PEHT Case No: 0493-15-PE

Corporation of the City of Windsor, Applicant v Shirley D. Moor, and Canadian Union of Public Employees, Local 543, Respondents

BEFORE: Roslyn McGilvery, Vice-Chair, and Members Carla Zabek and Carol Phillips

APPEARANCES: Anna M. Vannelli, Vincenza Mihalo, Valerie Critchley and Jolayn Susko appearing for the applicant; Shirley D. Moor and John W. Moor appearing for Shirley D. Moor; Paul O’Ryan, Mark Vander Voort, David Patten, Catherine Barrett, Steve Kennedy appearing for Canadian Union of Public Employees, Local 543

DECISION OF THE TRIBUNAL: April 11, 2017

1. This is an application filed pursuant to subsection 24(6) of the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (the “Act”).

OVERVIEW

2. Shirley D. Moor filed a complaint alleging that the City of Windsor (the “Employer”) and the Canadian Union of Public Employees, Local 543 (the “Union”) violated section 7 of the Act by agreeing to reduce her wages for a two-year period below the pay equity job rate that she had previously achieved.

3. By Order dated April 27, 2015 (the “Order”), Review Officer Alison Limerick found that the Employer violated subsections 7(1) and 7(2) of the Act and that the Union violated subsection 7(2) of the Act. The Review Officer ordered the Employer to pay Ms. Moor wage adjustments.

4. The Employer argues that the Tribunal should revoke the Order and that if it is not revoked, the Union should be ordered to contribute to any amounts owed.

5. The Union takes no position on whether the Order should be revoked but maintains that if any amount is found to be owing to Ms. Moor, the Union should not be directed to contribute.

6. Ms. Moor maintains that the Order should be confirmed and that the Union should not be responsible for paying any of the amounts that may be found owing to her.

7. We find that the Union and Employer have violated section 7 of the Act.

PRIMA FACIE MOTION

8. The Employer is challenging the Review Officer’s Order pursuant to subsection 24(6) of the Act, which provides: “An employer or bargaining agent named in an order under this section may request a hearing before the Hearings Tribunal with respect to the order…” The Employer as the applicant has filed a prima facie motion. It alleges that Ms. Moor’s complaint does not raise a prima facie case. Prior to the hearing of this matter on the merits, we dismissed the Employer’s prima facie motion. The Employer has requested that we provide our reasons, which are as follows.

9. In Peterborough (City) v. Peterborough Professional Fire Fighters’ Assn., Local 519, [1991] O.P.E.D. No. 35 (QL) (March 21, 1991), the Tribunal described the analytical framework to be applied on a prima facie motion at paragraph 6:

6 On a motion for dismissal on the basis of failure to make out a prima facie case, a tribunal must decide whether the applicant has made out a case on the face of the written material filed as the application. For this purpose, the applicant is permitted to make its best case by treating everything it has alleged as if it were true. A failure to establish a prima facie case means that even if the applicant could prove all its allegations, the tribunal could do nothing for it because the facts alleged do not constitute a violation of the relevant statute. If the applicant's best case does not provide the basis for a remedy, the application is dismissed; if it would provide a basis for a remedy, however, the assumption of truth is forgotten: the case proceeds to permit the applicant to prove its allegations and the respondent to respond to them.

10. We are not aware of any instance in which an applicant has filed a prima facie motion against a responding party. This is because in a subsection 24(6) application, the applicant is the one that must convince the Tribunal to revoke the relevant order pursuant to subsection 25(2)(d) of the Act. Consequently, there is no prima facie case for a responding party to meet in such an application. As such, the Employer’s prima facie motion fails.

THE MERITS

RELEVANT STATUTORY PROVISIONS

Definitions

1. (1) In this Act,

“job class” means those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates;

“job rate” means the highest rate of compensation for a job class;

Purpose

4. (1) The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes.

Achievement of pay equity

6. (1) For the purposes of this Act, pay equity is achieved under the job-to-job method of comparison when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value.

Pay equity required

7. (1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

Idem

(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).

Exceptions

8. (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.

Compensation adjustments

9. (3) Where, to achieve pay equity, it is necessary to increase the rate of compensation for a job class, all positions in the job class shall receive the same adjustment in dollar terms.

FACTS

11. The parties proceeded by way of agreed facts as well as documentary evidence.

12. Ms. Moor is employed as a Facility Attendant, which is part of the Employer’s Seasonal Recreation Staff Group. The Facility Attendant position is a female job class. It is classified under Schedule E of the collective agreement, which is dedicated specifically to Seasonal Recreation Staff. At the relevant time, the majority of job classes in Schedule E were female dominated.

13. The Employer and Union entered into a Pay Equity Plan (the “Plan”), which was deemed approved in accordance with the Act. However, in November 2002, the Union asserted that the Plan contravened the Act by excluding Seasonal Recreation Staff as “casual” employees pursuant to subsection 8(3). After a Review Officer concluded that the positions were not properly classified as “casual” the Employer and Union negotiated a “pay equity process” “resolving pay equity” for the Recreational Staff with the assistance of the Pay Equity Officer.

