Ottawa Public Library Board v. The Ottawa-Carleton Public Employees Union, Local 503, 2015 CanLII 6950

PAY EQUITY HEARINGS TRIBUNAL

PEHT Case No: 2717-12-PE

Ottawa Public Library Board, Applicant v The Ottawa-Carleton Public Employees Union, Local 503, Respondent

PEHT Case No: 3497-12-PE

Ottawa-Carleton Public Employees' Union (CUPE) Local 503, Applicant v City of Ottawa - Ottawa Public Library Board, Respondent

BEFORE: Patrick Kelly, Vice-Chair, Carla Zabek and Carol Phillips, Members

APPEARANCES: Dan Palayew, Carmen Francis, Monique Desormeaux, Marianne Phillips and Jane Clark appearing for the Ottawa Public Library Board; Samantha Lamb, Brian Madden, Joan Keith and Susan Arab appearing for the Ottawa-Carleton Public Employees Union, Local 503

DECISION OF THE TRIBUNAL: February 3, 2015

1. These are applications under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”) in respect of an Order dated October 22, 2012 by Review Officer Al Coulen (“the Review Officer” or “Mr. Coulen”).

Synopsis

2. In January 2006, the Ottawa Public Library Board (“the employer” or “the OPL”) and Ottawa-Carleton Public Employees’ Union, Local 503 Library Group (“the union” or “the applicant”) signed a pay equity plan. The pay equity plan set out new salary scales for the union’s bargaining unit members for the years 2005 and 2006 and a schedule of retroactive payments going back to 2002. The pay equity plan was based upon a comparison of the employer’s predominantly female job classes with the administrative, office/clerical and technical/para-professional jobs in the City of Ottawa’s Inside/Outside bargaining unit (“the Inside/Outside unit”), which happened also to be represented by the union. The comparisons resulted in the establishment of OPL pay grades corresponding to the Inside/Outside unit’s pay grades 4 through 17. However, at the time of the signing of the pay equity plan in January 2006, collective bargaining between the City of Ottawa and the union over the terms and conditions of a renewal collective agreement (from 2005 to 2008) applicable to the Inside/Outside had not been completed.

3. In March 2006, some three months after the execution of the pay equity plan, an interim interest arbitration award was issued which granted the Inside/Outside unit a 3 per cent wage increase in each of 2005 and 2006. A second interim award released in December 2006 resulted in a further 3 per cent wage increase for 2007, and the final award, issued in December 2007, awarded a 3.25 per cent wage increase for 2008. The collective bargaining process involving the union and the OPL resulted in lower negotiated wage increases for the years 2005, 2006 and 2008 than were achieved for the Inside/Outside unit through interest arbitration. Consequently, a wage gap was created between the OPL’s female job classes and the City of Ottawa’s male job class comparators. This case is about whether or not that wage gap is permitted under the provisions of the Act.

4. The Review Officer’s Order determined that the pay equity agreement reached in January 2006 achieved pay equity, and that the OPL was not required to eliminate the wage gap created by the 2005 and 2006 wage adjustments awarded to the City of Ottawa’s Inside/Outside unit. The union’s application takes issue with that part of Mr. Coulen’s Order.

5. The Review Officer also found that the Library Board failed to maintain pay equity with respect to matching economic increases awarded to male comparators since 2008 in the Inside/Outside unit (“the Inside/Outside unit”) with the rates of compensation of female job classes in the OPL’s bargaining unit. The employer takes issue with that conclusion in its application.

The Facts

6. The parties developed an Agreed Statement of Facts (“the ASF”) in preparation for the hearing in these matters on November 18 and 19, 2014. They also supplemented the ASF with oral testimony. Joan Elizabeth Keith, an employee of OPL and a union representative, testified for the union. Monique Desormeaux, OPL’s Division Manager, Corporate Services and Marianne Phillips, the City of Ottawa’s Manager, Planning and Business Solutions in Human Resources, testified for OPL.

7. The ASF reads as follows:¹

THE PARTIES

1. The Ottawa Public Library Board (the “OPL”), is a public sector employer established by statute. It came about as a result of the amalgamation in 2001 of eleven (11) municipalities' predecessor public library boards, pursuant to the City of Ottawa Act, 1999 S.O. 1999, c.14. Sch.E (the “City of Ottawa Act”).

2. While created pursuant to the City of Ottawa Act, the new Ottawa Public Library Board is a separate and distinct employer from the municipality of the City of Ottawa, created by s. 7, rather than s. 2 of that Act, and governed by a separate Board pursuant to the Public Libraries Act, R.S.O. 1990, c. P.44.

3. The predecessor public library boards were also public sector employers who, pursuant to the Pay Equity Act, R.S.O. 1990, c. P-7, were required to achieve pay equity within their workplaces by January 1, 1998. Prior to amalgamation in 2001, each of the constituent libraries had achieved pay equity within their separate organizations.

4. According to the Ottawa Public Library website, it is the largest bilingual (French-English) public library in North America.

5. The OPL now employs approximately 640 employees. The terms and conditions of employment for those employees are governed by a collective agreement between the OPL and CUPE Local 503 Library Group (collectively, “the Parties”).

6. The bargaining unit at the OPL is the equity-seeking unit. This bargaining unit is represented by CUPE Local 503, which also represents separate bargaining units within other employers in the Ottawa area including the Humane Society, Ottawa Community Housing Corporation, Champlain Community Care Access Centre, and the City of Ottawa.

7. CUPE Local 503 Library Group (the “Union”) has represented the library bargaining unit since amalgamation. The Union previously represented the employees of the old City of Ottawa's Public Library and the public library bargaining unit was first certified by the Ontario Labour Relations Board as a distinct bargaining unit in 1995.

8. The majority of the 640 employees in the bargaining unit are women. The bargaining unit currently includes 38 different job classifications.

9. Most of the jobs within the bargaining unit are involved in the direct delivery of library services to the general public through the OPL’s main branch, 32 community branches, two bookmobiles, and two kiosks.

10. All of the jobs within the bargaining unit relate to the delivery of public library services in both a physical and digital environment.

THE ESTABLISHMENT - THE INSIDE/OUTSIDE UNIT OF THE CITY OF OTTAWA

15. As set out in further detail below, the Parties agreed that the City of Ottawa would be the establishment for the purposes of pay equity.

16. The City of Ottawa directly employs some 16,039 employees in thirteen bargaining units and an additional 555 excluded staff (MPE and SAS). The City of Ottawa's 2005 spending included operating expenditures of $1.8 billion and capital expenditures of $511 million.

2005-2008 lnside/Outside Collective Agreement

17. The CUPE Local 503 Inside/Outside bargaining unit (the “Inside/Outside bargaining unit”) includes approximately 6039 employees of the City of Ottawa, in multiple Departments and Branches who work both “outside” and “inside” various municipal buildings and facilities.

18. The Inside/Outside bargaining unit represents employees in the following City Departments: Information Technology Services; Parks, Recreation & Cultural Services; Environmental Services; Emergency & Protective Services; Public Works; Service Ottawa; Community & Social Services; Infrastructure Services; Real Estate Partnership & Development Office; Planning & Growth Management; Corporate Programs & Business Services; Finance; Corporate Communications; City Clerk and Solicitor; Ottawa Public Health; Rail Implementation Office; and the Committee of Adjustment.

