The University of Western Ontario Faculty Association - Librarians and Archivists v. The University of Western Ontario, 2018 CanLII 116055

PAY EQUITY HEARINGS TRIBUNAL

PEHT Case No: 1534-16-PE

The University of Western Ontario Faculty Association - Librarians and Archivists, Applicant v The University of Western Ontario, Respondent

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

APPEARANCES: C. Lace, N. Blum, J. Filman, Elizabeth Mantz, Cindy Cossar-Jones, and Ann Bigelow appearing on behalf of the applicant; Carolyn Kay and Louise Koza appearing on behalf of the respondent

DECISION OF THE TRIBUNAL: November 28, 2018

1. This is an application filed under the Pay Equity Act, RSO 1990, c P.7, as amended (the “Act”). This application concerns a bargaining unit comprised of librarians and archivists that the applicant, the University of Western Ontario Faculty Association (“UWOFA” or the “Union”), represents.

2. UWOFA asserts that the University of Western Ontario (the “UWO” or “Employer”) has failed to comply with the Act in the positions it took while negotiating pay equity issues after UWOFA was certified to represent the librarians and archivists.

3. The Employer asserts that it complied with the Act. It argues that when UWOFA refused to complete a pay equity plan with the Employer as per the directions of a Review Officer – but elected instead to give notice that it would file the instant application appealing the Review Officer’s Order – the Employer had no choice but to unilaterally complete the pay equity plan without UWOFA’s input and to pay out the adjustments.

4. For the reasons that follow, we find that the Review Officer’s Order must be revoked.

FACTS

5. The parties entered an Agreed Statement of Facts (the “ASF”) into evidence. Each party also entered several will-say statements and the parties agreed to place documentary evidence before this panel as exhibits.

6. We did not find the will-says (on which the parties chose not to cross-examine) to be particularly helpful. They simply illustrate that the parties do not agree on how to characterize the process in which they were engaged during the relevant time. Similarly, the voluminous documentary evidence, comprising of meeting notes, meeting minutes, correspondence, and communiqués was not particularly helpful, especially when the parties often acknowledged, for example, that it was at times impossible to decipher who was making a particular comment during a particular set of meeting minutes. The ASF was of the most assistance to the analysis of this case.

Background

7. On May 26, 1998, UWOFA became the certified bargaining agent for full-time and part-time faculty employees employed at the UWO. Prior to that, UWOFA informally represented full-time faculty outside of the framework of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “LRA”).

8. The librarian position existed at all relevant times. However, the position of archivist was not created until December 2001.

9. Effective September 15, 2004, UWOFA was certified to represent a bargaining unit of librarians and archivists employed by the Employer who were previously represented by the Professional Managerial Association (the “PMA”) outside of the framework of the LRA.

The Development of the 1990 Pay Equity Plan

10. In 1988, representatives of various employee groups (including UWOFA and PMA) and representatives of the Employer formed a President’s Advisory Committee on Pay Equity (“PACPE”) to develop a pay equity plan to be approved by the Employer.

11. The parties used a policy-capturing methodology to evaluate job classes.

12. As mentioned, in 1990, the position of archivist did not yet exist. There were 51 librarians distributed as follows:

• 35 in Salary Grades 13 and 14, which were determined to be female job classes;

• 16 in one of the following: the gender neutral job classes of Salary Grade 15, Salary Grade 16 or the male job class of Salary Grade 17.

13. The compensation schedule for librarians at the time was the PMA compensation schedule. For each PMA job class, there was a minimum and maximum rate. However, progress to the maximum rate was not automatic. Employees could progress to a fixed “job rate,” but progress by an incumbent from the job rate to the maximum rate was dependent on merit-based adjustments. The pay equity job rate for each of the librarian job classes was set as the job rate of the salary range for each job class (i.e. without regard to merit adjustments paid to individuals).

14. However, the male-dominated faculty job class, and some other job classes, did not have a maximum rate or a compensation structure. At that time, (and continuing to the present) for faculty there was a “floor” for each rank, but no ceiling, and faculty members could be hired at a salary that was above the floor for their rank. Accordingly, at that time, the PACPE decided that for the purposes of pay equity, the job rate for faculty members (as well as for other jobs without formal job compensation ranges) would be the median salary of all incumbents in that job class.