14. Neither the job-to-job nor the proportional method of comparison was used in order to determine the Facility Attendant job rate. The parties agree that the Review Officer accurately described the process by which the parties assessed the Facility Attendant job class as follows at paragraphs 56 and 57 of the Order:

15. Pay equity for the Facility Attendant job class was established by agreements between the Employer and Union referenced in the following documents:

f) Minutes of the Joint Job Evaluation Committee, dated March 28, 2003, executed by the parties on May 13, 2003 outlining the pay equity process;

g) CUPE Local 543 Joint Job Evaluation Seasonal Recreation Staff report containing the 2004 pay equity wage rate for the Facility Attendant job class, approved by Council on June 29, 2004 at $15.14, effective June 1, 2004 (based on a job rate of $9.71). The document states that no male comparator was used;

h) Pay Equity Model Assumptions & Methodology report, inclusive of pay differentials listed in Exhibit B's Schedule of Rate Differentials, Non-Aquatic, for each year from 1990 through to 2004 (on which adjustments were based).

j) Schedule E of the Collective Agreement(s).

57. In 2004, the Employer and Union negotiated and agreed to a different method from the deemed approved plan's Classification 3 comparison to determine the Facility Attendant's $15.14 per hour pay equity job rate (based on a value of 288 points). On this basis, the job class "achieved'' pay equity, payouts were made, and the adjustment was incorporated into the collective agreement.

58. The parties are unable to identify any particular male comparators that were used during this process. However, the end result was that the job rate for the Facility Attendant position was determined to be $15.14/hour. The Employer processed all retroactive pay equity adjustments to the Schedule E employees in the amount of $6,774,773.00. Ms. Moor received a retroactive payment in the gross amount of amount of $32,690.93. The Pay Equity Plan was deemed approved in accordance with the Act. There is no dispute that pay equity had been achieved in respect of the Facility Attendant position at this time.

59. For the purposes of pay equity maintenance thereafter, the newly identified $15.14 pay equity job rate did not remain a stagnant rate and in fact continued to increase consistently with Schedule B (another category of employees under the collective agreement) through collective bargaining negotiations. As of January 1, 2012, the job rate for the Facility Attendant position was $18.14/hour.

60. The collective agreement between the parties contains the following provision, which applies to Schedule E employees:

28.01 The Corporation shall have the right to contract out any work provided however, that prior to contracting out work normally performed by members of the bargaining unit on June 26, 1971, advance discussions will take place between the appropriate department heads of the Corporation and the Union. The Union shall be advised in writing and discussions shall commence not more than three (3) weeks from the date of such written notice.

18. In February 2012, the Employer commenced construction of a new Family Aquatic Centre which was scheduled to partially open in June 2013. The Employer made it clear to the Union that the Employer needed to implement cost-saving measures or else it would consider contracting out the work to the YMCA in accordance with article 28.01. If that were to occur, the Union could stand to lose as many as 60 jobs.

19. The Employer invited the Union to submit ideas on how to reduce costs. The Union submitted a proposal dated September 19, 2012, which suggested the implementation of a 4-step wage grid process whereby the top step would be the existing job rate (e.g. $18.14 for the Facility Attendant). The Union’s proposal contemplated that those employed as of December 31, 2012 would receive the level 4 job rate. The Employer rejected the proposal on the basis that it did not provide enough savings.

20. The Union submitted a second proposal dated October 4, 2012, which also included a wage grid; however, pursuant to this proposal, employees would advance a step on the grid after 18 months of employment instead of a year. Also, the wage rates for steps 2 and 3 were reduced, although the job rate remained the same. This second proposal still maintained that employees employed as of December 31, 2012 would receive the level 4 job rate. The Employer rejected this proposal as well.

21. The Union submitted a third proposal dated October 24, 2012 in which progression through the wage grid would take two years, the number of steps on the wage grid was reduced from four to three and the job rate remained the same (e.g. $18.14 for the Facility Attendant). The key difference was that all those employed as of December 31, 2012 would receive the level 2 wage rate. The Employer accepted the Union’s third proposal and executed a Memorandum of Understanding to that effect dated December 14, 2012 (the “Memorandum of Understanding”).

22. In accordance with the parties’ agreement, all Schedule E employees who were employed as of December 31, 2012 received the level 2 wage rate for their classifications effective January 1, 2013. For Ms. Moor this meant that her hourly wage was reduced from $18.14 to $16.48. As of January 1, 2015, Ms. Moor returned to the Facility Attendant job rate which by then had increased to $18.32/hour.

23. The Union expressly admits (and the parties have agreed) that paragraph 41 of the Order accurately reflects the Union’s rationale for entering into the Memorandum of Understanding, namely:

The relative bargaining strength of its local in the last round of negotiations was insufficient to fight off the employer’s attempts to recognize wage savings for the recreational staff complement, including the Facility Attendant job class. The Union felt compelled to respond as it did when faced with the real likelihood that the Employer would contract out the recreational services component as contemplated…that would have resulted in the loss of sixty or more positions.

24. In short, there is no dispute between the parties that there was a legitimate likelihood that the Employer would have contracted out the work in question if the Union had not provided it with cost-saving measures.

ANALYSIS

The Employer and Union have violated the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html)

25. The Employer asserts that the Tribunal must recognize the delicate balance between redressing systemic discrimination and respecting the realities of various employment factors. It relies upon the dissenting decision in Corporation of the City of Peterborough, 2015 CanLII 55324 (ON PEHT) (August 31, 2015) at paragraph 32 (“Peterborough”) for the principle that a variety of factors affect employee wages, including the presence of a union and bargaining strength, and that the Act does not aim to “undo” or redress the effect of any of these factors.

