depending on the size of the employer and whether the employer is in the private or public sector, unionized or not.

29. The applicant is subject to Part I. It is not a public sector or large private sector employer subject to Part II (Implementation: Public Sector and Large Private Sector Employers) of the Act, nor an employer subject to Part III.1 (Proportional Value Method of Comparison) or Part III.2 (Proxy Method of Comparison). Part IV (Enforcement), Part V (Administration) and Part VI (Regulations and Miscellaneous) contain provisions of general application, and in that sense they apply to all employers, including the applicant, except private sector employers with fewer than ten employees. Until its repeal on January 1, 1994, Part III (Implementation: Small Private Sector Employers) applied to employers, who as of January 1, 1988 employed more than nine but fewer than 100 employees.

30. Employers subject to Part II, Part III.1 and/or Part III.2 must prepare and post a pay equity plan. The posting of pay equity plans under those Parts triggers the employee review and/or objection processes concerning the content of the pay equity plan. The failure to object results in the deemed approval of the pay equity plan by the Pay Equity Commission (“the Commission”). As a Part I employer that is not subject to Parts II, III or III.2, the applicant was not required to, and did not, make or post a pay equity plan. Consequently, there was nothing upon which the employees of the applicant employed in the non-union Guelph retirement home as of or after November 1998 could base a notice of objection pursuant to subsection 15(7) of the Act. Nor was there any pay equity plan that the Commission could deem approved under subsection 16(5).

31. The applicant argued, that an employer governed by Part I, but not Parts II, III.1 or III.2, is required to comply with its statutory obligations the moment it begins to operate employing ten or more employees.¹¹ On such a reading of the Act, the employer was obligated in November 1998, when it opened its first facility in Guelph, to have redressed any systemic gender discrimination in compensation for work performed by employees in female job classes by undertaking comparisons between female jobs classes and male job classes in its establishment in terms of compensation and in terms of the value of the work performed.¹² The applicant’s determination of the gender dominance of the job classes would have had to take into account the historical incumbency of the job class, gender stereotypes of fields of work and such other criteria as may be prescribed by the regulations enacted pursuant to the Act. ¹³ In assessing the value of work performed, the applicant would have been obliged to apply the criterion of skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed. To the extent the work performed between a female job class and a male job class in the establishment was found to be of equal or of comparable value, the applicant would have been required to ensure that the job rate of the female job class was at least equal to the job rate of the male job class comparator.¹⁴ On the applicant’s theory concerning the application of Part I, all of these tasks – the determination of gender dominance of job classes, the assessment of each job class’s value, the comparison of female job classes with male job classes, the comparison of compensation between female and male jobs of comparable value, and the adjustments, if any, in compensation to achieve pay equity – were mandated by the Act to have been completed when the employer opened its doors in Guelph in November 1998. Moreover, the same steps were required to be undertaken by the employer each and every time it subsequently opened a new facility.

32. The applicant submits, however, that it was not required as a Part I employer to make a pay equity plan, and that the pay equity agreement between it and the CHCW was not a pay equity plan within the meaning of the Act. It follows, therefore, that even if the pay equity agreement with the CHCW was not enforceable under the Act, this does not lead to a conclusion that the applicant must now make a pay equity plan with the SEIU. In fact, in the applicant’s submission, there is no consequence that flows from a finding that the pay equity agreement with the CHCW is unenforceable, because Mr. Schlegel undertook a proper pay equity analysis, finding two male comparators of equal value within the applicant’s establishment (i.e. which at the time comprised the applicant’s head office, the retirement home in Guelph and the new nursing home in Hamilton) and using the lower paid of these as the male comparator for all other female job classes, resulting in no pay equity adjustments. Mr. Bass’s subsequent determination that the two male comparators were in fact female job classes had no bearing on the propriety of Mr. Schlegel’s analysis.

33. Counsel for the applicant contends that the employer, through Mr. Schlegel, complied with the Act and achieved pay equity, with the exception of the 9-cent-an-hour adjustment that remains owing to Registered Practical Nurses. Furthermore, in assessing the degree of the employer’s compliance with subsections 5(1) and 6(1) of the Act, the applicant contends that a standard of reasonableness should apply, and that on the basis of that standard, Mr. Schlegel’s collection and assessment of job data and evaluation of the statutory criteria concerning the value of work performed was reasonable in the circumstances. Moreover, his analysis was completed before there was any union with which the applicant was bound to bargain, and the applicant submits that the SEIU cannot undo what was lawfully achieved before and after the CHCW became the bargaining agent.

34. Counsel further contends that, since the applicant was bound to comply with the Act when it opened the Hamilton facility (just as it was bound to comply when it opened the Guelph retirement home), it was appropriate and necessary to take all the statutory steps to achieve pay equity before any of the job classes were populated at the Hamilton facility. In this regard, for purposes of achieving pay equity in the Hamilton nursing home, the applicant took the approach that its establishment consisted of its head office and both the Guelph and Hamilton facilities, and that, since there was no trade union and no established bargaining unit, it was appropriate to make comparisons between job classes in the entire establishment.