19. The bargaining unit includes full-time, part-time, temporary, and casual employees with approximately three-quarters (3/4) of the bargaining unit being continuous full-time employees.

20. The Inside/Outside bargaining unit includes employees working in a number of 24/7 continuous operations such as water filtration treatment, paramedic services, family shelters, long term care, 3-1-1 services, Road Services (November to April only), etc.

21. The Inside/Outside bargaining unit also includes other services or departments that operate at least 16 hours a day, 7 days a week, such as bylaw enforcement, fleet maintenance, facility maintenance, etc.

22. In all, the CUPE Local 503 Inside/Outside collective agreement lists 556 job titles, which are aligned to a multitude of City services.

23. Like the Library bargaining unit, the Inside/Outside bargaining unit, as currently composed, is a bargaining unit that came into being at amalgamation specifically pursuant to an award of the Ontario Labour Relations Board dated January 11, 2001.

24. While the Inside/Outside bargaining unit, in its current form, came into being in 2001, the Ottawa-Carleton Public Employees' Union, CUPE Local 503 has represented municipal employees in Ottawa since 1956. The first collective agreement between the City of Ottawa and the Ottawa Municipal Employees' Association (later the OCPEU) was effective from the mid-1950's. In 1968, the Regional-Municipality of Ottawa-Carleton (RMOC) was created and shortly thereafter, CUPE Local 503 was certified to represent its employees and a collective agreement was signed. While the City of Ottawa and the RMOC bargained separately with CUPE Local 503 at distinct negotiating “tables”, the union executive members were often shared. Consequently, the collective agreements in place in the two municipalities were similar in many respects.

25. Shortly after the OLRB's award dated January 11, 2001, the Union and the City of Ottawa began bargaining for a collective agreement to replace the 13 former collective agreements that had been in place prior to amalgamation. The parties were unable to reach a complete agreement and remitted the outstanding items, which were almost the entire collective agreement, to an interest arbitration panel chaired by Mort Mitchnick.

26. The City of Ottawa and the Inside/Outside unit have longstanding provisions in their collective agreements that there shall be no lockout or strike and that if they are unable to agree on a new collective agreement, any disputes shall be settled by binding interest arbitration.

27. After several months of submissions, hearings, and mediation sessions, the Mitchnick Board issued the 2003-2004 collective agreement as a consent award. That collective agreement closely resembled the agreement that had been in place for the former RMOC just prior to amalgamation.

28. On November 16, 2004, the Inside/Outside unit gave the City of Ottawa notice to bargain. Between January 24, 2005 and December 2006 the parties participated in more than 30 days of negotiations without being able to finalize a complete collective agreement.

29. The items in dispute for the 2005-2008 agreement were remitted to an interest arbitration panel chaired by Chris Albertyn. The Parties agreed to exchange submissions on January 19, 2007; rebuttal briefs on February 12, 2007; and the first day of hearing was held on February 19, 2007.

30. As part of their submissions to the panel, the City of Ottawa and CUPE Local 503 Inside/Outside both argued that the first principle of interest arbitration is that the role of an interest arbitrator is to replicate, as closely as possible, the results that would otherwise have occurred through free collective bargaining.

31. The City of Ottawa also argued that the assessment of wage increases, vis-à-vis replication, could not be done in isolation, but had to be assessed as one part of employees’ overall compensation package, which also included various leaves, premiums and other benefits.

THE PAY EQUITY PROCESS BETWEEN THE OPL AND CUPE, LOCAL 503 LIBRARY GROUP

33. The Union filed the initial Application for Review Services with the Pay Equity Commission on October 7, 2002.

34. On or around November 2002, Review Officer Berenbaum was assigned to assist the Parties in developing a pay equity plan.

35. By MOU signed May 30, 2003, the Parties agreed that the Ottawa Public Library Board was the employer and the City of Ottawa would be the Establishment for the purposes of pay equity.

36. In October 2004, the parties signed a Memorandum of Understanding on the Manual of Maintenance Procedures. This Memorandum sets out the Job Evaluation Program to be used to determine the appropriate gender neutral rating and corresponding pay rate for each job within the Ottawa Public Library, as well as a methodology for how to meet changing job requirements.

37. On February 11, 2005, the Parties signed a Memorandum of Implementation for the Joint Ottawa Public Library Job Evaluation/Pay Equity Program.

38. CUPE Local 503 Inside/Outside collective agreement includes two distinct sets of pay scales: Plan 1 and Plan 2; and all job classifications fall under one of the two plans.

39. Plan 1 is used to classify skilled, semi-skilled, labour and service jobs. The majority of employees under this plan are paid based on an hourly wage rate and perform outdoor work and/or skilled trades. There are approximately 1835 employees working under Plan 1.

40. Plan 2 is used to classify administrative, office/clerical and technical/para-professional jobs. The majority of employees under this plan are salaried employees such as clerks, paramedics, supervisors, and technologists. There are approximately 4204 employees working under Plan 2.

41. The paygrade for each classification listed at Plans 1 and 2 of the collective agreement are determined based on criteria set out in Rating Manuals. There are two Rating Manuals - Manual 1 and Manual 2. Jobs that meet the definition and scope criteria for Plan 1 are assessed using the criteria in Manual 1. Jobs that meet the definition and scope criteria for Plan 2 are assessed using the criteria in Manual 2.

42. As part of the Memorandum of Implementation, the Parties agreed that the job classifications listed in Plan 2 of the main “Inside/Outside” collective agreement were the most appropriate comparators for the purposes of pay equity; and therefore agreed to use Manual 2 for the purposes of Job Evaluation.

43. The Memorandum also stated that once the Job Evaluation process was completed and all library jobs had been placed within the new eighteen (18) pay band pay structure, the Parties would carry out the Pay Equity Process.

44. Throughout 2005 the Parties met with Review Officer Berenbaum to reach a final agreement regarding the gender predominance of specific jobs, and to collect and discuss data on the costs of implementing pay equity for specific jobs.

45. In particular, in the fall of 2005, the OPL and the Union exchanged written proposals, on a without prejudice basis, as part of negotiations towards a Pay Equity Plan; including proposed appropriate step placements within the pay scale and retroactive pay adjustments.

46. On January 10, 2006, after 2 days of in-person discussions mediated by Review Officer Berenbaum, the Parties signed a Pay Equity Plan.

47. The Pay Equity Plan included two appendices, the first sets out the new salary scales for 2005 and 2006; and the second sets out the Retroactivity and Salary Adjustments Formula. Retroactive formulas for lump sum payments were provided for 2002 and 2003. Retroactive payments for 2004 were determined by matching the OPL's pay grades 4 through 17 to the City of Ottawa's Inside/Outside collective agreement's Plan 2 pay grades 4 through 17 and matched to the closest applicable step for that pay grade.

48. The OPL takes the position that the Salary Adjustments Formula with respect to the years 2005 and 2006 was intended to be final, notwithstanding any wage increases the Inside/Outside group might subsequently receive for those years.