26. The Employer also relies upon the majority decision in Group of Employees v. Ontario Public Service Employees Union and Crown in Right of Ontario (Management Board Secretariat), [1993] O.P.E.D. No. 47 (QL) (October 7, 1993) (“Management Board”) at paragraph 32 for the same principle. In that decision, a group of employees took issue with a pay equity plan that the employer and union entered into and which was deemed approved under the Act. A key consideration was whether the employer and union unreasonably excluded job content of the job classes in question from the relevant job evaluations in contravention of section 5 of the Act. A majority of the Tribunal found that there was nothing to suggest that the union and employer acted unreasonably in that regard and consequently dismissed the application. At paragraphs 32 to 35, the majority had this to say:

32 As the Tribunal has noted in several previous decisions, the Act has both anti-discrimination and collective bargaining elements. The Pay Equity Act, 1987 has elements of anti-discrimination legislation both in its historical development and in its content. The law is a recognition of the systemic nature of wage discrimination and provides a strategy to deal with the discrimination. The law also has a labour relations component in that the framework for achieving pay equity in unionized workplaces is a collective bargaining one, with both rights and obligations on employers and bargaining agents. The Act imposes the obligation to negotiate pay equity plans and provides a detailed mechanism by which pay equity will be accomplished. The law gives clear recognition to the history and structure of collective bargaining in this process. Haldimand-Norfolk (No. 3) (1989), 1 P.E.R. 17 at para. 40 and para. 42.

33 The provisions of the Act indicate this dual nature. On the one hand, as the preamble and section 4(1) set out, the purpose of the Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes in Ontario. The Act recognizes the need for affirmative action and describes its task as redressing a systemic problem. In other words, the legislation has an anti-discrimination purpose.

34 On the other hand, where there is a bargaining agent, the scheme adopted by the Legislature to redress the defined discrimination is collective bargaining. The Act specifies that where the parties agree and execute a pay equity plan, that plan is deemed approved by the Commission. The first adjustments in compensation called for in the plan follow this agreement and approval. Furthermore, the adjustments to rates of compensation required by the plan are deemed to be incorporated into and form part of the collective agreement concerning the parties. These are two important consequences affecting the compensation of employees in female job classes which flow from the agreement of the parties to pay equity bargaining and the deemed approved provisions of the Act. Section 13(9) which provides that plans approved under Part II are binding on the employer, the employees and their bargaining agent, is a further indication that the Legislature intended pay equity plans to be finalized following agreement between the employer and the bargaining agent.

35 Given these provisions, the Tribunal's approach to allegations about a deemed approved pay equity plan failing to meet the statutory minimum provided by the Act must be a balanced one. On the one hand, the Tribunal finds that a failure to meet the statutory minimum indicated in the Act would be a contravention of the Act and as such would render a deemed approved pay equity plan invalid. The parties are not competent to contract out of the standards of the Act. (Ontario Human Rights Commission et al. v. Borough of Etobicoke (1982), 1982 CanLII 15 (SCC), 132 D.L.R. (3rd) 14 (S.C.C.) at pages 23 and 24.) At the same time, the Tribunal must accord considerable deference to parties who are obligated by the Act to negotiate and implement pay equity. This deference is necessary not only because of the deemed approved provisions of the Act, but also because the standards in the Act are not always easily discernible and some are specifically subject to the negotiation process. More than a belief that their statutory rights have been violated will be required before individual unionized employees can access an inquiry into a negotiated and deemed approved plan.

27. There is no doubt that the Act recognizes the collective bargaining process and its impact upon wages. Additionally, the Tribunal will give substantial deference to pay equity plans that employers and unions enter into that are deemed approved under the Act. The Tribunal also recognizes that, in meeting the requirements of a provision such as section 5, there may be a range of reasonable evaluations that could be given to a particular job class and as long as the evaluation that the union and employer applied falls within that range, the Tribunal is not going to interfere.

28. However, the instant situation is very different from the Management Board, supra, decision and others like it. The issue in the instant case is not whether the actions of the Employer and Union fall within a range of reasonable courses of action in the same way that an evaluation of a job class under section 5 could yield a range of reasonable results. The pointed issue in this case is whether reducing the wages of an employee who has achieved the pay equity job rate of her job class contravenes section 7 of the Act (absent an applicable exception under the Act). If doing so contravenes section 7, it cannot be considered reasonable in any circumstances. It goes without saying that the deference described in Management Board, supra, can only apply to the extent that any actions of the employer and union are in harmony with the provisions of the Act.

29. The Act clearly contemplates the existence of wage grids. For example, subsection 9(3) states, “Where, to achieve pay equity, it is necessary to increase the rate of compensation for a job class, all positions in the job class shall receive the same adjustment in dollar terms.” The Tribunal has interpreted this provision in several decisions. It has considered how pay equity adjustments ought to apply in the face of wage grids (See Canadian Union of Public Employees (CUPE) v. Gloucester (City), [1991] O.P.E.D. No. 142 (QL)(December 18, 1991) (“Gloucester”); Glengarry Memorial Hospital v. Ontario Nurses’ Assn. (ONA), [1992] O.P.E.D. No. 16 (QL) (June 9, 1992) aff’d (1995), 1995 CanLII 1488 (ON CA), 23 O.R. (3d) 43 (Ont. C.A.); and Ontario Secondary School Teachers’ Federation v. Brant Haldimand-Norfolk Catholic District School Board, [2009] O.P.E.D. No. 27 (QL) (July 31, 2009) (“Brant Haldimand-Norfolk”), aff’d [2011] O.J. No. 1399 (QL) (March 18, 2011) (Div. Ct.)) and has confirmed that, pursuant to subsection 9(3), each position within a job class must receive the same dollar increase as opposed to e.g. only increasing the job rate or implementing a percentage increase to each position.

