Court File and Parties
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, Alternate Chair, Carol Phillips and Carla Zabek, Members
DECISION OF THE TRIBUNAL: December 18, 2015
Decision
These are applications under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended.
A final decision (“the Decision”) on the merits in these matters issued on February 3, 2015. On or about July 6, 2015 counsel for Ottawa-Carleton Public Employees’ Union (CUPE), Local 503 (“Local 503) advised that Ottawa Public Library Board (“OPL”) has not paid any pay equity adjustments to individuals in eight job classes within the 90-day period stipulated in paragraph 47(iii) of the Decision, on the basis that those job classes are not female job classes in the parties’ 2006 pay equity plan. Counsel requested that, pursuant to the reconsideration power under subsection 30(2), the Tribunal clarify that the intent of the orders set out in paragraph 47 of the Decision. Counsel submitted that such clarification is required because Local 503 intends to seek enforcement of the Decision. Counsel contended that the clarification is necessary to enable such enforcement. Ottawa Public Library Board (“the OPL”) opposes Local 503’s request.
The Alternate Chair of the Tribunal directed the Registrar to schedule a teleconference with counsel for the parties for the purpose of exploring whether or not it is appropriate to hear the merits of the request for reconsideration in a subsequent teleconference, thereby saving the parties and the Board the time and cost associated with attendance at an oral hearing. That teleconference took place on September 17, 2015. It became apparent in the course of the teleconference that further consultation between counsel for the parties was required. It was agreed that that would take place and that the Tribunal would be advised of the results of their consultation by September 22, 2015. The Tribunal did not, however, receive any further communication.
The Tribunal is now in receipt of correspondence dated December 15, 2015 from counsel for Local 503. The portions of the letter relevant for purposes of this decision read as follows:
The Union respectfully submits that enforcement of the Tribunal's Order can be achieved by ordering the Library to produce the records of pay equity payments made in 2006 and the job classes to which they were paid and, after confirming that all job classes other than Page were treated as female, issuing an Order confirming that all job classes other than Page are entitled to maintenance as set out in the Tribunal's Order of February 3, 2015 and are to be paid out immediately, with interest retroactive to February 3, 2015.
Should the Tribunal determine that it needs to hear evidence, beyond payroll records, with respect to how all of the job classes were assessed, the Union respectfully submits that the Library should proceed first and bears the onus of proving that a gender neutral job evaluation and pay equity plan were both undertaken without determining the gender of job classes. The Union anticipates calling voluminous rebuttal evidence, both viva voce and documentary evidence, to show that the gender of job classes was negotiated and agreed to, with the assistance of the Review Officer, prior to the completion of the pay equity plan, and as required by the Act; and that the library's own actions in making pay equity payments to all job classes other than Page confirm same.
Given the months of delays in implementation that have already resulted from the Library’s failure to respond to the Tribunal's requests for information in a timely manner, the Union requests that, if the Tribunal determines that it cannot dispense of this matter based solely on past payroll records of pay equity payments, that this matter be scheduled for hearing in Ottawa at the earliest possible opportunity.
Given the novelty of the Library’s position we would also ask that the Library be directed to provide to the Union and the Tribunal, in advance of the hearing, full particulars of their position and production of any documents upon which they are relying.
It appears to us that the payroll information sought by Local 503 is arguably relevant to the issue it raises in its request for reconsideration/clarification of the Decision. Furthermore, it may well be that, once the OPL produces those documents, the questions raised by Local 503 could be dealt with by way of written submissions, with Local 503 first providing its submissions after reviewing the documents, OPL providing submissions in response, and Local 503 having a further opportunity to make reply submissions.
If the parties are content to proceed in the fashion described in the preceding paragraph, counsel are to consult with one another concerning the time frame for the document production and the exchange of written submissions, and advise the Tribunal accordingly. Any difficulties in establishing that time frame may be referred to the Tribunal for a determination.
If either of the parties objects to the manner of proceeding describe in paragraph 6 above, they must file their written reasons on or before December 24, 2015.
Dated at Toronto, Ontario this 18th day of December, 2015.
“Patrick Kelly” Patrick Kelly, Alternate Chair
“Carol Phillips”
Carol Phillips, Member
“Carla Zabek”
Carla Zabek, Member