49. The Union takes the position that the Salary Adjustments Formula with respect to the years 2005 and 2006 was intended to provide a point-in-time comparator to allow the Parties to immediately implement retroactive payments and left open the possibility of subsequent maintenance adjustments if the Inside/Outside Plan 2 pay rates were subsequently altered.

50. This difference is one of the areas of dispute to be argued before the Tribunal.

51. There are no joint Minutes from the discussions on January 9 and 10, 2006 and neither Party has been able to produce Minutes or detailed notes of the discussions.

52. The Parties did exchange some written proposals as part of their negotiations.

53. The Parties acknowledge that the proposals produced may not be the only proposals that were exchanged in January 2006.

54. The Parties acknowledge that the negotiations on January 9 and 10, 2006 also included separate caucus discussions with Review Officer Berenbaum acting as go-between to try and effect a settlement. The Parties are aware that Review Officer Berenbaum cannot be summoned as a witness in this proceeding without the Tribunal's consent.

55. The Parties disagree as to what was discussed, understood, and agreed to with respect to retroactivity for the years 2005 and 2006 and both Parties anticipate calling viva voce evidence in this regard.

56. The Memorandum of Settlement to which the Pay Equity Plan was attached provided that the Employer representatives would recommend the plan for ratification by the Employer within two months of the signing of the Memorandum. It was also acknowledged that ratification by the Union was not required. Ratification by the OPL occurred in April 2006.

57. As already mentioned above, separate and apart from the Parties' negotiations regarding Pay Equity, the City of Ottawa and the CUPE Local 503 Inside/Outside bargaining unit had been engaged in their own negotiations regarding their 2004-2008 collective agreement and, unable to conclude an agreement, had referred all outstanding issues, including wage increases to interest arbitration.

58. On March 22, 2006, an interim interest arbitration award was issued providing wage increases of 3% for both 2005 and 2006 for the CUPE Local 503 Inside/Outside bargaining unit of the City of Ottawa. The wage increase of 3% applied to the entire job classes within both Plan 1 and Plan 2.

59. On December 18, 2006, a second interim interest arbitration award was released for the Inside/Outside bargaining unit of the City of Ottawa. It awarded a wage increase of 3% for 2007 to all job classes within both Plan 1 and Plan 2.

60. On December 4, 2007, the final interest arbitration award was released for the Inside/Outside bargaining unit of the City of Ottawa. It awarded a wage increase of 3.25% for 2008 to all job classes within both Plan 1 and Plan 2.

61. Whether or not the difference in negotiated and awarded wage increases between the Parties is the result of a difference in bargaining strength is the second area of dispute to be argued before the Tribunal.

62. The issue of maintenance being owed, and the possible applicability of the bargaining strength exception were first raised as areas of dispute between the parties in early 2007.

63. By 2008, having been unable to reach an agreement on the issues of ongoing maintenance and the role of bargaining strength, the Union filed an Application alleging that the OPL had failed to maintain pay equity.

64. On November 3, 2008, Review Officer Berenbaum, who had assisted the Parties in negotiating the Pay Equity Plan, was also assigned to the Union's Application regarding maintenance. Review Officer Berenbaum was assigned to the Application from 2008 to 2011, and after the initial Application and Response, he made several requests for additional submissions from both Parties.

65. Review Officer Coulen took over carriage of the Application from Review Officer Berenbaum on October 19, 2011. Review Officer Coulen released his Order on October 22, 2012.

66. Subsequent to the Order of Review Officer Coulen dated October 22, 2012, the OPL filed an Application requesting that the Tribunal revoke the Order pursuant to section 25(2)(d) of the Act. That Application was assigned Tribunal File #2717-12-PE.

67. The Union filed an Application requesting that the Tribunal vary and amend the Order as it pertained to maintenance in 2005 & 2006 pursuant to section 25(2)(d) of the Act. That Application was assigned Tribunal File #3497-12-PE.

68. The Parties agree that both Applications are appropriately within the Tribunal's jurisdiction.

69. The Memorandum of Settlement reached by the parties on January 10, 2006, including the pay equity plan and Appendices A and B read as follows:

Memorandum of Settlement

Between

The Ottawa Public Library Board

And

The Ottawa-Carleton Public Employee's [sic] Union Local 503, Library Group

Re: Tentative Agreement – Pay Equity Plan

The parties hereby agree to the following:

1. The attached constitutes a pay equity plan between the parties.

2. There is no requirement for the Union to obtain ratification from the membership.

3. The Employer representatives will recommend this pay equity plan to their principals for ratification within two (2) months of the date of this agreement:

4. Following ratification, this plan will be posted in the workplace and employees will be informed of the dates on which they can expect their retroactive payments and adjustments to their salary.

5. Retroactivity will apply to current and previous eligible employees of the bargaining unit in receipt of wages during the retroactive period.

Signed in Ottawa, on January 10, 2006.

PAY EQUITY PLAN

-Between-

The Ottawa Public Library Board (The Employer)

-And-

The Ottawa-Carleton Public Employees Union, Local 503, Library Group

1. The following constitutes a Pay Equity Plan between the parties.

2. The Employer is defined as the Ottawa Public Library Board.

3. The Establishment is defined as the City of Ottawa.

4. The male-dominated job classes used to formulate the pay line are listed in the collective agreement between the Ottawa-Carleton Public Employees' Union, Local 503 Inside Outside (Plan II) and the City of Ottawa.

5. The parties have used a point factor gender-neutral comparison system to evaluate and compare female-dominated job classes to male-dominated job classes. The comparison system rated all job classes using the factors required by the Pay Equity Act, 1993 (as amended) of skill, effort, responsibility and working conditions.

After evaluations, all job classes were grouped into bands of thirty (30) points each. All job classes within the band will be paid within the same salary range.

6. The parties have agreed to use the proportional value method of achieving pay equity. A Pay line has been constructed using the salary scales for the Ottawa-Carleton Public Employees' Union, Local 503 Inside Outside (Plan II), pay grades 4 through 17 inclusive. Effective January 1, 2004 this pay line will be adopted for CUPE, Local 503, Library Group job classes contained in pay grades 4 through 17, inclusive. Job classes in these pay grades will be placed on the salary scale at the step closest to, but not less than, their hourly rate as of January 1, 2004. Employees will progress through the grid as per the Collective Agreement. Pay grades 1, 2, 3 and 18 of the Library pay scales will remain as they are. (See Appendix A for the new salary scales.)

Note: Pay grade 18 will follow the OPL salary scale in order for this plan to comply with the Pay Equity Act, more specifically, Section 9. (1) which reads as follows:

9.(1) Reduction of compensation prohibited – An employer shall not reduce the compensation payable to any employee or reduce the rate of compensation for any position in order to achieve pay equity.

7. The job classes contained in pay grade 3 of the collective agreement between the Union and the Employer are deemed to be gender neutral, and not the subject of comparison.

8. Retroactive payments will be calculated according to an agreed to formula and will be paid for the period January 1, 2002 to December 31, 2003. (See Appendix B)

9. The Employer will endeavour to place employees on the new salary scales within three (3) months of ratification of this pay equity plan. Retroactive payments will be made within one (1) month of placement on the new grid.