30. The Tribunal and the courts have also considered whether wage grids must be harmonized as between female job classes and their male comparators, such that a female job class would not take a longer period of time and/or be subjected to a greater number of steps in achieving the top rate of a wage grid (the job rate). The Tribunal and the Divisional Court concluded that the Act does not require wage grids to be harmonized (See companion decisions Lakeridge Health Corporation, 2010 CanLII 46187 (ON PEHT) (August 11, 2010) and York Region District School Board v. Canadian Union of Public Employees, Local 1734, [2011] O.P.E.D. No. 36 (QL) (July 4, 2011), both of which were affirmed in Canadian Union of Public Employees Local 1999 v. Lakeridge Health Corporation, 2012 ONSC 2051 (May 31, 2012) (Div. Ct.)).

31. None of the above decisions considered a situation in which a new wage grid was being introduced at a time when pay equity had already been achieved. This panel is only aware of one decision in which the Tribunal addressed that issue directly: Call-A-Service Inc./Harmony Hall Centre for Seniors (No. 3), 2008 CanLII 88827 (ON PEHT) (April 28, 2008) (“Call-A-Service”). In that decision, the parties had used the proxy method of evaluation. Unlike in the instant case, it appears that the employer in Call-A-Service did not attempt to reduce the wages of incumbents when introducing wage grids but instead sought to apply the new wage grids to newly hired employees. At paragraphs 37-38 the Tribunal noted:

37…When asked by the Panel why the Employer had introduced salary scales, the Executive Director states: “We were thinking that new hires could come in at a lower rate”: By inference, setting the hourly wage rate below the pay equity adjusted wage rate would save the Employer money.

38. An inference from the documentary and oral evidence is that the Employer is of the view that as long as it pays the “incumbents” the “maximum pay equity adjusted rate”, setting the steps in the salary scales below the pay equity adjusted wage rate or the pay equity job rate does not violate the Act. It seems the Employer believes that the achievement of pay equity applies to the “incumbents” or the employees in a job class as opposed to ensuring that the pay equity job rate for a female job class achieves pay equity. As is evident in this case, such a view may lead to policies, processes, and results, which violate the Act.

39. Even though it appears that no incumbents experienced a loss of wages, the Tribunal concluded that the Employer’s actions violated the Act. It had this to say at paragraphs 41, 42, 43 and 47:

41… Setting steps in salary scales for a job class that has not achieved pay equity and setting steps for a job class that has achieved pay equity or a new female job class that does not fit into an existing female job class likely will yield different results.

42. Indeed, where a job class is working towards achieving pay equity, steps in salary scales may be set below the pay equity target rate. It does not matter whether the employer works backward from the pay equity target rate. The employer must not, however, set the first step below the pay equity adjusted wage rate. Applying that principle to this case, using the Program Manager job class as an example, the highest step in the job class would be $23, which was the pay equity target rate at that time. Thus, if as at May 30, 2003, the pay equity adjusted wage rate was $19.55, the first step of the salary scales must be $19.55.

43. In the case where the job class has achieved pay equity, or is a new female job class that does not fit into an existing job class, the first step in the salary scales should be the pay equity job rate. Applying that principle to this case, using the Team Leader job class, the first step of the salary scales should be $21.50, which was the pay equity rate at that time. That is because the Team Leader job class was created after January 1, 1994. For the Driver job class, the first step of the salary scales should be $15 because that job class has achieved pay equity.

44. To summarise, the Tribunal concludes that the Employer’s salary scales are inconsistent with the Act. As noted in paragraph 36(iv) above, except for the Executive Director and the Driver job classes, every step of the salary scales for all the female job classes is below the pay equity job rate or the pay equity adjusted wage rate. As a result of setting steps below the pay equity adjusted wage rate and the pay equity job rate, the compensation rates for positions have been reduced, and a wage gap has been created in a female job class, respectively. That is contrary to subsection 9(1) and 13(11) of the Act. Indeed, as a non-union establishment, the Employer may introduce salary scales after the pay equity plan had been deemed approved. The Employer may set as few or as many steps it deems necessary in its salary scales. It may work backwards from the pay equity target rate, but the first step in the salary scales shall not be below the pay equity adjusted wage rate or the pay equity job rate where appropriate.

45. We agree with the Tribunal’s conclusion in Call-A-Service, supra, that, while an employer is free to implement wage grids after pay equity has been achieved, it must ensure that it does so in a manner that is consistent with the Act. For the purposes of this case, it is not necessary for us to make a finding on whether the pay equity job rate must be the lowest rung on the wage grid as the Tribunal found in Call-A-Service (in which its focus was on new hires). This is because, unlike in Call-A-Service, the focus of the inquiry in this case is on whether, in implementing a wage grid, an employer can reduce the wages of an incumbent employee who is receiving the pay equity job rate of a job classification. We find that an employer cannot do so. This interpretation conforms to the principles of statutory interpretation that must be applied when the Tribunal considers section 7 of the Act.