35. On April 22, 2003, the CHCW legitimately became the bargaining agent for an “all-employee” bargaining unit covering three facilities owned by the employer in Burlington, Brampton and Mississauga, and subsequently reached a valid collective agreement incorporating the previously negotiated pay equity agreement. Counsel for the applicant takes the position that the pay equity agreement’s designation that all of the bargaining unit job classes were female job classes was an arrangement the employer and the CHCW were entitled to reach, having regard to subsection 1(5) of the Act, which reads:

1(5) In deciding or agreeing whether a job class is a female job class or a male job class, regard shall be had to the historical incumbency of the job class, gender stereotypes or fields of work and such other criteria as may be prescribed by the regulation.

36. In counsel’s submission, while the parties are obligated to take into account historical incumbency and gender stereotypes in fields of work when agreeing on the gender dominance of a job class, nothing in subsection 1(5) limits the parties from taking into account other factors as well. In that regard, the evidence was that the employer and the CHCW took into account the industry practice, as manifested by the Master Plan reached between Local 220 and a group of participating nursing home employers, of treating all job classes as female job classes and applying a $1.50 hourly adjustment to the wages of all job classes within the respective bargaining units.

37. Counsel for the applicant went on, then, to submit that the applicant’s duty to negotiate pay equity with the CHCW’s successor, the SEIU, is limited. Counsel contends that the SEIU can do nothing about any imperfections or defects in the applicant’s endeavour to achieve pay equity prior to the SEIU’s achievement of bargaining rights in 2006. For this proposition, the applicant relies upon two labour arbitration decisions: Central Park Lodges (c.o.b. Versa-Care Windsor Place) v. Service Employees International Union, Local 210, [2001] O.L.A.A. No. 473; 2001 CanLII 62162 (ON LA), 98 L.A.C. (4th) 164; and Coca-Cola Bottling Co. v. United Food and Commercial Workers Union, Local 175, [2004] O.L.A.A. No. 184; 2004 CanLII 94747 (ON LA), 127 L.A.C. (4th) 218. These cases dealt with the question of grievance carriage rights by trade unions in circumstances where one union displaced another. The arbitrator in the Central Park Lodges decision concluded that, by virtue of section 62 of the Labour Relations Act, 1995, a displacing trade union is not as of right entitled to pursue a grievance initiated by the displaced trade union, because the displacing trade union was not privy to the collective agreement between the employer and the displaced trade union. The Coca-Cola Bottling decision stands for the proposition that a displaced trade union which initiated a grievance pursuant to a collective agreement before the displacing trade union obtained bargaining rights, continues to have carriage rights in respect of that grievance, on the theory that the carriage rights vest in the displaced union once the grievance is filed and are not affected by the displacement of bargaining rights.

38. Counsel for the applicant argued that the applicant’s obligation to the SEIU is limited to negotiations about the maintenance of pay equity as described in section 7 of the Act, since the union’s certification in 2006. Subsection 7(2), which prohibits an employer and bargaining agent from bargaining for or agreeing to compensation practices that, if adopted, would contravene the Act, is, in the employer’s submission, a forward-looking provision. It does not apply to the union in this case because the union was not a party to the pay equity agreement reached between the applicant and the CHCW, and the employer is not proposing to the SEIU any new or changed compensation practices. Therefore the union cannot be held responsible for compensation practices for which it did not, but for which the CHCW did, bargain. It follows that the SEIU had no basis to insist that the employer negotiate already established compensation practices. At best, the SEIU might be entitled to damages from the date of its certification to the extent it can demonstrate that the employer previously breached the Act. The applicant relies upon the Tribunal’s decisions in Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, [1996] O.P.E.D. No 5 and Munro v. Ottawa Heart Institute, [2004 O.P.E.D. No. 6 for this portion of its argument.

39. Counsel for the applicant argued further that the SEIU is bound by the agreement on pay equity reached between the CHCW and the applicant because it was a valid agreement.

40. Regarding the employer’s pay equity disclosure obligations to the SEIU, counsel for the applicant submitted that the union was only entitled to disclosure relative to the question of pay equity maintenance from the date of the union’s certification. Counsel argued that the CUPE plan did not relate to the issue of pay equity maintenance, but if it did, it was ultimately produced in the course of this proceeding, and the issue of disclosure is now moot.

41. Turning now to the issue of remedy, the applicant asks that the Tribunal:

• set aside the Officer’s Order;
• find that the applicant’s rates of pay complied with the Act as the employer opened and expanded its operations, and remain compliant with the Act except insofar as the Registered Practical Nurses are still entitled to a 9-cent adjustment in their hourly wage;
• find that the pay equity agreement between the applicant and the CHCW that all the job classes in the bargaining unit were female job classes was reasonable and compliant with the Act, and remains enforceable;
• in the alternative, if I determine that the agreement between the CHCW regarding the assessment of the gender dominance of the female job classes was deficient, find that the parties’ agreement that all job classes in the bargaining unit were female is unenforceable, but that the employer’s rates of pay on the opening of its operations were compliant with the Act and remain so, with the exception of the Registered Practical Nurses.

42. I now turn now to the argument of the SEIU. Counsel for the union accepted that there is no phase-in period in the Act for achievement of pay equity applicable to employers such as the applicant, who are not governed by Parts II, III and III.1 of the Act. Counsel acknowledged that such employers must meet their pay equity obligations from the commencement of operations. That is to say, such employers must proactively redress any compensation practices that discriminate against female employees. That being said, counsel for the union submitted that a Part I employer must, as a matter of ensuring gender neutrality in the comparison of job classes, involve the employees in the process of achieving pay equity, if not prior to the opening of the employer’s establishment, then at some point afterward.

