3024-11-PE Service Employees International Union, Local 1, Applicant v. Brant Community Healthcare System, Bluewater Health, Norman Site, Hotel Dieu Shaver Health and Rehabilitation Centre, and Niagara Healthcare System, Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair, Catherine Bickley and Ann Burke, Members.
DECISION OF THE TRIBUNAL: August 16, 2012
This is an application by the Service Employees International Union, Local 1 Canada (“the union” or “Local 1”) under the Pay Equity Act (“the Act”) concerning an Order of Review of Officer Doreen Lurie (“the Review Officer”) dated November 2, 2011 (“the Order”).
At the risk of over simplification, this application is largely about whether or not the gender neutral comparison system (“the GNCS”) - previously agreed to by the parties - complies with the Act, and also whether or not, having agreed to the GNCS, it is too late for the applicant to insist that the GNCS be altered.
The Order was issued in response to an application to review services initiated by Brant Community Healthcare System, Bluewater Health, Norman Site, Hotel Dieu Shaver Health and Rehabilitation Centre, and Niagara Healthcare System (referred to collectively as “the Hospitals”) after Local 1 had alleged that the gender neutral comparison system (“the GNCS”) negotiated and agreed between the union and the Hospitals did not capture and properly evaluate the work in the bargaining unit. At the time Local 1 raised its allegation, the union and the Hospitals had jointly negotiated not only the GNCS but the job evaluation manual (“the manual”) describing how jobs were to be evaluated having regard to a number of subfactors and a scoring system, the subfactor weighting system, and a questionnaire to be used to gather job information to apply to the various subfactors described in the manual. Moreover, the initial rating process of bargaining unit positions had been completed at the Brant Community Healthcare System.
Local 1 was concerned that two subfactors – Impact on Others and Consequences of Action – in the GNCS were being applied in the evaluation of jobs without consideration of anything but negative health outcomes that could result from errors in performing the duties of the bargaining unit positions. Consequently, Local 1 was concerned that job duties performed by employees such as Registered Practical Nurses, Personal Service Workers and other patient care positions to enhance the health and well-being of their patients were not being measured. The union demanded that the GNCS be amended by adding a further rating note to capture what it considered to be important job content. The Hospitals did not agree, and consequently they sought the assistance of Review Services. The Review Officer determined that neither subfactor was ambiguous and concluded that the parties had agreed to a GNCS which was in compliance with the Act. Local 1’s application takes issue with the Review Officer’s determination concerning the Impact on Others subfactor. Local 1 contends that that subfactor does not capture the full value of work performed and therefore does not comply with the Act. In the alternative, the union submits that the subfactor has either been incorrectly applied and/or is ambiguous insofar as it conflicts with the questionnaire agreed upon by the parties and subsequently utilized to gather job data.
At a pre-hearing case management conference, the parties were requested by the Chair of the Tribunal to file and deliver submissions and witness statements concerning the standard of review to be applied by the Tribunal in the determination of the GNCS issue. Is the standard one of correctness or one of reasonableness? In either case, does the GNCS meet that standard? The Board is in receipt of the parties’ materials.
In his reply submissions, counsel for the applicant stated, among other things;
While the Applicant has provided these submissions at the request of the Pre-Hearing Conference Chair, the Applicant confirms that the Tribunal has not given notice that it wishes to decide any substantive issues by way of written hearing and the Applicant does not consent to any written hearing. This application raises important issues which must be addressed by way of oral evidence and submission.
Rule 69 of the Tribunal’s Rules of Practice states:
The Tribunal may conduct all or any other part(s) of the proceeding as a written hearing where it considers it appropriate in the circumstances. In determining appropriateness the Tribunal will consider whether any party asserts a good reason for not holding a written hearing.
This decision serves as notice to the parties that the Tribunal intends, subject to a determination of the applicant’s (and possibly the responding parties’) objection, to deal with the standard of review issue by way of written hearing.
As indicated there is also an issue raised by the responding parties concerning the timeliness of the union’s objection to the GNCS. In our view, that issue could be appropriately dealt with, together with any objections of the parties referred to in the previous paragraph, in a single day of oral hearing.
Accordingly, the Registrar is directed to set one day of hearing in this matter.
Dated at Toronto this 16th day of August, 2012.
“Patrick Kelly”
Patrick Kelly, Vice-Chair
“Catherine Bickley”
Catherine Bickley, Member
“Ann Burke”
Ann Burke, Member