46. This Tribunal is obligated to interpret the Act in accordance with section 64 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F which provides:

Rule of liberal interpretation

64. (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

65. The Act’s status as human rights legislation further requires that it be given a broad and liberal construction consistent with its purpose (See Caressant Care Nursing Home of Canada Ltd. v. London District Service Workers’ Union, Local 220, 2005 CanLII 13791 (ON SCDC), [2005] O.J. No. 1560 (QL) (April 12, 2005) (Div. Ct.) (“Caressant Care”) (at paragraph 53)). The Act’s express purpose is to redress systemic gender discrimination in compensation for work performed by employees in female job classes (See section 4).

66. As a general rule, the intention of a piece of legislation is to be gleaned from the words used in the provision at issue when seen within the context of the legislation itself (See Caressant Care, supra, at paragraph 55).

67. Section 7 of the Act is concerned with achieving and then maintaining pay equity. The provisions of the Act make clear that pay equity is achieved with reference to the job rate, which is the highest rate in a job class (See sections 5.1(1), 6, 13(3) and 21.3). Normally, pay equity is achieved if the job rate that a female job class receives is at least equal to that paid to its male comparator. As the Tribunal noted in Brant Haldimand-Norfolk, supra, at paragraph 12, the Act ultimately operates to put money in the hands of actual workers. That is why in requiring an employer to achieve pay equity, the Act directs it to make pay equity adjustments to the actual wages that individuals in female job classes receive and the employer must continue to do so on an annual basis until such time that pay equity is achieved. Specifically, in order to achieve pay equity, an employer must continue to make pay equity adjustments in the amount of 1 per cent of the employer’s payroll during the previous twelve month period, or whatever amount is required to achieve pay equity (See subsections 13(4) and 13(5)).

68. This focus on providing specific amounts to employees underscores the fact that the achievement of pay equity must be tangible as opposed to illusory. Generally speaking, a female job class has a “target rate” which is essentially the job rate of its male comparator or the rate that it must otherwise attain in order to achieve pay equity. The achievement of pay equity involves a series of wage adjustments until such time as the job rate of the female job class has achieved parity with that target rate. In the wage grid cases considered above, there was never the suggestion that the achievement of pay equity could occur at any point prior to an employee actually receiving the job rate of a female job class that has achieved pay equity in accordance with the Act.

69. Once achieved, section 7 requires that pay equity be maintained. The Employer points to the fact that the Act provides no direction on how pay equity is to be maintained pursuant to section 7 of the Act. While the Act does not define the term “maintain” the Tribunal has interpreted the term on several occasions. There is no exhaustive definition; however, the following considerations are instructive. In Call-A-Service, supra, the Tribunal described maintenance as follows at paragraph 25:

70. Maintenance is the means by which an employer ensures that compensation practices are kept up-to-date and remain consistent with pay equity principles. Subsection 7(1) of the Act imposes an obligation on an employer to establish and “maintain” compensation practices that provide for pay equity. Maintenance is an ongoing responsibility. It includes reviewing job classes regularly to capture any changes to job duties and responsibilities, which may require pay equity adjustments. Some examples of changes resulting from ongoing maintenance are: changes to job titles; changes to the duties and responsibilities of a job that may place it in a different job class and salary scale; the creation or elimination of a job class, in particular, a male comparator job class; and changes in the gender dominance.

71. In Peterborough, supra, the majority had this to say at paragraph 15:

72. The Act is remedial and pro-active in nature. It is designed to redress the harmful effects of gender pay discrimination against females in the workplace. Its aim is to bridge the wage gap between comparable male and female job classes in establishments, and once bridged, to prevent regression. The Act, however, permits some limited exceptions to the rule against differences in compensation between comparable male and female job classes. The Tribunal is a creature of the Act, and as such “has no power to unilaterally create exceptions to the Act.”

73. In decisions such as BICC Phillips Inc. v. Group of Employees, [1997] O.P.E.D. No. 16 (QL) (October 7, 1997) (“BICC”) at paragraph 8 and the Peel (Regional Municipality) v. Canadian Union of Public Employees (CUPE), Locals 966 and 2101, [1992] O.P.E.D. No. 39 (QL) (October 15, 1992) at paragraph 35, the Tribunal noted that section 7(1) and 7(2) are concerned with preventing a widening of a wage gap.

74. Therefore, the obligation to maintain pay equity will normally mean that, absent an exception under the Act, the actual wages that employees in female job classes receive must either remain constant or must increase in order to avoid the re-emergence of a wage gap. There is nothing in the Act that contemplates an employee receiving a reduced wage (absent the application of an exception under the Act). The entire point of the Act is for individuals to continue to receive wage adjustments until such time as pay equity is achieved and for pay equity, once achieved, to be maintained thereafter.

75. The wage grid in the instant case was introduced after pay equity had been achieved and after the Facility Attendant job rate had further increased due to maintenance. Up until December 31, 2012, the Employer had achieved and maintained pay equity as required under the Act resulting in a single job rate of $18.14 for the Facility Attendant position. Given the Act’s purpose of redressing systemic gender discrimination in compensation for work performed by employees in female job classes, it is difficult to see how maintaining pay equity could be interpreted in a manner that allows an employer to do what has transpired in the instant case.