10. There are no differences in compensation as permitted by subsections 8(1) and 8(3) of the Act.

Dated on this___day of___, 2006, at the City of Ottawa in Ontario.

Pay Equity Plan – Appendix A

New OPL Salary Scales

Rates of Pay derived from: PG 1-3 and 18 = 2005 OPL AND PG 4-17 = CUPE 2004 + 2.25%

1January 2005

35 hrs/wk

1

2

3

4

5

1

Annual

20,951.84

21,783.58

22,666.28

23,572.64

24,504.48

Bi-weekly

805.84

837.83

871.78

906.64

942.48

Hourly

11.512

11.969

12.454

12.952

13.464

2

Annual

22,387.82

23,277.80

24,220.56

25,192.44

26,186.16

Bi-weekly

861.07

895.30

931.56

968.94

1,007.16

Hourly

12.301

12.790

13.308

13.842

14.388

3

Annual

23,827.44

24,775.66

25,778.48

26,810.42

27,869.66

Bi-weekly

916.44

952.91

991.48

1,031.17

1,071.91

Hourly

13.092

13.613

14.164

14.731

15.313

4

Annual

29,063.58

30,217.46

31,435.04

32,705.40

34,001.24

Bi-weekly

1,117.83

1,162.21

1,209.04

1,257.90

1,307.74

Hourly

15.969

16.603

17.272

17.970

18.682

5

Annual

30,717.96

31,939.18

33,227.74

34,572.72

35,941.36

Bi-weekly

1,181.46

1,228.43

1,277.99

1,329.72

1,382.36

Hourly

16.878

17.549

18.257

18.996

19.748

6

Annual

32,372.34

33,668.18

35,016.80

36,434.58

37,876.02

Bi-weekly

1,245.09

1,294.93

1,346.80

1,401.33

1,456.77

Hourly

17.787

18.499

19.240

20.019

20.811

7

Annual

34,026.72

35,391.72

36,809.50

38,300.08

39,816.14

Bi-weekly

1,308.72

1,361.22

1,473.08

1,473.08

1,531.39

Hourly

18.696

19.446

20.225

21.044

21.877

8

Annual

35,686.56

37,109.80

38,600.38

40,163.76

41,752.62

Bi-weekly

1,372.56

1,427.30

1,484.63

1,544.76

1,605.87

Hourly

19.608

20.390

21.209

22.068

22.941

9

Annual

37,335.48

38,829.70

40,391.26

42,025.62

43,690.92

Bi-weekly

1,435.98

1,493.45

1,553.51

1,616.37

1,680.42

Hourly

20,514

21.335

22.193

23.091

24.006

10

Annual

38,998.96

40,555.06

42,183.96

43,891.12

45,629.22

Bi-weekly

1,499.96

1,559.81

1,622.46

1,688.12

1,754.97

Hourly

21.428

22.283

23.178

24.116

25.071

11

Annual

40,655.16

42,274.96

43,974.84

45,751.16

47,569.34

Bi-weekly

1,563.66

1,625.96

1,691.34

1,759.66

1,829.59

Hourly

22.338

23.228

24.162

25.138

26.137

12

Annual

42,313.18

43,998.50

45,763.90

47,620.30

49,504.00

Bi-weekly

1,627.43

1,692.25

1,760.15

1,831.55

1,904.00

Hourly

23.249

24.175

25.145

26.165

27.200

13

Annual

43,967.56

45,720.22

47,558.42

49,480.34

51,442.30

Bi-weekly

1,691.06

1,758.47

1,829.17

1,903.09

1,978.55

Hourly

24.158

25.121

26.131

27.187

28.265

14

Annual

45,621.94

47,443.76

49,347.48

51,342.20

53,378.78

Bi-weekly

1,754.69

1,824.76

1,897.98

1,974.70

2,053.03

Hourly

25.067

26.068

27.114

28.210

29.329

15

Annual

47,279.96

49,167.30

51,138.36

53,207.70

55,318.90

Bi-weekly

1,818.46

1,891.05

1,966.86

2,046.45

2,127.65

Hourly

25.978

27.015

28.098

29.235

30.395

16

Annual

48,932.52

50,885.38

52,931.06

55,073.20

57,251.74

Bi-weekly

1,882.02

1,957.13

2,035.81

2,118.20

2,201.99

Hourly

26.886

27.959

29.083

30.260

31.457

17

Annual

50,592.36

52,608.92

54,725.58

56,935.06

59,190.04

Bi-weekly

1,945.86

2,023.42

2,104.83

2,189.81

2,276.54

Hourly

27.798

28.906

30.069

31.283

32.522

18

Annual

52,607.10

54,700.10

56,916.86

59,193.68

61,532.38

Bi-weekly

2,023.35

2,103.85

2,189.11

2,276.68

2,366.63

Hourly

28.905

30.055

31.273

32.524

33.809

New OPL Salary Scales

Rates of Pay derived from: NEW 2005 OPL + 2.75%

1 January 2006

35 hrs/wk

1

2

3

4

5

1

Annual

21,528.78

22,382.36

23,288.72

24,220.56

25,177.88

Bi-weekly

828.03

860.86

895.72

931.56

968.38

Hourly

11.829

12.298

12.796

13.308

13.834

2

Annual

23,002.98

23,918.44

24,886.68

25,885.86

26,906.88

Bi-weekly

884.73

919.94

957.18

995.61

1,034.88

Hourly

12.639

13.142

13.674

14.223

14.784

3

Annual

24,482.64

25,456.34

26,488.28

27,547.52

28,635.88

Bi-weekly

941.64

979.09

1,018.78

1,059.52

1,101.38

Hourly

13.452

13.987

14.554

15.136

15.734

4

Annual

29,862.56

31,049.20

32,299.54

33,604.48

34,936.72

Bi-weekly

1,148.56

1,194.20

1,242.29

1,292.48

1,343.72

Hourly

16.408

17.060

17.747

18.464

19.196

5

Annual

31,562.44

32,818.24

34,141.38

35,522.76

36,929.62

Bi-weekly

1,213.94

1,262.24

1,313.13

1,366.26

1,420.37

Hourly

17.342

18.032

18.759

19.518

20.291

6

Annual

33,262.32

34,594.56

35,979.58

37,437.40

38,917.06

Bi-weekly

1,279.32

1,330.56

1,383.83

1,439.90

1,496.81

Hourly

18.276

19.008

19.769

20.570

21.383

7

Annual

34,962.20

36,365.42

37,821.42

39,353.86

40,911.78

Bi-weekly

1,344.70

1,398.67

1,454.67

1,513.61

1,573.53

Hourly

19.210

19.981

20.781

21.623

22.479

8

Annual

36,667.54

38,130.82

39,661.44

41,268.50

42,901.04

Bi-weekly

1,410.29

1,466.57

1,525.44

1,587.25

1,650.04

Hourly

20.147

20.951

21.792

22.675

23.572

9

Annual

38,361.96

39,898.04

41,501.46

43,181.32

44,892.12

Bi-weekly

1,475.46

1,534.54

1,596.21

1,660.82

1,726.62

Hourly

21.078

21.922

22.803

23.726

24.666

10

Annual

40,070.94

41,670.72

43,343.30

45,097.78

46,883.20

Bi-weekly

1,541.19

1,602.72

1,667.05

1,734.53

1,803.20

Hourly

22.017

22.896

23.815

24.779

25.760

11

Annual

41,772.64

43,437.94

45,183.32

47,008.78

48,877.92

Bi-weekly

1,606.64

1,670.69

1,737.82

1,808.03

1,879.92

Hourly

22.952

23.867

24.826

25.829

26.856

12

Annual

43,476.16

45,208.80

47,021.52

48,930.70

50,865.36

Bi-weekly

1,672.16

1,738.80

1,808.52

1,881.95

1,956.36

Hourly

23.888

24.840

25.836

26.885

27.948

13

Annual

45,176.04

46,977.84

48,867.00

50,841.70

52,856.44

Bi-weekly

1,737.54

1,806.84

1,879.50

1,955.45

2,032.94

Hourly

24.822

25.812

26.850

27.935

29.042

14

Annual

46,875.92

48,748.70

50,705.20

52,754.52

54,847.52

Bi-weekly

1,802.92

1,874.95

1,950.20

2,029.02

2,109.52

Hourly

25.756

26.785

27.860

28.986

30.136

15

Annual

48,579.44

50,519.56

52,545.22

54,670.98

56,840.42

Bi-weekly

1,868.44

1,943.06

2,020.97

2,102.73