15. UWOFA and the Employer entered into a Memorandum of Agreement in February 1990, agreeing that the job rate for the purposes of the Act for faculty would be the median of actual salaries of faculty in tenure and tenure track positions.

16. The Employer adopted (and signed off on) PACPE’s recommendations, resulting in, inter alia, a pay equity plan for non-unionized employees (including those that UWOFA and PMA represented outside the framework of the LRA at the time). UWOFA and the other employee groups also signed off on the recommendations.

17. These pay equity plans, including the non-union plan (the “1990 Plan”), were posted on May 15, 1990 and all objections were resolved.

18. The policy capturing methodology that the parties used was a complex statistically intensive process, which was a form of proportional value methodology.

19. The Employer was an employer to which Part II of the Act applied. At the time, the Act essentially required Part II employers to apply the job-to-job methodology to compare the job rates of female job classes to the job rates of similarly-valued male job classes. As a result of 1993 amendments to the Act that came into effect in 1994, and in particular, section 21.2(3) and related provisions, the use of the proportional value comparison in the 1990 Plan for the non-unionized employees was retroactively validated, even though the job-to-job methodology had not been used.

The Certification of UWOFA as the Bargaining Agent

20. The separate bargaining unit of librarians and archivists that UWOFA became certified to represent on September 15, 2004 is called UWOFA-LA.

21. The parties included a Letter of Understanding (the “LOU”) regarding pay equity in the 2011-2015 UWOFA-LA Collective Agreement. The LOU provided for a pay equity review to be carried out by a Joint Pay Equity Committee (the “JPEC”). It provided the following:

This Letter of Understanding forms part of the Librarians And Archivists Collective Agreement (July 1, 2011-June 30, 2015) for the life of the Collective Agreement.

1. In order to ensure compliance with Ontario’s Pay Equity Act for this Bargaining Unit, a Pay Equity Review shall be carried out by a Joint Pay Equity Committee. The Joint Committee shall be composed of three persons appointed by the Association, three persons appointed by the Employer, and two Co-Chairs appointed by mutual agreement of the Employer and the Association.

2. The Parties may engage additional advisors to assist their representatives on the Joint Committee. Advisors may attend meetings of the Joint Committee and will have voice but no vote. Each party will be responsible for any costs associated with the presence of its advisor(s) at the Joint Committee meetings.

3. The Joint Committee shall be established by November 15, 2011. It shall deliver an interim report to the Parties by May 30, 2012, and a final report by August 31, 2012. By Mutual agreement these dates may be extended.

4. The duties of the Joint Committee shall be as follows:

i) to study the University’s existing Pay Equity Plan,

ii) to draft a Pay Equity Plan required to provide pay equity for Members since certification of the bargaining unit, specifically for 2004-05 through to 2011-12, and to recommend the adoption of those revisions by the Parties,

iii) to recommend any required pay equity compensation adjustments for current Members for 2004-05 through 2011-12, and

iv) to recommend to the Parties how the Pay Equity Plan should be maintained for the years following 2011-12.

4.1. Salaries used for pay equity analysis for 2011-2012 shall include any adjustments made for 2011-2012 under the 2011-2015 Librarian/Archivist Collective Agreement.

4.2. Any pay equity adjustments shall be reported for tax purposes and shall be pensionable, subject to the limitations and requirements of the Income Tax Act.

5. Each Party shall deliver its response to the final report of the Joint Committee to the other Party, and to the members of the Joint Committee, within three months of receiving the Joint Committee’s final report.

5.1. If both Parties accept the recommendations of the Joint Committee, those recommendations shall then be implemented by the Employer within a further three months.

5.2. If either Party does not accept all the recommendations of the final report of the Joint Committee, the Parties shall enter into arbitration under the Grievance and Arbitration article of the Librarian/Archivist Collective Agreement in advance of any referral to the Pay Equity Commission.

22. The parties had disagreements respecting how to survey the librarian and archivist positions for the purposes of the pay equity review. Their disagreements were the subject of a Review Officer’s decision dated April 23, 2013. In that decision, the Review Officer found that the parties’ decision to review the 1990 Plan was voluntary and not mandated by the Act. The Review Officer therefore declined to issue any orders. Neither party appealed the Review Officer’s decision.