76. After having achieved pay equity, for an employer to then introduce a wage grid which effectively reduces the wages that employees in female job classes receive is simply inconsistent with the underlying purpose and the entire scheme of the Act when analysed as a whole. To so find would render meaningless the entire mechanism for providing pay equity under the Act. It is not possible to interpret section 7 of the Act in this manner. If section 7 were interpreted so as to permit the Employer to do what it has done in the instant case, what would stop it from simply asserting on an annual basis that for financial reasons, it is not in a position to allow employees to move up the grid as scheduled? The Tribunal has repeatedly said that an Employer’s inability to pay is not a valid consideration when it comes to the Act (See Pay Equity Office v. Community Living Guelph Wellington, [2015] O.P.E.D. No. 12 (QL) (March 16, 2015) at paragraph 28). We do not agree with the Employer that finding its actions to constitute a violation of section 7 would constitute inappropriately “reading words into” the Act. Rather, we find that we have interpreted section 7 in a manner that is consistent with the purpose of the Act and its overall scheme.

77. The Employer maintains that as long as the job rate was not reduced, it has not violated the Act. The Employer points out that the Act tends to make reference to the “job class” as opposed to “incumbents.” Therefore, it asserts that the achievement and maintenance of pay equity is measured by what rates have been set for the job class and it does not matter what the incumbent receives. We find that the “job class” and “incumbent” distinction the Employer is trying to make is not meaningful. As mentioned, the pay equity process is aimed at making necessary adjustments to wages that employees within the relevant job class are actually receiving. It is the incumbents of the job class who receive the pay equity adjustments. An employer cannot implement a wage grid that includes job rates which nobody is receiving and then claim to have achieved pay equity. Pay equity is always measured in reference to the adjustments provided to actual individuals. By the same token, after having achieved and then maintained pay equity for a particular job class, an employer cannot claim to be in compliance with the Act if it reduces the employees’ wages below the job rate that they were previously receiving.

78. The Employer relies upon certain comments that the Tribunal made in Call-A-Service, supra, to support its position. Specifically, it relies on the Tribunal’s suggestion that the Employer in that case was unduly focusing on what was being provided to incumbents versus what was being provided to the job class (see paragraph 37).

79. As mentioned, in Call-A-Service, supra, the Employer did not reduce the wage rates of incumbents (unlike in the instant case). Instead, it sought to apply the wage grid to new hires. It is true that the Tribunal rejected the Employer’s suggestion that the Employer was in compliance with the Act because it did not reduce the wages of incumbents. However, the Tribunal’s comments cannot be interpreted as meaning that the Employer would have been in compliance if it had implemented wage grids in which the top rate of the grid were the job rate but the incumbents were somehow moved to lower rungs on the grid along with the new hires. The thrust of Call-A-Service is that the Tribunal was of the view that once adjustments have been applied to achieve the pay equity job rate (or a particular rate en route to wage parity), an employer cannot implement a new wage grid which causes employees to receive a rate of pay lower than what the job class had achieved at that point in time through pay equity adjustments. There is no aspect of the Call-A-Service decision that could be interpreted as supporting what the Employer has done in this case. Therefore, the Employer’s attempt to seize upon the Tribunal’s use of the word “incumbent” is misplaced.

80. The Employer relies upon the Gloucester, supra, decision. As mentioned, Gloucester involved a scenario in which the employer was still in the process of making pay equity adjustments under the Act. The question was how to implement the required pay equity adjustments in respect of employees who were receiving less than the job rate (see section 9(3)). In Gloucester, the Tribunal stated the following at paragraph 36:

In a pay equity plan, the compensation adjustment for incumbents in a female job class is one of the elements that must be bargained by the employer and the bargaining agent. Whatever method of adjustment is agreed to, it must redress systemic gender discrimination in compensation. The method of adjustment must also provide an effective remedy for systemic discrimination in compensation for employees in undervalued female job classes. We do not believe that, for example, it would be an appropriate remedy to deny any compensation adjustments to employees who are below the job rate. Nor do we believe it would be acceptable if the remedy meant that employees in undervalued female job classes would take twice as long to reach the job rate as employees in the comparable male job class. Neither result would be equity. Mere access to the male job rate for the employees in the undervalued female job class is not enough.

49. The Employer relies upon the above excerpt for the proposition that as long as it does not take twice as long for a female job class to attain the job rate, the instant grid complies with the Act. The Employer’s attempt to rely upon the Gloucester, supra, decision is misplaced.

50. First, as mentioned, Gloucester, supra, and other decisions like it consider how to achieve pay equity when there are existing wage grids. It did not consider a scenario in which a wage grid is introduced after pay equity is achieved.

51. Second, since Gloucester, supra, contemplated the employer making pay equity adjustments to the job rate, it is clear that there were actual employees being paid the job rate at the relevant time unlike the situation that was created in the instant case. Therefore, Gloucester cannot be interpreted as supporting the Employer’s position that moving an incumbent employee (who had been receiving the job rate) to a lower wage rate complies with the Act as long as the job rate is technically still attainable at some future point in time. Gloucester simply did not contemplate that scenario. It also seems to us that such an interpretation would be inconsistent with the Tribunal’s comment in Gloucester that, “Mere access to the male job rate…is not enough.”

52. Third, the notion that pay equity is complied with as long as it does not take a female job class twice as long as a male comparator to achieve the job rate does not assist in the instant case because Ms. Moor had already achieved the pay equity job rate when the wage grid was implemented. Therefore, we are not faced with a question of whether it can take twice as long for a female job class to achieve pay equity. Rather, we are faced with the question of whether once pay equity is achieved, an employee nonetheless can be moved to a lower wage rate, absent the application of an exception under the Act. For all of these reasons, the Gloucester, supra, decision is not of assistance in determining the issue at hand.