43. Counsel for the union further contended that Mr. Schlegel got things wrong when he first assigned rates of pay to the jobs he intended to utilize in the Hamilton facility, based upon comparisons in the industry at large, and only then conducted a pay equity analysis to satisfy himself that the rates of pay were not discriminatory. From the SEIU’s perspective, Mr. Schlegel’s method was entirely market and cost driven. Hence, for example, the employer’s change of mind resulting in the ultimate conclusion that all the Hamilton nursing home job classes were female job classes, based upon a similar approach adopted by other nursing home employers and bargaining agents under a different pay equity regime (proxy method). The union also criticizes his use of the CUPE plan without any modifications to take into account the unique circumstances of the workplace and without any utilization of employee-completed job questionnaires contemplated by the CUPE plan, which tend to capture more accurately and comprehensively the full range of a job class’s characteristics. As the Tribunal remarked in Haldimand-Norfolk (no. 6) (1991), 2 P.E.R. 105 at paragraph 24, “…section 5 of the Act [which prescribes the criteria to be applied in determining the value of work] requires a standard of correctness, that is, the skills, effort responsibility and working conditions must be accurately and completely recorded.” In Peterborough (Firefighters) (No. 2) (1997), 8 P.E.R. 98 the Tribunal expressed disapproval of the joint job evaluation committee’s reliance upon its members’ knowledge of the jobs as the sole basis for rating the job classes. Indeed, it was noted in the recitation of the evidence in that matter that the committee members could not recall all the information that they relied upon in coming to their conclusions. The Tribunal described this kind of information gathering as “inadequate”. The union says the employer in this matter has engaged in a similarly inadequate process of collecting job content, and has engaged in an exercise in manipulation to make it appear that it has complied with, but has actually thwarted, the Act.

44. The SEIU does not accept any suggestion that the employer is not required to plan for pay equity. The union contends that Part I employers must plan the achievement of pay equity and plan for maintenance of pay equity once achieved. Such planning, the union says, includes consultation with employees, once they have occupied their positions, and some degree of supervisory review of the employees’ input. Employee participation is also critical to proper maintenance of pay equity in the workplace. The problem in this case, says the union, is that, in the absence of any substantial job content records, the Tribunal and the union are in the position of having to assess whether the employer achieved pay equity based upon accurate and complete job content data having regard almost entirely to Mr. Schlegel’s observations, impressions, notions and any other cognitive processes by which he reached his scoring of the job classes. That, says the SEIU, is no way to demonstrate pay equity compliance, and it certainly makes it difficult, if not impossible, to measure the extent to which job content has changed (and pay equity has been maintained or not) since Mr. Schlegel’s analyses, because the basis for the original assessments is recorded, not on paper or a computer hard drive, but somewhere in the depths of Mr. Schlegel’s consciousness. Accordingly, the union submits that the pay equity analyses conducted by Mr. Schlegel stand for nothing as far as the Act is concerned, and the Tribunal should have no regard to that information. Accordingly, says the SEIU, the employer has failed to prove that it established compensation practices that provide for pay equity in its establishment. Moreover, it says that the employer’s belated exercise in attempting to establish that it was maintaining pay equity, undertaken after the assignment of the Review Officer following the union’s request for review services, did not involve either the union or the employees, and therefore also fails to demonstrate that the employer maintained compensation practices that provide for pay equity.

45. The SEIU rejects out of hand the employer’s interpretation of the scope of subsection 1(5) of the Act, which sets out the factors to be taken into account when trade unions and employers agree on the gender dominance of job classes. The union says that any other factors, like the Master Plan reached between participating nursing homes and Local 220 in the mid-nineties under the proxy method, is completely irrelevant to the question of job class gender dominance for the purposes of subsection 1(5). Moreover, counsel for the union suggested that the case upon which the employer placed some reliance for its interpretation of subsection 1(5), Hatts Off Specialized Services Inc. (no. 4) 0731-01-PE and 0757-03-PE (P.E.H.T.) does not assist the employer. It did not decide that there are other factors, beside those enumerated in subsection 1(5), upon which parties may rely to justify their agreement on the gender dominance of a job class.

46. With respect to the pay equity agreement reached between the CHCW and the employer, the union admits that it is not liable for anything that flows from that agreement, and it concedes that subsection 7(2) of the Act does not implicate the SEIU because it did not acquiesce in the adoption of the employer’s impugned compensation practices. Nevertheless, the union submits that even if it is not obligated to do so, it is entitled to attempt to use its authority as the exclusive bargaining agent to correct what it considers non-compliant compensation practices that preceded its certification. And, in the context of pay equity maintenance, it certainly cannot agree to compensation practices that would fail to maintain pay equity as required by the Act. To put it another way, the union says the evidence discloses clearly that the process by which the employer attempted to achieve pay equity was wrong and in breach of the Act¹⁵, and therefore any unilateral attempt by the employer to build on that deeply flawed foundation through the guise of maintaining pay equity compliant compensation practices must be opposed by the union. The SEIU complains that, without satisfactory evidence that the employer actually achieved pay equity, the union’s ability to assess whether changes in job content since 2001 (or at least since the union was certified in 2006) justify changes in compensation practices in order to maintain pay equity is compromised if not made impossible. The union submits that the only practical thing to do is start the pay equity process over again.

