PAY EQUITY HEARINGS TRIBUNAL

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.

DECISION OF PATRICK KELLY, VICE-CHAIR AND MEMBER CATHERINE BICKLEY: March 13, 2013

APPEARANCES: Mary Cornish, Jennifer Quito, Daina Green and Cathy Carrol for the applicant; Carolyn Kay, Chris Mathers, Kelly Poore, Fred Radunsky, Morrigan Grey, and Lisa Shepherd for the responding parties.

1. 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 Officer Doreen Lurie (“the Review Officer”) dated November 2, 2011 (“the Order”).

2. 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 raised a concern that two subfactors in the gender neutral comparison system (“the GNCS”) negotiated and agreed between the union and the Hospitals potentially did not capture and properly evaluate certain job duties undertaken by employees such as Registered Practical Nurses and Personal Service Workers in the bargaining unit. At the time Local 1 raised its concern, 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.

3. The Hospitals did not share the union’s concern that the subfactors in question were ambiguous, nor did it agree with the union’s proposal to add a clarifying rating note to the disputed subfactors. Consequently the Hospitals made their joint application to Review Services of the Pay Equity Commission. 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, particularly by the health care workers described above, 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.

4. 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.

5. The parties filed lengthy written submissions. Not surprisingly, the Hospitals argued that the standard of review was one of reasonableness, and that the GNCS freely negotiated between the parties met the standard of reasonableness. Whereas the union took the position that the standard of review was one of correctness and the GNCS did not meet that standard. Furthermore, the union noted that the Tribunal had not given notice that it wished to decide a substantive issue by way of written hearing, and that, in any case, the applicant objected to a written hearing. Consequently, by way of a decision dated August 16, 2012, the Tribunal set that issue (and an issue of delay raised by the Hospitals, which the Hospitals subsequently informed the Tribunal they do not wish to pursue as a preliminary matter but may pursue in final argument) down for hearing on January 29, 2013.

6. At the hearing on January 29, 2013, the union contended that there are good reasons not to hold a written hearing into the question of the standard of review, and that the Tribunal ought to defer a determination of the standard of review until there has been an opportunity to consider relevant evidence. The union contended that the case raises a unique issue, having to do with the interpretation of a GNCS subfactor. The union submitted that it is important to put evidence about the history of the development of that subfactor as well as the scope of the female job classes that the union says would be detrimentally affected if the subfactor is applied in such a way that only the impact of negative outcomes is measured.

7. The Hospitals contended that the union is seeking to have the Tribunal consider an issue that the union did not place before the Review Officer. As far as the Hospitals are concerned the only issue for determination was and is whether or not the parties reached an agreement regarding the GNCS and whether or not the parties’ representatives were authorized to make that agreement. If so, then the joint exercise which the Hospitals had engaged in with the union came to an end, and the individual hospitals were then free to proceed through their separate pay equity processes in their efforts to reach pay equity plans with the union. And all that remains for the Tribunal is a determination whether the GNCS meets the standard of reasonableness, a question which, the Hospitals say, does not require hearing any evidence.

8. In reply, the union pointed out that, in their referral to Review Services, the Hospitals clearly identified the union’s concern that the subfactors in question were “ambiguous”, that the job evaluation committee members too narrowly interpreted the subfactors, and that, in doing so, the value of work was not fully captured resulting in the possibility of the introduction of gender bias in the job evaluation process. In other words, the same case the union seeks to make before the Tribunal was front and centre at Review Services.

9. Having carefully considered the submissions of the parties, the majority is of the view that the union ought to be afforded the opportunity of presenting its case on the merits. The union’s concerns about the ambiguity and interpretation of the GNCS tool subfactors were raised before the Review Officer. The union has not effectively bypassed the necessary steps in the process of coming to the Tribunal for a determination of that issue. Nor have the parties yet reached agreement on a pay equity plan, although they had reached agreement on several constituent parts of, or preconditions to, a pay equity plan. Whether it was too late for the union to have taken the position that the GNCS fell short of the Act’s requirements due to ambiguity in the subfactors is an argument that the Hospitals remain entitled to make and one that the Tribunal will seriously consider, but after the Tribunal has the benefit of the evidence. Whether the GNCS should be measured by the yardstick of reasonableness or correctness in those circumstances need not be decided now.

10. That being said, there are a number of measures available to ensure an efficient and expeditious hearing. First, the parties ought to be able to reach agreement on most, if not all, the material facts. To that end, we direct counsel for the union to draft a statement of agreed facts for the consideration of counsel for the Hospitals within 30 calendar days of the date of this decision or such other period as both counsel may agree.

11. Secondly, the will-say statements provided by the union may well obviate the need for examination in chief, and should assist counsel for the Hospitals to organize an efficient cross-examination. Unless either of the parties objects in writing with reasons within 30 calendar days of this decision, the Tribunal will expect the union to ensure the attendance of the authors of the will-say statements in the course of the hearing for the purpose of being questioned in cross-examination and in re-examination. If counsel for the Hospitals does not intend to cross-examine on any one or more of the will-say statements, she is to advise counsel for the union accordingly, and the Tribunal will treat the facts set out in such will-say statement as having been proven.

12. Finally, should either of the parties anticipate calling viva voce evidence, they are to advise one another and the Tribunal of the names of the witnesses they intend to call and the nature of the evidence that the witness is expected to provide, not less than 10 days before the hearing.

13. Local 1 is to proceed first to present its case on the evidence.

14. The Registrar is directed to set a hearing date in consultation with counsel.

Dated at Toronto this 13th day of March, 2013.

“Patrick Kelly”

Patrick Kelly, Vice-Chair

“Catherine Bickley”

Catherine Bickley, Member

DECISION OF MEMBER, ANN BURKE: March 13, 2013

1. I dissent. I would have proceeded to deal first with the standard of review in the determination of the GNCS.

Dated at Toronto this 13th day of March, 2013.

“Ann Burke”

Ann Burke, Member