Pay Equity Hearings Tribunal

3484-12-PE Canadian Union of Public Employees Local 896, Applicant v. Au Chateau Home for Aged, Respondent.

BEFORE: Patrick Kelly, Vice-Chair, Ann Burke and Carol Phillips, Members.

DECISION OF THE TRIBUNAL: October 4, 2013

This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) pursuant to subsection 25.1(4) of the Act to enforce the terms of a settlement in Tribunal File No. 0226-11-PE. The parties have agreed that this matter is to be dealt with in writing, without a hearing. Following a careful review of the parties’ submissions, we find that, for the reasons that follow, the settlement is clear and unambiguous, and that the respondent employer has implemented its terms.
The settlement reads as follows:

Memorandum of Settlement

Between

Canadian Union of Public Employees, Local 896

And

The West Nipissing Home for the Aged (c.o.b. Au Chateau)

The parties agree to resolve all outstanding issues between them in the Pay Equity Hearings Tribunal proceeding 0226-11-PE on the basis of the terms set forth in these Minutes. For clarity, the parties agree that this resolution is a settlement under s.25.1 of the Pay Equity Act.
The parties agree to make certain pay equity adjustments to positions within the bargaining unit. Other than as provided below, no other job classes in the bargaining unit are entitled to any pay equity adjustments, retroactively or otherwise, as of the date of this settlement.
The adjustments, in cents per hour, are as follows. As a result, effective January 1, 2010 the rate of pay for each of the classifications is increased by an amount which is the aggregate of the 4 adjustments listed below.

Job Class

January 1, 2007

January 1, 2008

January 1, 2009

January 1, 2010

Respite

1.75 cents

Dietary

5 cents

Health Care Aid

43.75 cents

Cook

50 cents

RPN

2.5 cents

Adjuvant

2 cents

The retroactive adjustments to current employees will be paid within 60 days of the date of this settlement. Persons who were formerly employed by the Employer will be contacted by regular mail at their last known address within 30 days of this settlement. They will be advised that they are entitled to a retroactive payment under this settlement and they must contact the Employer in order to claim that payment within 30 days of the date of the letter or they will be deemed to waive their right to payment.
The parties agree that no interest or other charges on top of the amount set forth in paragraph 3 are owing.
This settlement is without prejudice to any position taken by either party in this proceeding and is made solely for the purpose of resolving the present dispute.

October 17, 2011

For the Employer: For the Union:

Jacques Dupuis, Christine Maurince, Marie Larocque,

Bernard Levesque Chantal Lindsay

At the time the settlement was reached on October 17, 2011, the parties had referred a collective bargaining dispute concerning the terms of a three-year collective agreement to interest arbitration. The hearing in that matter took place on June 30, 2011, well before the settlement of the pay equity dispute. The award issued on December 13, 2011.
The previous collective agreement was for a period of three years, from January 1, 2006 until December 31, 2008, and it provided for general wage increases of 2.5% in each of the first and in the second years, and 3% in the third. The interest arbitration award settled the terms of an agreed three year collective agreement, effective January 1, 2009. The award granted general wage increases of 2.5% effective January 1, 2009, 2% effective January 1, 2010 and 2% effective January 1, 2011.
The employer paid the pay equity adjustments under the settlement as an aggregate, cents-per-hour sum, effective January 1, 2010. In other words, the amount of each of the four cash payments to a job class when added together produced a total pay equity per hour wage adjustment by which the rate of pay of the job class was increased effective January 1, 2010.
The applicant takes the position that the pay equity adjustments in the settlement were to be added to the rates of pay of the recipients prior to the application of the general wage percentage increases that were called for in the last two years of the old collective agreement as well as the wage percentage increases awarded by the arbitration panel for the first two years of the new collective agreement. The applicant submits that this method is mandated by subsection 13(10) of the Act, which reads:

13(10) A pay equity plan that is approved under this Part prevails over all relevant collective agreements and the adjustments to rates of compensation required by the plan shall be deemed to be incorporated into and form part of the relevant collective agreements