2,186.17

Hourly

26.692

27.758

28.871

30.039

31.231

16

Annual

50,277.50

52,284.96

54,387.06

56,587.44

58,826.04

Bi-weekly

1,933.75

2,010.96

2,091.81

2,176.44

2,262.54

Hourly

27.625

28.728

29.883

31.092

32.322

17

Annual

51,982.84

54,055.82

56,230.72

58,500.26

60,817.12

Bi-weekly

1,999.34

2,079.07

2,162.72

2,250.01

2,339.12

Hourly

28.562

29.701

30.896

32.143

33.416

18

Annual

54,054.00

56,205.24

58,482.06

60,820.76

63,224.98

Bi-weekly

2,079.00

2,161.74

2,249.31

2,339.26

2,431.73

Hourly

29.700

30.882

32.133

33.418

34.739

APPENDIX B

PAY EQUITY – OTTAWA PUBUC LIBRARY

PAY EQUITY PLAN RETROACTIVITY AND SALARY ADJUSTMENTS FORMULA

Assumption: This Pay Equity exercise is post Job Evaluation.

2002

For pay grades 4 to 17, retroactivity to be calculated based on the percent differential between the Ottawa-Carleton Public Employee's [sic] Union Local 503, Library Group (OPL) maximum and the Ottawa-Carleton Public Employee's [sic] Union Local 503, Inside Outside (CUPE) Plan 2 step which is “nearest to but not less than” the OPL maximum (January 1, 2002 rates).

Retroactive payments for 2002 will be calculated by applying the % differential as established above to the employee's T4 and T4A earnings.

In case of “negative” retroactivity, there will be no recuperation of monies “owing”.

2003

For pay grades 4 to 14, retroactivity to be calculated based on the percent differential between the OPL maximum and CUPE step 3 (January 1, 2003 rates).

For pay grades 15 to 17, retroactivity to be calculated based on the percent differential between the OPL maximum job rate and the CUPE Plan 2 step which is “nearest to but not less than” the OPL maximum. (January 1, 2003 rates)

Retroactive payments for 2003 will be calculated by applying the % differential as established above to the employee’s T4 and T4A earnings.

In case of “negative” retroactivity, there will be no recuperation of monies “owing”.

January 1^st 2004

For pay grades 4 to 17, placement on CUPE Plan 2 January 1^st, 2004 rates at step nearest to but not less than employee's salary as of January 1^st, 2004.

January 1, 2004 Onwards

Payroll to recreate history and employees will receive the differential owing (e.g. for step progression, employees will receive the differential between what they have actually received and what the pay equity adjustment will give them.)

In recreating history, economic increases for years 2005 and 2006 will be based on negotiated increases for OPL (2005 = 2.25% and 2006 = 2.75%).

In case of “negative” retroactivity, there will be no recuperation of monies “owing”.

Letter of Understanding

Between

The Ottawa Public Library Board

And

The Ottawa-Carleton Public Employee's [sic] Union Local 503, Library Group

Re: Pay Equity Plan – Pay Grade 18

With respect to pay grade 18, the parties agree to the following:

1. Should the Ottawa-Carleton Public Employees Union, Local 503, Library Group make an argument before the Pay Equity Hearings Tribunal pertaining to bargaining strength (Subsection 8.(2) of the Pay Equity Act) and win this argument, the Employer will revise the OPL salary range to match the CUPE salary range. The effective date of the revision will be the same as that of the bargaining strength decision.

OR

2. Should the Union file a request with the Employer for parity in economic increases with the Ottawa-Carleton Public Employee's [sic] Union Local 503, Inside Outside bargaining unit and should the Employer agree with this request without recourse to a hearing before the Pay Equity Hearings Tribunal, such agreement shall also apply to pay grade 18.

Signed in Ottawa, on________________­­­­______, 2006

9. The additional oral testimony established the following further facts.

10. Although the City and the OPL are separate employers, there is a symbiotic relationship between the two entities. The City’s elected Council appoints the members of the Ottawa Public Library Board (which includes six City Councillors), provides approximately 98 per cent of the OPL’s funding, and determines the amount of the OPL’s annual budget allocation. Since amalgamation in 2001, the City and the OPL operate on a “shared services” model whereby the City provides certain services (financial, human resources, labour relations, legal, information technology and so forth) to the OPL pursuant to annually negotiated service level agreements. This is manifested, for example, by the presence and assistance of City labour relations consultants during the OPL’s collective bargaining.

11. The bargaining mandates of the OPL and the City are arrived at through different processes. City Council determines the parameters of total compensation within which the City’s negotiating team is permitted to operate in its bargaining with the union. At the OPL, however, the maximum amount of any cost of living adjustments that OPL is prepared to pay is determined after the OPL negotiating team has developed and costed its proposals for a new collective agreement. Whatever wage adjustments flow from the collective bargaining with the union are borne by and must be found within the OPL’s budget allocation.

12. In 2007, the wage increase negotiated by the union and OPL was 3 per cent, mirroring the percentage increase awarded through interest arbitration to the City’s Inside/Outside unit. The percentage wage increases for the two units in 2010, 2011 and 2012 were identical. The OPL bargaining unit’s wage increase in 2013 was 1.93 per cent, just slightly more than the 1.91 per cent increase for the employees in the Inside/Outside unit.

13. The interest arbitration clause in the collective agreement covering the Inside/Outside unit gives to either party the option of referring outstanding collective bargaining issues that have not been resolved by January 31 following notice to bargain. Although the City and the union were able to reach agreement on a number of issues in the first two rounds of post-amalgamation bargaining, they resorted to interest arbitration on the outstanding issues (including wages) in each round.