23. Subsequently, the parties agreed to the process to be followed for surveying the librarians and archivists. The JPEC agreed on a Gender Neutral Compensation System (“GNCS”) and a job analysis questionnaire, which was distributed in November 2013. Thereafter, the JPEC met several times and reached agreements on such things as the points for each of the agreed upon job classes, the agreed upon gender dominance of the job classes, banding, and permissible differences. However, they failed to agree on two significant issues:

i. Comparison methodology; and

ii. Determination of job rates for job classes with multiple incumbents with no defined salary maximum.

24. The parties have agreed that there were 20 job classes within UWOFA-LA. Four of these job classes contained multiple incumbents:

• Archivist;

• Metadata Management Librarian;

• Research & Instructional Librarian; and

• Library Head.

Review Officer’s June 14, 2016 Order

25. UWOFA filed an application with Review Services on April 7, 2015 to resolve the parties’ differences.

26. By Order dated June 14, 2016, a Review Officer found that:

27. The Employer and Union agreed to develop a new Pay Equity Agreement for the bargaining unit.

28. The Employer and Union agreed to use a new job evaluation tool to establish the job values of bargaining unit job classes, and are required to negotiate new pay equity results for bargaining unit female job classes.

29. The job rates of bargaining unit job classes are not required to be determined as the median salary of job classes.

30. The Review Officer ordered the parties to do the following:

31. Under Section 24(3) of the Act, I order the Employer and Union to complete a pay equity agreement for the bargaining unit within 90 days of receipt of this Order in accordance with the findings of this Order.

Actions Taken After the Review Officer’s June 14, 2016 Order

28. Following the Review Officer’s June 14, 2016 Order, the Employer contacted UWOFA to complete a pay equity plan as directed. However, UWOFA declined to do so, as it planned to appeal the Review Officer’s June 14, 2016 Order. The Employer nonetheless proceeded to finalize a pay equity plan without UWOFA’s input using the GNCS that had been agreed upon and a job-to-job method of comparison (which UWOFA does not agree with). It also determined job rates for “multi-incumbent jobs” through the use of a salary maximum (the highest paid incumbent) instead of the median rate that UWOFA had insisted upon. The Employer proceeded to pay out adjustments to employees in December 2016 based on its calculations.

RELEVANT STATUTORY PROVISIONS

[Pay Equity Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html)

Pay equity required

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

Changed circumstances

14.1 (1) If, in an establishment in which any of the employees are represented by a bargaining agent, the employer or the bargaining agent is of the view that because of changed circumstances in the establishment the pay equity plan for the bargaining unit is no longer appropriate, the employer or the bargaining agent, as the case may be, may by giving written notice require the other to enter into negotiations concerning the amendment of the plan.

Application of s. 14

(2) Clause 14 (2) (b) and subsections 14 (3), (4) and (5) apply, with necessary modifications, to the negotiations and to any amendment of the plan that is agreed upon.

Failure to agree

(3) If the employer and the bargaining agent do not agree on an amendment before the expiry of 120 days from the date on which notice to enter into negotiations is given, the employer shall give notice of the failure to the Commission.

Same

(4) Subsection (3) does not prevent the bargaining agent from notifying the Commission of a failure to agree on an amendment by the date referred to in that subsection.

POSITIONS OF THE PARTIES

29. UWOFA asserts that, pursuant to the LOU, the parties were engaged in a process of maintaining pay equity as required under section 7 of the Act. It asserts that the evidence supports its position in this regard. It argues that, once the parties could not agree on the method of comparison, and on what constitutes the job rate, they were required to revert to what they did in the 1990 Plan, which was to use the proportional value and a median job rate. It relies upon Windsor-Essex County Health Unit, 2010 CanLII 61201 (ON PEHT) (October 20, 2010) (“Windsor-Essex”).

30. UWOFA argues that the Employer was obligated to bargain with UWOFA in good faith and not to take its position regarding the method of comparison and the job rate to impasse.