47. One of the cases relied upon by the SEIU is Ontario Northland Transportation Commission, [1992] O.P.E.D. No. 35. It involved, among other things, the issue of the extent of the Tribunal’s jurisdiction to inquire into a deemed approved pay equity plan under Part II of the Act in the face of an allegation that the pay equity plan contravened the statute. The Tribunal found it did have that jurisdiction. In the course of its reasons, the majority of the Tribunal stated:

The obligation to establish and maintain pay equity is a positive obligation imposed upon the employer by Section 7(1) of the Pay Equity Act. Therefore, as in other statutory regimes, the Employer cannot rely upon a private agreement with the Union to relieve it of its positive statutory obligation.

48. Similarly, the SEIU maintains that the applicant cannot hide behind the pay equity agreement it reached with the CHCW, because it is merely a rubber stamp of a flawed process engaged in by the employer. To allow the employer to shield itself in this way would to be to relieve it of its statutory obligation.

49. Finally, with respect to disclosure by the applicant to the union, the SEIU submits that it was not up to the employer to decide the timing of the disclosure of past pay equity information. As the exclusive bargaining agent, the union says that it was entitled to all relevant pay equity information when it made the request. It relies for support in this regard upon the decision of the Tribunal in Cybermedix Health Services (1990), 1 P.E.R. 41.

50. In conclusion, the union submits that the Tribunal ought to uphold the Review Officer’s Order and make an order for interest on any pay equity adjustments that may be required. The SEIU also asks that the panel remain seized for the purpose of monitoring the parties’ progress in negotiating pay equity through the receipt of monthly reports from the parties over a period of six months at which point pay equity is to be achieved.

51. In its reply argument, the applicant made the following points:

• It was rational and appropriate for the employer to consider the cost implications of pay equity, and to set wages at market rates while ensuring, at the same time, that those market rates complied with the Act;
• There is no statutory requirement that an employer, particularly one not covered by Parts II, III and III.1 of the Act, must consult the employees regarding job content; furthermore there is no statutory provision requiring employers to record all the data upon which it relies in the pay equity process, although the lack of documentation may make it more difficult to prove compliance with the Act;
• While job questionnaires are useful, the lack of questionnaires does not invalidate the pay equity process;
• Mr. Schegel had a great deal of hands on experience from which to draw in assessing the content and the value of the jobs in the establishment;
• There was no evidence that Mr. Schlegel did not rate the jobs appropriately;
• Although there have been changes in the workplace since Mr. Schlegel’s analysis in 2001, Mr. Schegel’s evidence is that those changes did not substantially affect job content, and therefore there was no reason to consider any pay equity adjustments;
• If having a plan of action to achieve pay equity is required by the Act, then Mr. Schlegel had one, and executed it;
• Whatever rights, if any, the CHCW might have had to challenge the pay equity process, the SEIU did not acquire those rights when the CHCW was decertified;
• With respect to the refusal by the employer to disclose to SEIU the gender neutral comparison system used by Mr. Schlegel to rate the jobs in 2001, the applicant points out that the pay equity issues initially raised by the SEIU had nothing to do with the comparison system, but were related to the gender dominance of job classes; and
• The request of the SEIU that the panel remained seized to monitor the progress of pay equity negotiations is inappropriate, because it casts the Tribunal in a policing, rather than an adjudicative, role.

Decision

52. The provisions of the Act relevant to the issues in dispute are set out in Appendix A attached to this decision.

53. The applicant first began operating its business in 1998, ten years after the “effective date” (January 1, 1988) on which the Act applied. The applicant is not subject to Part II, III or III.1 of the Act, but is subject to Parts I, IV and V. As a “Part I” employer the applicant was required to comply with those provisions of the Act applicable to it when it began to operate its business and engage a workforce.

54. Compliance with Part I entails a fairly complex set of tasks that must be undertaken in advance of the employment of the workforce, whether the business is union or non-union. These tasks include: establishing job classes as defined by the Act ; determining the gender dominance of the job classes; making comparisons between male and female job classes in terms of compensation, as well as value of work performed having regard to skill, effort, responsibility and the conditions under which the work is performed. If the comparisons between male and female job classes reveal gender discrimination in compensation for work performed by employees in female job classes, the Part I employer must redress it by adjusting the job rates of the lower paid employees in the female job class. The Part I employer does not enjoy the benefit of a phase-in period in order to achieve pay equity. It must be in compliance with the Act from the outset. Its compensation practices must provide for pay equity from the beginning, and then those compensation practices must always be maintained thereafter, except where the Act otherwise permits.

55. As a “Part I employer”, the applicant was not required to make or post a pay equity plan. Concomitantly, because the applicant was not obligated to, and did not, post a pay equity plan to which employees might file objections, the applicant did not enjoy the benefit of “deemed compliance” with the Act, as set out in subsection 15(8).