53. In light of the foregoing, we find that the implementation of the wage grids which resulted in reducing Ms. Moor’s wage rate in the instant case constituted a violation of subsections 7(1) and 7(2) of the Act.

54. The Employer argues that there is no identified male comparator in this case. Therefore, unlike in BICC, supra, the Employer cannot point to a male comparator with which the Facility Attendant classification has maintained wage parity. The Employer argues that it cannot be faulted for this situation.

55. The Employer’s argument misses the point. The agreed facts were that the Pay Equity Plan was deemed approved under the Act, the necessary adjustments were made and maintenance was performed. The only remaining issue for this panel to assess is whether the reduction of Ms. Moor’s wages in this way constituted a violation of section 7. For the above reasons, we find that it did. The Union and Employer cannot possibly hide behind the fact that, for whatever reason, they do not possess evidence of a male comparator (if any) that may have been used en route to achieving pay equity for Ms. Moor. Given the facts of this case, it is not necessary (or possible) for us to consider whether there would have been a different result if such a male comparator were uncovered for comparison purposes.

The bargaining unit strength exception does not apply

56. The Employer argues in the alternative that the wage reduction is justified pursuant to subsection 8(2) on the basis that it occurred as the result of a difference in bargaining strength. We find that subsection 8(2) does not assist the Employer. There is no dispute that the Union felt compelled to comply with the Employer’s demands for savings in this case, which led to the implementation of the wage grid and the resulting wage reduction for Ms. Moor. Also, there is no dispute that the Union was in a disadvantaged bargaining position vis-à-vis the Employer, given the collective agreement language that permitted the Employer to contract out the work if the Union did not offer cost-savings.

57. However, subsection 8(2) is not concerned with a bargaining imbalance as between an employer and the bargaining agent of the female job classes in question. Subsection 8(2) contemplates a difference in compensation between a female and male job class after pay equity has been achieved. It then mentions an exception whereby differences can occur if there is a difference that is “the result of differences in bargaining strength.” A plain reading of that subsection leads to the conclusion that the difference in bargaining strength is in reference to the male job class versus the female job class since they are the two groups that have experienced a difference in compensation. This is consistent with Stevenson Memorial Hospital, 2000 CanLII 22419 (ON PEHT) (February 24, 2000) in which the Tribunal found that subsection 8(2) is concerned with the scenario whereby the bargaining agent of the male comparator is able to achieve gains based on its superior bargaining strength in comparison to the bargaining strength of the female job class’s bargaining agent.

58. It is trite that when interpreting anti-discrimination statutes, exceptions must be construed narrowly. Therefore, if the Legislature meant for differences in bargaining strength to include differences between the female job class’ bargaining agent and the employer, clear language would have been necessary. Since no such clear language exists, we find that the exception set out at subsection 8(2) does not apply in this case.

The Union is not required to contribute to the payment of wage adjustments

59. The Employer argues that the Union should be required to contribute to any outstanding wages that it may be required to pay. It relies upon the dissenting opinion in the decision of Welland County General Hospital v. Service Employees International Union, Local 204, [1994] O.P.E.D. No. 36 (QL) (February 23, 1994) (“Welland”). In that decision, the union and employer agreed to a percentage increase to a male comparator job rate and an interest arbitrator awarded a “trades adjustment,” both of which caused a widening of the wage gap between the relevant female job class and its male comparator.

60. A majority of the Tribunal ordered that the pay equity plans be revised so as to provide the required pay equity adjustments. Of interest for the purposes of this analysis is the Tribunal’s consideration of the percentage increase. The employer asserted that the union ought to be jointly liable given its role in implementing the percentage increase in question. The dissenting member agreed, relying upon the decisions of Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (“Renaud”) and Office and Professional Employees International Union, Local 267 v. Domtar (1992) 1992 CanLII 7512 (ON CTGD), 8 O.R. (3d) 65 (Div. Ct.) (“Domtar”).

61. In declining to order the union to contribute, the majority had this to say at paragraphs 57 to 59:

57 Even had we found that the Union was in breach of s. 7(2) in agreeing to the percentage increase and in seeking the trades adjustment, at most we would have issued a declaration to that effect. We would not have ordered the Union to pay any of the cost of redressing the gap widening. Those are payments that must continue over time. They are indistinguishable from wages and it is in our view inconceivable that a Union should be subject to an ongoing commitment to pay wages. Because a union's only source of funding is membership dues, such an award would be tantamount to requiring employees, through those dues, to pay their own wages.

58 This case is conceptually the same as Re Leisure World Nursing Homes Ltd. and Director of Employment Standards et al. (1980), 1980 CanLII 1681 (ON HCJ), 112 D.L.R. (3d) 540 and we agree with the Divisional Court's disposition of it. In this case, which neither party cited, a union violated a provision of the Employment Standards Act ("the ESA") that prohibited it from causing an employer to agree to rates of pay in contravention of the ESA. What the employer and union had done was conclude a collective agreement providing for different rates of pay for men and women performing substantially similar work. The employer argued that because the union violated the ESA by entering into the collective agreement, it should have to pay the wages required to rectify the situation. This is clearly similar to the Employer's argument here: the Union agreed to percentage increases: in doing so it violated s. 7(2); the Union must contribute to the wage payments required to rectify the contravention of the Act in which it participated. The Court in Leisure World held that absent express statutory provision for such a remedy, there was no jurisdiction to order a bargaining agent to pay compensation to the employees in those circumstances. We agree. As the Court in Leisure World also pointed out, however, its holding did not mean a bargaining agent could contravene the ESA with impunity. Under the ESA a bargaining agent can be prosecuted for a contravention of the statute, and subject to a fine if convicted. A similar provision is found in s. 26 of the Act.