31. UWOFA wants the Tribunal to revoke the Review Officer’s June 14, 2016 Order and to extend the time limit of the LOU (which is now expired) so that the parties can continue to negotiate. It argues that the Employer has engaged in “bad faith bargaining” akin to how the concept is applied under the LRA. It asks the Tribunal to direct the Employer to withdraw its insistence on the job-to-job method of comparison and to withdraw its rejection of the median job rate. It also asks the Tribunal to declare the pay equity plan that the Employer unilaterally posted to be invalid. In the alternative to all of this, it asserts that the parties are in a maintenance situation, and the Employer must therefore provide it with the information necessary to determine whether the Employer has maintained pay equity under section 7 of the Act.

32. The Employer argues that the LOU represents the parties’ agreement to create a new pay equity plan. It points out that, pursuant to the LOU, the JPEC: 1) agreed to a new GNCS; 2) negotiated a new questionnaire to gather data; 3) identified job classes in the bargaining unit; 4) agreed on gender dominance; and 5) agreed on point bands. It argues that all of these things support a finding that the parties agreed to negotiate a new pay equity plan. It asserts that the LOU is akin to giving notice under section 14.1 of the Act when there are “changed circumstances.” It argues that there is no dispute between the parties that the certification of UWOFA constituted changed circumstances under the Act.

33. The Employer acknowledges that, because the parties had already achieved pay equity under the Act, they were technically in the maintenance phase. However, it denies that the procedure under the LOU constituted a mere maintenance exercise. It argues that because UWOFA refused to engage with the Employer after the Review Officer’s June 14, 2016 Order, the Employer was obligated to comply with that Order and complete the pay equity plan.

34. The Employer argues that the GNCS was a complex process and, though it was a form of proportional analysis, the Employer denies that the parties used a typical proportional analysis methodology as UWOFA suggests. It also argues that there is no clarity about what the parties meant by the term “median rate” because, in the Employer’s view, there are different ways to apply that concept.

35. The Employer argues that after spending approximately two years negotiating under the LOU, UWOFA decided to “dig in” by demanding the proportional analysis and median rates because it “did the math” and realized that this was the most financially advantageous course of action for its members. It maintains that, through its actions, UWOFA was content to do away with the 1990 Plan but only wants to resurrect it for the two elements: the proportional value and the median rate.

36. The Employer asserts that the parties should be held to their bargain unless it violates the Act. It argues that the LOU (which the parties extended several times during the process) has expired. In the absence of an agreement, the duty to maintain pay equity falls to the Employer. The Employer maintains it did not want to undermine all of the JPEC’s achievements. Therefore, it proceeded to post a new plan incorporating the agreed upon terms as well as a job rate representing the highest rate in the classifications and the job-to-job method of comparison, both of which it asserts are consistent with the requirements under the Act.

37. The Employer points out that the Tribunal does not have the jurisdiction to order many of the remedies UWOFA requests. Specifically, the Tribunal cannot direct the parties to extend the LOU, which was negotiated under their Collective Agreement.

38. The Employer argues that it was surprised by the position that UWOFA was taking when the impasse arose and suggested that UWOFA was “waiting in the weeds” and sprung this on the Employer unexpectedly.

39. In reply, UWOFA emphasizes that the Review Officer’s June 14, 2016 Order essentially extended the LOU (which had already expired) by requiring the parties to “complete a pay equity agreement” within 90 days of that Order. It argues that the Employer wants to rely on the Review Officer’s June 14, 2016 Order, which is based on the operation of the LOU, while at the same time arguing that the Tribunal cannot order the extension of the LOU if it finds it necessary to revoke the Review Officer’s June 14, 2016 Order. It suggests that the Employer only wishes to apply the LOU to the extent that it suits the Employer.

40. Although UWOFA agrees that the parties were in a “changed circumstances” scenario, UWOFA argues that they were not required to negotiate a new plan because nobody has asserted that the changed circumstances rendered the 1990 Plan “no longer appropriate,” as required under section 14.1 of the Act. It argues that the only changed circumstances aspect that was operational was the requirement in the Tribunal’s case law to split an existing pay equity plan upon the certification of a bargaining agent.