56. I have difficulty with the union’s argument that the applicant was necessarily required to involve job incumbents in the pay equity analyses it undertook in 1998 and 2001, or make use of a particular tool, such as a questionnaire, to collect job content. Part I of the Act does not prescribe any particular method or source of job content collection. The employer did not engage any employees prior to opening the first facility in Guelph in 1998. In the Haldimand-Norfolk decision at paragraph 24, the Tribunal remarked that “…section 5 of the Act [which prescribes the criteria to be applied in determining the value of work] requires a standard of correctness, that is, the skills, effort responsibility and working conditions must be accurately and completely recorded.” But the Tribunal did not go so far as to suggest that the only acceptable source of job content is the job incumbent, or that job data must be collected via a questionnaire completed with the job incumbent’s input.

57. The applicant bears the onus in this case of demonstrating that, at some point, it achieved pay equity under subsection 5.1 of the Act. It is exceedingly difficult to meet such an onus in circumstances where the documentary record of the employer’s pay equity activities and analysis is as sparse as it is in this matter. How did Mr. Schlegel determine the gender dominance of the job classes? He relied upon his previous experience and powers of observation. Beyond that, there were no specifics provided. How did Mr. Schlegel come to the conclusions he did concerning the value of work in each job class having regard to the criteria of skill, effort and responsibility, as well as the conditions under which the work was performed? He had the benefit of some, but not all job descriptions. For the most part, however, he relied upon his own knowledge of the work from previous experience. He did not make detailed notes. He could not always explain what specifically he took into account when scoring job classes using the criteria under the CUPE plan. In other words, there is little or no source of information, apart from Mr. Schlegel’s assurances that he possessed the necessary knowledge, that would assist the Tribunal to verify the accuracy of his ratings.

58. In addition to the meagre documentary record supporting Mr. Schlegel’s analyses in 1998 and 2001, there is the additional problem that the applicant did not do a full comparison of the compensation between the female and male job classes. The evidence disclosed that neither Mr. Schlegel nor Bass and Associates took into account a comparison of benefits between male and female job classes. They only considered hourly rates of pay. The Act’s definition of “compensation” in subsection 1(1) requires more than that.

59. In my view, the evidence of the applicant falls well short of demonstrating that, in 1998 or 2001, prior to the arrival of the CHCW, the applicant accurately and completely recorded job content sufficient to enable it to compare the value of the work of male and female job classes. Furthermore, the applicant did not fully compare compensation as between male and female job classes. Accordingly, the Tribunal is unable to conclude that, on a balance of probabilities, the applicant achieved pay equity within the meaning of section 5.1 or section 6 in 2001 prior to dealing with the CHCW.

60. The next question, then, is, whether or not the applicant achieved pay equity under Part I of the Act through the pay equity agreement reached with the CHCW. The first point to be made here is that the CHCW was not the bargaining agent for the bargaining unit of the applicant’s nursing homes in 2001. It had no claim to bargaining rights until April 22, 2003 when it was certified by the OLRB. Until then, it was not a bargaining agent within the meaning of the Act with any right to bargain pay equity on behalf of the applicant’s employees. That being said, the 2001 negotiations between the CHCW and the employer are relevant, because they appear to be the sole basis upon which the parties later reached their pay equity agreement in 2003. The evidence suggests that, with respect to those 2001 negotiations, the applicant and the CHCW relied chiefly, if not exclusively, upon Mr. Schlegel’s 2001 non-union pay equity analysis as the basis for their pay equity agreement. They then incorporated the pay equity agreement into a collective agreement covering a full-time and part-time bargaining unit consisting of the Hamilton nursing home facility and five other nursing homes in five different municipalities, none of which were yet operating or staffed. That collective agreement was invalidated by the decision of the OLRB. In my view, the 2001 pay equity agreement was also a nullity, because the CHCW had no status as a “bargaining agent” within the meaning of subsection 1(1) of the Act to negotiate or agree to anything regarding pay equity on behalf of the employees.

61. In 2003, the parties negotiated a valid collective agreement consisting of one bargaining unit covering both full-time and part-time employees working in both nursing and retirement homes spanning six municipalities. The 2003 collective agreement contained substantially the same pay equity agreement, but it applied now not only to nursing home employees but also to retirement home employees. Moreover, at the time that collective agreement was negotiated, three of the six facilities were operating and staffed. In other words, the parties found themselves in a much different situation in 2003 than existed in 2001. In 2003, the Hamilton facility was no longer contemplated as part of the bargaining unit. In 2003, the bargaining unit comprised retirement homes as well as nursing homes, and extended to six municipal locations from five. In 2003, half of the employer’s facilities covered by the collective agreement was operating and staffed. There were bargaining unit employees available from whom to seek input about job content. The world in which Mr. Schlegel conducted his pay equity analysis in 2001 was a new world in May of 2003 when the applicant and the CHCW sat down to negotiate their collective agreement.

62. Whether or not the employer and the CHCW gave any consideration to these circumstances in terms of pay equity in the workplace was not disclosed by the evidence. However, the substance of the 2001 pay equity agreement was incorporated into the 2003 collective agreement without any significant change in language. All the job classes remained female job classes, and the parties continued to agree that the requirements of the Act were satisfied.