59 This case is not the same as Central Okanagan School District No. 23 v. Renaud (September 24, 1992) (unreported) (S.C.C.), a case relied on by the Employer in support of its remedial request that the Union pay. Renaud involved a human rights complaint by a member of a bargaining unit against both his employer and his bargaining agent. The regular work schedule set out in the collective agreement interfered with Mr. Renaud's religious observances. Without the consent of his bargaining agent, the employer could not change Mr. Renaud's schedule from that specified in the collective agreement and accommodate his religious beliefs. The bargaining agent did not consent. The employer and the bargaining agent were found to be jointly responsible for the failure to accommodate Mr. Renaud and ordered to pay equal amounts in respect of damages for lost wages and for emotional distress. In Renaud, unlike this case, the union and the employer contributed jointly to both the initial wrong against the employee (the scheduling provision in the collective agreement which had a discriminatory impact on him), and to the subsequent failure to redress that wrong through accommodation, as required by statute. By contrast, in the case before this Tribunal, the Union is attempting to redress a wrong and the Employer is opposing those attempts. Furthermore, in Renaud an employee complained in effect of the complicity of the Union and Employer. Here of course, the Employer is attempting to proceed against the Union for contribution in respect of additional wages payable pursuant to the Employer's agreement (the percentage wage increase), and pursuant to an interest arbitrator's award, which has the same effect as if the parties had agreed to it (the trades adjustment).

62. We agree with the majority’s conclusion in Welland, supra: absent an express statutory provision for such a remedy, there is no jurisdiction to order a union to pay wage adjustments in the circumstances of the instant case. We note that the decision that the majority relied upon, Leisure World Nursing Homes Ltd. and Director of Employment Standards et al. (1980), 1980 CanLII 1681 (ON HCJ), 29 O.R. (2d) 144 (Div. Ct.) (“Leisureworld”) has been relied upon by the Union in this case. We find that Leisureworld is factually similar to the instant case and we find that the considerations set out therein are equally applicable to the instant case.

63. One difference between the situation in Welland, supra, and the instant case is that in Welland, the union sought to redress the widening of the wage gap whereas in this case it is Ms. Moor who pursued a complaint naming both the Employer and the Union as responding parties. Although this provided the majority in Welland with a basis to further distinguish the circumstances before it from Renaud, supra, we do not find the absence of this factor to be fatal to the Union’s case here. This can be illustrated by contrasting the statutory remedial authority at issue in Renaud with that at issue in the instant case.

64. In Renaud, supra, the language of the relevant Human Rights Act, S.B.C. 1984, c.22 gave the tribunal the authority to order “the person” (which term includes a trade union) who contravened the act to compensate “the person discriminated against” for (among other things), lost wages (See section 17). Similarly, the legislation at issue in Domtar, supra, the Human Rights Code, S.O. 1981, c. 53, s.4, contemplated ordering “a party” to compensate a complainant whose rights had been violated. By contrast, subsection 25(2) of the Act sets out the various orders that this Tribunal may issue. Paragraph 25(2)(e) is relevant for the purposes of the instant case:

25 (2) The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the foregoing, the Hearings Tribunal,

(e) may, for the female job class that is the subject of the complaint or reference, order adjustments in compensation in order to achieve pay equity, where the Hearings Tribunal finds that there has been a contravention of subsection 7 (1);

65. It is notable that, while the language at issue in Renaud and Domtar, supra, specifically granted the tribunals authority to order the union (as a person/party who contravened the relevant legislation) to compensate the person discriminated against, there is no similar language in section 25 of the Act. Instead the relevant language only contemplates ordering “adjustments in compensation.” Throughout the Act, it is clear that employers alone are responsible for making pay equity adjustments. Therefore, absent express language to that effect, paragraph 25(2)(e) cannot reasonably be interpreted as granting the Tribunal authority to order a union to contribute to the payment of adjustments in compensation. As was discussed in Welland, supra, we are also persuaded by the absurdity of requiring a union, which is funded by union dues, to pay wage adjustments. This would mean that the employees in question would be, in effect, paying for their own wage adjustments. Clear language is required in order to produce such a result.

66. Furthermore, even if the Tribunal possessed the authority to order a union to contribute to the payment of adjustments in compensation under paragraph 25(2)(e), we would not have ordered the Union to do so in this case. In both Renaud, supra, and Domtar, supra, the union, after agreeing to a collective agreement term that had a discriminatory effect on the complainant, blocked the employer’s subsequent efforts to rectify the situation through a reasonable accommodation. By contrast, the Union in this case attempted to avoid reducing the wages of the Schedule E employees. However, in the face of the Employer’s legitimate threat of contracting out some 60 bargaining unit jobs, the Union gave in to the Employer’s demands for cost-saving measures. Even if this Tribunal possesses such authority (which we find it does not), this would not have been an appropriate case to require the Union to contribute to the wage adjustments.

DISPOSITION

67. The Order is confirmed.

Dated at Toronto, Ontario this 11th day of April, 2017.

"Roslyn McGilvery" Roslyn McGilvery, Vice-Chair

"Carla Zabek" Carla Zabek, Member

"Carol Phillips" Carol Phillips, Member