14. The interest arbitration clause in the Inside/Outside collective agreement originated in a pre-amalgamation collective agreement applicable to the Regional Municipality of Ottawa-Carleton. Some (including the City) but not all of the first-tier municipalities in the then Region of Ottawa-Carleton had interest arbitration clauses in their collective agreements. In the course of the first round of post-amalgamation collective bargaining between the City and the union regarding the terms and conditions of the Inside/Outside unit, the City gave some consideration to tabling a proposal to remove the interest arbitration clause. However, it decided against pursuing that proposal with the union.

15. In the course of the second round of post-amalgamation bargaining, the union proposed to OPL the inclusion of an interest arbitration clause to resolve bargaining impasse. The OPL resisted that proposal, and the union ultimately dropped it. Thus, a collective bargaining impasse between the union and the OPL may only be resolved by a strike or lock-out. There have been no strikes or lockouts at the OPL, but on one occasion, the union obtained a mandate for a strike pursuant to a vote of its bargaining unit members.

16. Both Ms. Desormeaux and Ms. Phillips shared the view that interest arbitration results in, or is perceived to result in, higher costs than the strike/lockout model of collective bargaining. Ms. Phillips acknowledged, however, that there is a benefit that accrues as well in the interest arbitration model to the City: continuation of City services without a labour disruption.

17. Ms. Phillips testified that the Inside/Outside collective agreement is perceived as a leading collective agreement, and that other labour relations parties make comparisons with its terms and conditions.

18. Ms. Phillips also testified that in the bargaining between the City and the union that preceded the 2004-2008 Inside/Outside collective agreement, the City obtained a few “clawbacks” in terms of the application of sick leave accrual and frozen sick leave banks. In the bargaining preceding the 2009-2011 collective agreement, the City was able to obtain significant control over costs associated with “harmonization growth”, among other desired outcomes.

19. One of the more critical pieces of evidence that emerged from some of the documents submitted with the ASF, as well as the oral testimony of Ms. Desormeaux, concerned the sequence of events immediately preceding the signing of the pay equity plan in January 2006. The OPL and union negotiating teams were engaged in bargaining the terms and conditions of the pay equity plan on January 9 and 10, with the assistance of a Review Officer, Fred Berenbaum, from the Pay Equity Commission. Generally speaking, the negotiating teams dealt with each other on those days indirectly, with Mr. Berenbaum conveying proposals and shuttling back and forth between the parties.

20. On January 9, the union negotiating team, consisting of several individuals including Ms. Keith and the then Local President, Jim Robillard, had before it a proposal by OPL which included the following language under the heading, “Achievement of Pay Equity”:

The parties recognize that the implementation of this Pay Equity Plan will meet all requirements of Bill 154, Pay Equity legislation.

21. The union responded to the above language with the following proposal, also under the heading, “Achievement of Pay Equity”:

The parties agree that with this plan, pay equity will have been achieved. Furthermore, the parties agree to maintain pay equity as required by the Pay Equity Act.

22. According to Ms. Desormeaux’s testimony, on January 10, prior to the execution of the pay equity plan, she, Mr. Robillard and Mr. Berenbaum (and perhaps others on the OPL negotiating team) had a conversation in which they discussed the implications on the pay equity plan of any wage adjustments that might apply in a new Inside/Outside collective agreement between the union and the City. Ms. Desormeaux made it clear to Mr. Robillard that OPL’s position was that the union should not expect a “me too” deal in the event of a wage gap occasioned by the outcome in the collective bargaining process involving the Inside/Outside bargaining unit. Mr. Berenbaum warned Ms. Desormeaux that there was a risk of a pay equity complaint to the Tribunal in the event that such a wage gap emerged. Ms. Desormeaux did not change her position. Mr. Robillard said, at some point, “I’m willing to take my chances.” Sometime following that conversation, the parties signed the pay equity plan, which we note does not contain any language asserting that pay equity has been achieved or any language concerning pay equity maintenance obligations. What the pay equity plan does include, however, in paragraph 10, is the following language:

There are no differences in compensation as permitted by subsections 8(1) and 8(3) of the Act.

23. Clearly, not having identified the “bargaining power” exemption in subsection 8(2) of the Act in paragraph 10 of the pay equity plan, the parties knew that the extent, if any, of its application remained a live issue. There was no ambiguity at the time the parties signed the pay equity plan that the OPL reserved the right to argue at a later date, if necessary, that any subsequent wage gap created between the OPL female job classes and their City counterparts was permitted by the subsection 8(2) exemption.

Position of the employer

24. In grounding its argument concerning the bargaining strength exemption in subsection 8(2) of the Act, the OPL places substantial significance on the dual role played by Mr. Robillard in both the pay equity negotiations with the OPL and the collective bargaining with the City. Counsel submits that Mr. Robillard was uniquely placed to know what was happening in both sets of negotiations. Moreover, he was the union President at the time that the union and the OPL reached a settlement of the collective agreement that resulted in wage increases for the OPL employees of 2.25 per cent for 2005 and 2.75 per cent for 2006; as compared to the 3 per cent increases for the same years that were achieved through the consent orders of the interest arbitration board following interim agreements reached between the City and the union negotiating teams (including Mr. Robillard as a member of the latter) in ongoing collective bargaining.

25. The OPL contends that “bargaining strength” in subsection 8(2) of the Act refers to a bargaining unit’s ability to exert pressure on an employer to obtain enhanced terms of employment, and that that ability is derived from the bargaining unit’s character and composition, as well as the nature of the services performed by the bargaining unit employees. In this regard, the OPL says that, relative to the OPL bargaining unit, the City’s Inside/Outside unit is vastly larger, vastly more diverse, and performs a variety of services that, unlike the OPL, directly affect the health and safety of the residents of, and visitors to, the City of Ottawa. These are services that the City has an obligation to provide continuously without disruption. Accordingly, the Inside/Outside unit has greater bargaining leverage with the City than the OPL unit has with OPL. This, counsel argues, is manifest in two ways. First, the Inside/Outside unit, with Mr. Robillard’s assistance, was more able than the OPL unit, despite Mr. Robillard’s presence in the corresponding set of collective bargaining negotiations with the OPL, to extract greater wage increases in the collective bargaining process in 2005, 2006 and 2008. Secondly, the Inside/Outside unit’s collective agreement contained an interest arbitration clause, whereas there was no corresponding provision in the collective agreement between the union and OPL, and the OPL unit attempted to but failed to gain such a clause in its second round of collective bargaining with the OPL. Counsel submitted that the better wage increases and the existence of the interest arbitration clause were themselves evidence of the Inside/Outside unit’s superior bargaining strength.