63. Subsection 1(5) of the Act states, however, that, in deciding or agreeing that a job class is a female or a male job class, “regard shall be had to the historical incumbency of the job class, gender stereotypes of fields of work and such other criteria as may be prescribed by the regulations.” As I have indicated above, counsel for the employer submitted that, while the parties are obligated to take into account historical incumbency and gender stereotypes in fields of work when agreeing on the gender dominance of a job class, nothing in subsection 1(5) limits the parties from taking into account other factors as well. In that regard, the evidence was that the employer and the CHCW took into account the nursing industry practice, as manifested by the Master Plan reached between Local 220 and a group of participating nursing home employers, of treating all job classes as female job classes. Counsel submitted that it was reasonable to adopt the same industry practice in the employer’s workplace.

64. I am not persuaded by this argument. Putting aside the doubts I have concerning the interpretation of subsection 1(5) as advanced by the applicant, as well as my concern with the sufficiency of evidence that the applicant and the CHCW ever took into account the historical incumbency or gender stereotypes associated with any job classes in the bargaining unit, I cannot accept that it was reasonable for the parties to reach the conclusions on the gender dominance of the job classes on the basis of the $1.50 pay equity plan. First of all, the $1.50 pay equity plan covered only nursing homes. In contrast, the CHCW bargaining unit consisted of employees in both retirement homes and nursing homes. Secondly, the $1.50 pay equity plan was made pursuant to the proxy provisions under Part III.1 of the Act, none of which apply to the applicant. In all the circumstances, I find it was unreasonable of the employer and the CHCW to treat all the job classes in the CHCW bargaining unit as female job classes based upon a proxy pay equity plan that applied only to nursing home employers.

65. But quite apart from my view concerning the application of subsection 1(5), the pay equity agreement of 2003 was based upon a false premise. In 2001, the applicant assured the CWCW that it had taken all the necessary steps to achieve compliance with the Act. I have no reason to doubt the sincerity of the applicant’s belief that it was in compliance, but I have found that Mr. Schlegel’s efforts to achieve pay equity fell short. In 2003, nothing had changed. There was no evidence that the CHCW and the applicant reached their 2003 pay equity agreement on some basis other than Mr. Schlegel’s 2001 analysis and the underlying assumption in the $1.50 pay equity plan that every job class was a female job class.

66. I find that the pay equity agreement between the CHCW and the applicant did not achieve pay equity for the employees represented by the CHCW. It follows that when SEIU was certified and displaced the CHCW, pay equity had not been achieved in the bargaining unit for which the SEIU held bargaining rights. As the bargaining agent, it was entitled to inquire about, and satisfy itself concerning, the extent of pay equity compliance in the bargaining unit. It was entitled to all pay equity information within the employer’s possession pertaining to the bargaining unit. However, as it appears the SEIU has now received all the information within the employer’s possession that exists on the subject of pay equity, there is no utility in making further orders or directions in that regard.

67. The SEIU requests that the Tribunal uphold the Review Officer’s Order. The Order states the following:

68. the establishment for the Pay Equity Agreement is all the employees of the Employer in the Province of Ontario;

69. the parties to amend the Pay Equity Agreement to reflect that the bargaining unit job class Maintenance is a male job class. I further order these job classes are female; Laundry Aide, Dietary Aide, Housekeeping Aide, PSW, RPN, Chef, Cook.

70. the parties to consider the Maintenance job class as a potential male comparator for the female job classes in the bargaining unit and if necessary, I order the parties to seek other male comparators according to subsections 6(2), 6(3), 6(4)(a), 6(5) and 21.2(1);

71. the parties to agree on a gender neutral comparison system which the Employer and SEIU will use to evaluate all job classes necessary for the implementation of pay equity for the female job classes in the bargaining unit.

72. the parties to collect job data from the incumbents in the job classes regarding their duties and responsibilities to inform the job evaluation process;

73. the parties to maintain pay equity for the bargaining unit up to and including the year 2007 when employees of two Retirement Homes joined the bargaining unit;

74. the parties to complete the pay equity analysis for the female job classes in the bargaining unit by the six month anniversary date of the issue date of this Order; and

75. the Employer to pay interest on all retroactive amounts owed, if any, in accordance with the calculation process established in Halowell House Ltd., [1980] OLRB Rep. Jan. 35 which has been followed and applied by the Pay Equity Hearings Tribunal in Clow (No. 3) (1996). 7 P.E.R. 33. Afier calculating the amount owed to each employee and former employee, the amount is divided in half and the Bank of Canada prime rate of interest at the time the first payment was required is applied.

76. The parties took no issue with the Officer’s finding concerning the employer’s Ontario establishment. Accordingly, that portion of the Order is confirmed.

77. I do not accept the apparent assumption underlying the remainder of the Order that the parties are obligated to negotiate the achievement of pay equity. In my view, nothing in Part I compels such a result. Part II of the Act, which has no application to Oakwood, specifically mandates negotiations between trade unions and employers concerning gender neutral comparison systems, pay equity plans, and the amendment of pay equity plans (see sections 14 and 14.1). Parts III.1 and III.2, which also do not apply to Oakwood, incorporate the bargaining provisions under sections 14 with necessary modification (see section 21.8 under Part III.1 and section 21.20 under Part III.2). There is no equivalent bargaining regimen under Part I. However, Part I contemplates that an employer may need to obtain the agreement of the bargaining agent on certain discrete aspects of the pay equity process, where applicable. For example, decisions by employers concerning the gender dominance of job classes based upon historical incumbency and/or gender stereotypes of field of work require the agreement of the bargaining agent: see the definitions of male job class and female job class under subsection 1(1), in conjunction with subsection 1(5). However, the responsibility for achieving pay equity rests with the employer. Subsection 7(1) makes this clear: it places the burden of establishing and maintaining pay equity compliant compensation practices squarely upon employers. And as subsection 7(2) indicates, trade unions must avoid agreeing to, or bargaining, compensation practices that would cause a breach of subsection 7(1). Whatever steps an employer may take to achieve pay equity in a bargaining unit must necessarily be readily transparent to the bargaining agent so that it can assure itself it is not sanctioning compensation practices that run afoul of the Act. But Part I does not envisage the same range of negotiations between employers and trade unions contemplated by other Parts of the Act.