In support of its position, the applicant refers to the decision of the Tribunal in Glengarry Memorial Hospital, (1991) 2 P.E.R. 153. In that matter, as here, the union filed an application with the Tribunal following the order of a Review Officer that found the maintenance supervisor was the male job class for the female job class of registered nurse. As is the case in the present matter, the parties then entered into a settlement. They agreed to execute a pay equity plan and implement adjustments for registered nurses effective January 1, 1990 consistent with the Review Officer’s comparison of the two job classes in issue. As a consequence, on January 1, 1990, the registered nurse job class was increased by $0.37 per hour, from the $19.53 rate in the collective agreement to $19.90, reflecting the difference between its job rate and that of the maintenance supervisor. Effective April 1, 1990, the collective agreement rate of $19.53 was increased $20.62 per hour, an increase of $1.09. Thus, the Hospital paid the registered nurses $20.62 from that date forward, with no further pay equity adjustment, reasoning that the rate of $20.62 exceeded the job rate of the comparator male job class.
The Tribunal disagreed with the Hospital’s position. It ruled that, in agreeing to pay the $0.37 pay equity adjustment, by virtue of subsection 13(10) of the Act the collective agreement rate of $19.53 was effectively changed to $19.90. Therefore the subsequent $1.09 increase negotiated in the collective agreement had to be calculated on top of the $19.90 rate.
The responding party (“the employer”) submits that, if the applicant’s view of the settlement is accepted, then the rates of pay of the job classes covered by the settlement will exceed the aggregate of the four cents-per-hour adjustments in the settlement, and that such a result is clearly not what the settlement contemplates. Therefore, regardless of what subsection 13(10) might arguably require, the very nature of a settlement is that the parties have compromised on their view of what might, following litigation, be the correct result in fact and law. Presumably, the parties made compromises resulting in the settlement because they thought that was a better way to resolve their dispute than have the Tribunal determine the issue following perhaps protracted and costly litigation. Accordingly, the employer submits, the Tribunal’s role under section 25.1 is limited to enforcing the settlement, which binds the parties. It is not authorized to inquire whether or not the settlement makes sense or is on all fours with every requirement under the Act.
In support of its position, the employer refers to the decision of the Tribunal in Ontario Nurses’ Assn. v. Women’s Christian Assn. of London (c.o.b. Parkwood Hospital), [1996] O.P.E.D. No. 9. There the parties reached a settlement under section 25.1, following which the trade union applicant requested that the Tribunal dismiss the responding party employer’s prior request for reconsideration. The Tribunal saw no need to make any order concerning the request for reconsideration, reasoning that it had been subsumed in the settlement. The employer submits that the Parkwood Hospital case stands for the principle that, once a matter is settled, the Tribunal will enforce it nothwithstanding any subsequent claim a party may advance.
The relevant statutory provisions for the purposes of this dispute are subsection 13(10) and section 25.1 of the Act. They read as follows:

25.1(1) The parties to a matter in respect of which the Hearings Tribunal is required to hold a hearing may settle the matter in writing.

(2) A settlement under subsection (1) binds the parties to it.

(3) If a bargaining agent is a party to a settlement under subsection (1), the settlement also binds the employees who are represented by the bargaining agent.

(4) A party to the settlement may file with the Hearings Tribunal a complaint that the settlement is not being complied with.

(5) The Hearings Tribunal shall hold a hearing respecting the complaint.

(6) If the Hearings Tribunal finds that a party is not complying with the settlement, it may order the party to take such steps as it may specify to come into compliance or to rectify the failure to comply.

In dealing with a complaint under subsection 25.1(4), the Tribunal’s first task is to determine whether or not a party is failing to comply with a settlement. If, and only if, the Tribunal finds non-compliance is it then authorized by subsection 25.1(6) of the Act to make an order against the non-complying party.
In the context of the undisputed facts set out earlier in this decision, nothing on the face of the settlement suggests, as the applicant insists, that it is to be read in conjunction with subsection 13(10) of the Act, or, for that matter, in conjunction with any other statutory provision. Nor is there anything in the settlement to suggest that the parties intended that each of the four cents-per-hour adjustments were intended to be folded into the employees’ wage rates before the application of each yearly percentage wage increase pursuant to the collective agreement. In fact, if that were the case, one might have expected that the columns in the settlement headed “January 1, 2007”, “January 1, 2008”, “January 1, 2009” and “January 1, 2010” to have instead read something along the lines of: “December 31, 2006”, “December 31, 2007”, “December 31, 2008” and “December 31, 2009”. That would have made clear the intention of the parties to incorporate the pay equity adjustments before the application of the percentage wage adjustments.
The settlement as written, however, does not dictate such a result. What it does suggest is that what the parties intended, quite simply, was that each of the wage rates of the affected job classes would be adjusted by the sum of the four adjustments effective January 1, 2010. So, for example, the employees in the Heath Care Aide job class would expect that, as of January 1, 2010, their rate of pay would increase by an additional $1.75 per hour, regardless of, but in addition to, any collectively bargained increase. If the parties had contemplated a more complex scheme, as submitted by the applicant that ought to have been described in the settlement.
Nor are we persuaded by the applicant’s argument concerning the application of subsection 13(10) necessarily applies in light of the outcome in Glengarry Memorial Hospital, supra. In that case, it will be recalled, the pay equity adjustments were finalized months before the collective agreement wage increase took effect. In the case before us, the parties negotiated pay equity adjustments with full knowledge that, for the first two years of the period covered by the settlement, collective agreement wage increases had already taken full effect. If it had been their intention to essentially revise the collective agreement wage increases in years 2008 and 2009 by first folding in the pay equity adjustments for those two years, they ought to have incorporated language to that effect in the settlement. That they did not do so suggests they were not concerned about any impact subsection 13(10) might otherwise have had on the structuring of any of the four pay equity wage adjustments. The parties were content to compromise on that issue, for the sake of reaching a voluntary settlement. The Tribunal is not about to go behind the settlement, as the applicant invites us to do, in order to force the application of subsection 13(10) in the absence of some direct or indirect indication in the settlement itself that that was what the parties intended.
We conclude that the respondent has not failed to comply with the settlement. It has in fact appropriately implemented the terms of the settlement. Accordingly, the application is dismissed.

Dated at Toronto this 4^th day of October, 2013.

“Patrick Kelly”

Patrick Kelly, Vice-Chair

“Ann Burke”

Ann Burke, Member

“Carol Phillips”

Carol Phillips, Member

Canadian Union of Public Employees Local 896 v. Au Chateau Home for Aged, 2013 CanLII 67138

Case Summary

Pay Equity Hearings Tribunal