Position of the applicant

26. Counsel for the applicant stressed the importance of the oral evidence concerning the discussion between Ms. Desormeaux, Mr. Robillard and Mr. Berenbaum on January 10, 2006. What that evidence demonstrated was that the parties were entirely aware of the differences between them concerning the effect of the then unresolved collective bargaining between the union and the City over the terms and conditions of the Inside/Outside unit. Ms. Desormeaux perceived that the union wanted to tie potentially further pay equity adjustments to the outcome in the bargaining between the City and the union. She also heard Mr. Berenbaum raise the possibility that that issue might be the subject of a future complaint to the Tribunal. She signalled that the employer would resist such a complaint. Mr. Robillard in turn signalled that the union was prepared to take its chances with the Tribunal, if necessary. The pay equity plan was then executed. It is therefore, clear, says the union, that there was no agreement by the parties to place a cap on retroactive pay equity adjustments, just as there was no agreement by the parties concerning the application of subsection 8(2) of the Act.

27. With respect to subsection 8(2) of the Act, the union contends that the employer simply did not satisfy its burden to prove that the wage gap created by the interest arbitration awards was due to superior bargaining strength by the Inside/Outside unit, as opposed to some other factor or factors, such as, for example, concessions made by the union to the City. Moreover, the union submits, the employer led no evidence, apart from the opinion of Ms. Phillips concerning the perception of the Inside/Outside collective agreement in the eyes of the labour relations community, to demonstrate that the differences between the two bargaining units in terms of their size, composition and services performed are the reason that, on some but not all occasions, City employees got higher wages than the OPL employees. Nor did the employer prove that mere differences in the wage increases obtained is necessarily in and of itself indicative of superior bargaining strength, given that the terms and conditions of collective agreements go well beyond the issue of wages.

Analysis and Conclusions

28. The first question for determination (as set out in paragraphs 48 and 49 of the ASF) is whether or not the Salary Adjustments Formula in Appendix B to the pay equity plan with respect to the years 2005 and 2006 was intended to be final, notwithstanding any wage increases the Inside/Outside unit might receive for those years, as contended by the OPL; or rather, as contended by the union, that it was intended to provide a point-in-time comparator to allow the parties to immediately implement retroactive payments and left open the possibility of subsequent maintenance adjustments if the Inside/Outside Plan 2 rates were subsequently altered. The union bears the onus to prove its position on that issue.

29. The second question to be determined is whether or not the difference in the negotiated and awarded wage increases between the two bargaining units is the result of a difference in bargaining strength. The OPL bears the onus of proving the affirmative.

30. The provisions of the Act relevant to the determination of this matter are:

31. (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(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.

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).

8. (1) This Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of,

(a) a formal seniority system that does not discriminate on the basis of gender;

(b) a temporary employee training or development assignment that is equally available to male and female employees and that leads to career advancement for those involved in the program;

(c) a merit compensation plan that is based on formal performance ratings and that has been brought to the attention of the employees and that does not discriminate on the basis of gender;

(d) the personnel practice known as red-circling, where, based on a gender-neutral re-evaluation process, the value of a position has been down-graded and the compensation of the incumbent employee has been frozen or his or her increases in compensation have been curtailed until the compensation for the down-graded position is equivalent to or greater than the compensation payable to the incumbent; or

(e) a skills shortage that is causing a temporary inflation in compensation because the employer is encountering difficulties in recruiting employees with the requisite skills for positions in the job class.

(2) After pay equity has been achieved in an establishment, this Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of differences in bargaining strength.

31. We begin with the rather obvious observation that the purpose of the Act is to redress systemic gender discrimination in compensation for work performed by female job classes (ss. 4(1)). That was the exercise in which the parties were engaged when they entered into their agreement on January 10, 2006. They were attempting to achieve pay equity by eliminating the compensation gap between the job rates of female job classes and those of the identified male job classes in the establishment. Had the wages of the male job classes not outstripped those of the female job classes soon after the agreement was reached, there probably would be little or no debate that the parties achieved pay equity on January 10, 2006.

32. In our view, pay equity has not yet been fully achieved because not all of the adjustments contemplated under the pay equity plan have been implemented. We note first of all that the pay equity plan negotiated by the parties contains in Appendix A salary scales for the years 2005 and 2006. Secondly, this pay equity plan has retroactive application in respect of wages dating back to 2002, as set out in Appendix B of the pay equity plan. Appendix B explains specifically how retroactivity on wages will be calculated for each of 2002, 2003 and 2004. Interestingly, the last heading in Appendix B is, “January 1, 2004 Onwards”. When the parties agreed on January 10, 2006 to the language under that heading, they had no other reference point beyond 2004 on which to anchor the OPL female job class wages to the corresponding male job classes in the Inside/Outside unit. All they knew at that point was that the OPL unit had obtained economic increases in 2005 and 2006, and that the collective bargaining between the City and the union applicable to those same two years (and beyond) had not concluded. The wage picture for 2005 and 2006 for the Inside/Outside unit was unknown. Accordingly, under the heading “January 1, 2004 Onwards”, the parties wrote that “economic increases for years 2005 and 2006 will be based on negotiated increases for OPL (2005 = 2.25% and 2006 = 2.75%).” Had the parties intended to impose a final ceiling on pay equity adjustments, as argued by the OPL, words such as “limited to” or “restricted by” should have been inserted in place of “based on”. A plain reading of the language suggests that its purpose was not to establish a once-and-for-all cap on the pay equity adjustments, but rather to make clear to OPL employees that after 2004, should there be any further retroactive adjustments, they would be calculated by reference to the new 2004 wage scale inclusive of the “negotiated increases” that had been obtained in collective bargaining between the union and OPL for 2005 and 2006. But the fact of the matter is that OPL has not implemented those further retroactive adjustments to which the OPL female job classes are entitled as a result of the arbitration award to the Inside/Outside unit applicable to 2005 and 2006. Accordingly, how can it be said that pay equity has been achieved in accordance with section 5.1 of the Act?

33. The second reason for arriving at our conclusion that pay equity was not achieved by the parties is because they did not expressly agree in their Memorandum of Settlement or in the pay equity plan itself that they had achieved pay equity, or that pay equity would be achieved by a certain date. That is not to say that, generally, an express agreement concerning the achievement of pay equity must be included in a pay equity plan. However, its absence in this case is significant because of what happened before the pay equity plan was executed. In that regard, there had been a previous proposal by the OPL to include language in the pay equity plan under the heading, “Achievement of Pay Equity” acknowledging that the implementation of the pay equity plan “will meet all requirements of Bill 154, Pay Equity legislation.” That proposal never made its way into the settlement, nor did the union’s counterproposal. Nor did the parties expressly agree that the pay equity wage adjustments or the retroactive payments identified in the pay equity plan were capped as of the date of their settlement. Had that been their intention, it would have been a relatively simple matter to include language to that effect.

34. Given that the collective bargaining at the City was not then complete, the parties had little choice but to assume that the Inside/Outside unit’s wages would rise by the same percentages negotiated by the OPL and make their agreement, or wait until the actual outcome for the Inside/Outside unit was made public. Understandably, given the very long process that the parties had engaged in to complete the pay equity process, the union wished to see some tangible benefits for the OPL employees sooner than later. So, to parse Mr. Robillard, the union struck a deal and took its chances that, if necessary, it could make a claim for further pay equity adjustments under the Act, knowing full well that the employer would mount a defense under subsection 8(2). In our view, that was a reasonable and practical option for the union to have taken. It was not an implied acknowledgement by Mr. Robillard or the union that it accepted the employer’s position that no further pay equity adjustments were payable to the OPL female job classes under the pay equity plan. Accordingly, although almost all of the necessary steps were taken by the parties to achieve pay equity, pay equity could not and consequently was not fully achieved until such time as the 2005 and 2006 adjustments occasioned by the larger percentage increase awarded to the City’s Inside/Outside unit were applied to the female job classes in the OPL.