78. A related concern I have with the Order is the Review Officer’s direction “to amend the Pay Equity Agreement to reflect that the bargaining unit job class Maintenance is a male job class.” This particular direction seems to assume that the pay equity agreement reached between the CHCW and the employer continues to have application in the workplace, and at least to some extent binds the SEIU and the applicant. The fact of the matter is that the pay equity agreement did not survive the first collective agreement between the applicant and the SEIU, and has not been agreed to by SEIU independently of the collective agreement. It seems to me that the parties ought not to be constrained in any way by the pay equity agreement, particularly as I have found that it did not serve to achieve pay equity in the workplace.

79. The employer has ninety days from the date of this decision to achieve pay equity in the bargaining unit for which SEIU is the bargaining agent. Within that period, it must inform the SEIU in writing of all the steps it intends to take and/or has taken to achieve compliance with the Act, and to provide SEIU with all the information upon which the applicant relies in achieving compliance with the Act. Any decisions the employer may wish to make pursuant to the section 1(1) definitions of female job class and male job class must meet with the agreement of SEIU and otherwise comply with subsection 1(5).

80. In light of the rather unique circumstances of this case, and given that SEIU was certified to represent the bargaining unit on March 1, 2006, it seems to me that March 1, 2006 ought to be the effective date for purposes of determining the job content of the job classes as well as for retroactivity of wage adjustments should any be due any female job class within the bargaining unit. I so order.

81. Nothing in this decision should be taken to preclude or discourage the parties from voluntarily engaging in a broad range of negotiations concerning all aspects underlying the achievement of pay equity in the bargaining unit.

82. I remain seized to deal with any issues concerning the implementation of this decision.

Dated at Toronto this 15th day of December, 2010.

“Patrick Kelly”

Patrick Kelly, Vice-Chair

APPENDIX “A”

[PAY EQUITY ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html) PROVISIONS

PART I

GENERAL

1.(1) In this Act:

“bargaining agent” means a trade union as defined in the Labour Relations Act that has the status of exclusive bargaining agent under that Act in respect of any bargaining unit or units in an establishment and includes an organization representing employees to whom this Act applies where such organization has exclusive bargaining rights under any other Act in respect of such employees;

“compensation” means all payments and benefits paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount;

“effective date” means the 1st day of January, 1988;

“female job class” means, except where there has been a decision that a job class is a male job class as described in clause (b) of the definition of “male job class”,

(a) a job class in which 60 per cent or more of the members are female,

(b) a job class that a review officer or the Hearings Tribunal decides is a female job class or a job class that the employer, with the agreement of the bargaining agent, if any, for the employees of the employer, decides is a female job class;

“job class” means those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates;

“male job class” means, except where there has been a decision that a job class is a female job class as described in clause (b) of the definition of “female job class”,

(a) a job class in which 70 per cent or more of the members are male, or

(b) a job class that a review officer or the Hearings Tribunal decides is a male job class or a job class that the employer, with the agreement of the bargaining agent, if any, for the employees of the employer, decides is a male job class;

“pay equity plan” means,

(a) a document as described in section 13, for a plan being prepared under Part II, or

(b) a document as described in section 21.6, for a plan being prepared or revised under Part III.1;

“private sector” means all of the employers who are not in the public sector;

“public sector” means all of the employers who are referred to in the Schedule;

1(5) In deciding or agreeing whether a job class is a female job class or a male job class, regard shall be had to the historical incumbency of the job class, gender stereotypes of fields of work and such other criteria as may.

3.(1) This Act applies to all employers in the private sector in Ontario who employ ten or more employees, all employers in the public sector, the employees of employers to whom this Act applies and to their bargaining agents, if any.

4.(1) The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes.

(2) Systemic gender discrimination in compensation shall be identified by undertaking comparisons between each female job class in an establishment and the male job classes in the establishment in terms of compensation and in terms of the value of the work performed

5.(1) For the purposes of this Act, the criterion to be applied in determining value of work shall be a composite of the skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed.

5.1(1) For the purposes of this Act, pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job-to-job method of comparison or the proportional value method of comparison and any adjustment to the job rate of each female job class that is indicated by the comparison has been made.

6.1(1) For the purposes of this Act, pay equity is achieved under the job-to-job method of comparison when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value.

(2) Where there is no male job class with which to make a comparison for the purposes of subsection (1), pay equity is achieved when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate of a male job class in the same establishment that at the time of comparison had a higher job rate but performs work of lower value than the female job class.

(3) If more than one comparison is possible between a female job class in an establishment and male job classes in the same establishment, pay equity is achieved when the job rate for the female job class is at least as great as the job rate for the male job class,

(a) with the lowest job rate, if the work performed in both job classes is of equal or comparable value; or

(b) with the highest job rate, if the work performed in the male job class is of less value.

(4) Comparisons under the job-to-job method of comparison,

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

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

(5) If, after applying subsection (4), no male job class is found in which the work performed is of equal or comparable value to that of the female job class that is the subject of the comparison, the female job class shall be compared to male job classes throughout the establishment.

7.(1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).

PART II

IMPLEMENTATION: PUBLIC SECTOR AND LARGE PRIVATE SECTOR EMPLOYERS

11.(1) This Part applies to all employers in the public sector, all employers in the private sector who, on the effective date, employ 100 or more employees and those employers in the private sector who post a notice under section 20.

(2) This Part does not apply to an employer who does not have employees on the effective date.

(3) Despite subsection (2), sections 13.1, 14.1 and 14.2 apply to public sector employers that did not have employees on the effective date but that had employees on July 1, 1993.

PART III.1 PROPORTIONAL VALUE METHOD OF COMPARISON

21.1(1) This Part applies to employers to whom Part II applies and to public sector employers that did not have employees on the effective date but that had employees on July 1, 1993.

21.8 Sections 14, 16 and 17 apply, with necessary modifications, with respect to a pay equity plan that is prepared or amended under this Part for employees in a bargaining unit.

PART III.2

PROXY COMPARISON METHOD OF COMPARISON

21.12(1) This Part applies to those employers who are declared, by order of a review officer, to be seeking employers for the purposes of this Part.

21.20 Sections 14, 16 and 17 apply, with necessary modifications, with respect to a pay equity plan that is prepared under this Part for employees in a bargaining unit.

PART IV

ENFORCEMENT

22.(1) Any employer, employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining that there has been a contravention of this Act, the regulations or an order of the Commission.

22.(2) Any employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining with respect to a pay equity plan that applies to the employee or group of employees that,

(a) the plan is not being implemented according to its terms; or

(b) because of changed circumstances in the establishment, the plan is not appropriate for the female job class to which the employee or group of employees belongs.

Footnotes

1. 1The employer and the residents of retirement homes are subject to the Landlord and Tenant Act. After the hearing in this matter concluded, Bill 21 (Retirement Homes Act, 2010) passed third reading in the Legislative Assembly. Among other things, Bill 21 contemplates the licensing and inspection of retirement homes.
2. 2Although he was not certain, Mr. Schlegel thought the job evaluation plan was one developed by the Canadian Union of Public Employees (“the CUPE plan”). There is no dispute that he used the CUPE plan several years later. There is also no dispute that Mr. Schlegel gave no consideration to adapting the CUPE plan as a gender neutral comparison system to the needs of his workplace. He simply accepted Mr. Bass’s advice that he should use the CUPE plan.
3. 3Mr. Schlegel also sits as a member of the board of directors of the entity which operates Winston Park. That entity is separate and apart from the applicant.
4. 4The CUPE plan contemplates the use of job questionnaires filled out by job incumbents and confirmed by the incumbents’ supervisors. At the time Mr. Schlegel engaged in his analysis in 2001, the Hamilton nursing home was not operating and did not have an active workforce.
5. 5The Guelph retirement home did not employ a Maintenance Helper.
6. 6The participating employers and SEIU Locals reached agreement, after independently reviewing the facts, that, in comparing Health Care Aide wages between private nursing homes and municipal homes for the aged, the average pay gap was $1.50.
7. 7In 2006, however, the salary of the Head Office Accountant surpassed the wage of the RPN by 9 cents per hour; in subsequent years, the RPN’s wage was greater than the Head Office Accountant.
8. 8The applicant proposed, and apparently the CHCW ultimately agreed to, a wage schedule that was approximately 80 cents per hour less than the wage schedule at Winston Park. This disparity was meant to recognize the fact that employers like Winston Park had, until approximately 2000, been receiving government pay equity funding that was not made available to “new bed” nursing homes like the applicant. In 2004, the Ontario government introduced “equalization funding” which nursing homes were entitled to use in a variety of ways, including wage increases. (The question of the use of equalization funding in CHCW-represented facilities of the applicant is discussed in more detail later in the decision.) The applicant used the equalization funding to bring the wages at the Hamilton nursing home, now represented by the Canadian Auto Workers, to or near the wage level at Winston Park. Mr. Schlegel testified that, though this increase in wages was characterized as a pay equity adjustment, there was in fact no pay equity obligation upon the applicant to adjust wages.
9. 9The CUPE plan and other pay equity documents which Mr. Schlegel and/or Bass & Associates used and/or generated in 2001 to evaluate the Hamilton nursing home jobs did, of course, exist, but Mr. Williams was not aware or told of those when he responded to the SEIU.
10. 10As part of the 2009 review it was determined that the Registered Practical Nurses were entitled as of 2006 to a nine cent per hour adjustment in wages. That adjustment has not yet been implemented.
11. 11Section 3 of the Act.
12. 12Section 4 of the Act.
13. 13Subsection 1(5) of the Act.
14. 14Subsection 6(1) of the Act.
15. 15In addition to the lack of documentation about job content and the failure to consult with employees once they occupied their positions, the union pointed out that, in terms of actual ratings, the employer, for one example, gave every female job class the same rating under the communication factor in the CUPE plan.