35. Accordingly, on the first issue for determination, we conclude that the Salary Adjustments Formula with respect to the years 2005 and 2006 was intended to provide a point-in-time comparator to allow the parties to immediately implement retroactive payments and left open the possibility of subsequent maintenance adjustments if the Inside/Outside Plan 2 pay rates were subsequently altered.

36. We now turn next to the issue concerning bargaining strength.

37. The Tribunal has rarely been called upon to deal with subsection 8(2) of the Act. Indeed, the only two decisions referred to by the parties in the course of the hearing were Stevenson Memorial Hospital 2000 Can LII 22419 (ON PEHT) and Ongwanada 2001 Can LII 28100 (ON PEHT). We are aware of one other: York Region Board of Education, [1995] O.P.E.D. No. 33, in which the Tribunal determined that the York Region Board of Education (“the Board”) was not entitled to rely upon subsection 8(2) in circumstances where it had not yet posted a pay equity plan for one of five employee groups within its establishment. The Tribunal reasoned that, in the absence of the one remaining posted pay equity plan, the Board had not achieved pay equity, which is a precondition to the application of subsection 8(2). We have also found that pay equity has not been achieved in this case, albeit for different reasons. Therefore, arguably the OPL is precluded from relying upon subsection 8(2). However, since the issue was not framed by the parties in this manner, we go on to address the OPL’s position on superior bargaining strength below.

38. In the Ongwanada decision, the Tribunal only determined that the employer was not precluded from relying on the subsection, as argued by the trade union in its prima facie motion to dismiss the employer’s application. That decision is not of assistance in these matters.

39. The Stevenson decision is also distinguishable on its facts. In that case, a wage gap between a female job class and its male comparator in the same bargaining unit emerged following an interest arbitration award that provided the male job class a substantially higher percentage wage increase than the female job class. The Tribunal determined that the subsection 8(2) exemption does not apply in circumstances where the wage gap occurs between job classes in the same bargaining unit. That is not the situation here.

40. Having said that, the Tribunal in Stevenson made some other observations about subsection 8(2) that guide us (and were not challenged by either the OPL or the union) in these matters, including the following:

• subsection 8(2) is to be interpreted in a manner consistent with the overall purpose of the Act to redress gender discrimination in compensation;

• as an exception in an anti-discrimination statute, subsection 8(2) is to be narrowly construed; and

• the exception in subsection 8(2) is to be considered in the context of the statutory entitlement scheme, including the requirements under section 7 to maintain those entitlements.

41. With these principles in mind, we address the substance of OPL’s claim that it is exempt from having to match the City wage increases obtained by the union via the interest arbitration process because of its superior bargaining strength vis-à-vis the City. Clearly, OPL has the burden to prove superior bargaining strength (or to put it another way, to prove, by comparison, that the union had inferior bargaining strength in relation to the OPL). The evidence offered by the OPL in that regard is that, as compared to the OPL unit, the Inside/Outside unit is bigger (in the sense that it contains far more employees), more diverse in jobs and services, and has a greater impact on the health and safety of the citizens of and visitors to the City of Ottawa. Moreover, the OPL relies on the fact that the collective agreement covering the Inside/Outside unit has an interest arbitration clause whereas the collective agreement applicable to the OPL unit does not.

42. In our view, these facts, in and of themselves, do not prove on a balance of probabilities that the emerging wage difference between the male comparators in the Inside/Outside unit and the corresponding female job classes in the OPL are “the result of differences in bargaining strength” between the two bargaining units, and not the result of other possible factors. For example, we cannot rule out the possibility that a contributing factor to the union’s ability to achieve higher percentage increases for the City employees in 2005 and 2006 was the gains that Ms. Phillips contends the City obtained in the collective bargaining process with the union. On the other hand, what, if any, gains or concessions were made by the union and/or the OPL in the course of their bargaining over the same period? The point is, we do not have the evidence to arrive at the conclusion the OPL seeks. We do not have sufficient, detailed evidence before us that permits a comparison between the bargaining in City negotiations and the bargaining in the OPL negotiations, which in turn might assist in the determination of what most likely caused the City employees to gain higher wage increases than the OPL employees in some of the years of their collective agreements since amalgamation. That, in turn, would assist the determination as to whether the wage gap is “the result of differences in bargaining strength”, and not the result of any other factors. It is simply not enough in order to claim the benefit of the subsection 8(2) exemption, which is to be narrowly construed and interpreted with regard to the overall purpose of the Act as well as its requirements regarding maintenance of pay equity, to make mere comparisons between the size, diversity and perceptions concerning bargaining units.

43. Furthermore, the OPL’s argument concerning the fact that the City has recourse to interest arbitration is also not in and of itself sufficient proof of a difference in bargaining strength, given that: (a) the existence of the interest arbitration clause negates any real possibility of the cessation of City services as a result of the union’s withdrawal of labour, and (b) the City, as well as the union, benefits by a resolution of bargaining impasse without the need to engage in a strike or lockout. The mere presence of an interest arbitration clause in one collective agreement and its absence in another is not proof, without more, of a difference in bargaining strength between the respective bargaining units.

44. The OPL has not met the burden to demonstrate on a balance of probabilities that the differences in wages achieved by the union in 2005, 2006 and 2008 for the Inside/Outside unit as compared to the OPL unit over the same period was due to a differences in bargaining strength. For these reasons, even assuming that the OPL was not precluded from relying upon subsection 8(2), the answer to the second issue raised in these proceedings is that subsection 8(2) does not apply in this case.

Disposition and Orders

45. The application in Board File No. 2717-12-PE is dismissed.

46. The application in Board File No. 3497-12-PE is granted.

47. We order the OPL to:

i. pay the female job classes identified in the pay equity plan the same corresponding percentage wage increases that were awarded by the board of arbitration to the Inside/Outside bargaining unit for the years 2005, 2006 and 2008;

ii. provide the union with a list of all the current and former employees in the OPL unit, their addresses, and the calculations of their total pay equity adjustments for each of the periods covered in paragraph (i) above; and

iii. comply with subparagraphs (i) and (ii) above within 90 days of the date of this decision.

Dated at Toronto, Ontario this 3rd day of February, 2015.

"Patrick Kelly" Patrick Kelly, Vice-Chair

"Carla Zabek" Carla Zabek, Member

"Carol Phillips" Carol Phillips, Member

Footnotes

1. 1We have deleted paragraphs 6 through 9, which identify the collective agreements between the OPL and the union; paragraphs 28 and 61 through 63 which identify the collective agreements between the City and the union; as well as all references to the joint exhibits filed with the ASF, none of which except Joint Exhibit 9 containing the pay equity plan are reproduced in this decision.