41. UWOFA argues that the LOU would have to include much clearer language in order for it to require switching to the job-to-job method. It acknowledges that there were discussions about the job-to-job method and respecting the median rate, but emphasizes that there were no agreements respecting these issues.

42. UWOFA argues that all of the things that the parties negotiated leading up to the impasse are equally consistent with maintaining pay equity. It acknowledges that it formed the opinion that the proportional value methodology and the use of median rates would be better for its members. It points out that the Employer was also motivated by financial interests in the positions it took. It denies that there was a disconnect respecting the meaning of the term “median rate.”

43. UWOFA argues that the parties entered into an agreement to review and recommend changes, not to re-achieve pay equity. It asserts that in the end there was no consensus between the parties.

ANALYSIS

44. Neither party has suggested that the 1990 Plan was no “longer appropriate” in accordance with section 14.1 of the Act. Therefore, the parties were not required to amend the 1990 Plan. It is important to note at this juncture that even if one of the parties had asserted that the 1990 Plan was no longer appropriate, that would not have triggered a requirement to negotiate an altogether new plan, which is what the Employer maintains the parties were doing. They would have only been required to amend the existing plan to address those aspects that rendered it no longer appropriate.

45. Through the operation of section 14.1 of the Act and the Tribunal’s case law, once UWOFA was certified to represent the librarians and archivists on September 15, 2004, the only action the parties were required to take was to split the 1990 Plan so that, on a going forward basis, there would be a pay equity plan that applied only to the members of UWOFA-LA (separate from those applicable to other employees outside of the bargaining unit) (St. Josephs Villa (1993), 4 P.E.R. 33 at paragraph 25 and Ottawa Board of Education (No. 2) (1996), 7 P.E.R. 9, 1996 CanLII 7947 (ON PEHT)). At the same time, as UWOFA acknowledges, this is not a case in which UWOFA is asserting that the Employer failed to maintain pay equity under the Act.

46. Based on the foregoing, we find that the LOU goes beyond the strict requirements of the Act. The parties entered into it through the bargaining process respecting their Collective Agreement. It is trite that the Act sets out minimum requirements only. There is no evidence to suggest that the minimum requirements of the Act have not been adhered to in the circumstances of this case. Consequently, there is nothing that the Tribunal can do to resolve the issues that have arisen in this case because the Act did not require the parties to do any of this.

47. We also find that the LOU speaks for itself. The voluminous notes and correspondence upon which the parties attempted to rely in support of their respective positions concerning whether they were negotiating a new pay equity plan or simply engaged in maintenance were of no assistance. The only conclusion that can be arrived at is that there was no consensus or meeting of the minds on those points. All the parties agreed to do was to have the JPEC review the 1990 Plan and recommend changes to the parties. Those changes were subject to being accepted and adopted by the parties. Each party was prepared to engage in the process under the LOU until the financial implications became apparent, at which point they each “dug in” and insisted upon the terms most favourable to their own interests. The LOU itself does not definitively support either parties’ position. Ultimately, there were no final recommendations (much less acceptances of final recommendations) since the process ended at an impasse. We therefore disagree with the Review Officer’s finding that the parties “agreed to develop a new Pay Equity Agreement for the bargaining unit.”

48. This is an entirely different situation from Brampton Public Library Board, [1994] O.P.E.D. No. 37 (QL) (March 18, 1994). In that decision, the parties negotiated a pay equity plan that used male comparators outside of the employer’s establishment, which was not strictly required under the Act. When the union later complained that the employer had permitted a wage gap to widen between the female job classes and these male comparators, the Tribunal rejected the employer’s assertion that it was not required to address the wage gap since it could have posted a pay equity plan without male comparators in the first place. The Tribunal found that, although the pay equity plan exceeded the requirements of the Act, it nonetheless constituted a pay equity plan under the Act, and the employer had to fulfill its maintenance obligations in respect of it.

49. The Brampton Public Library Board, supra, decision is distinguishable from the instant case because it involved a negotiated pay equity plan that included aspects that went beyond the strict requirements of the Act. The parties in the instant case have not entered into a pay equity plan pursuant to the LOU. The Brampton Public Library Board decision would have applied here if the parties in the instant case had entered into a new or amended pay equity plan pursuant to the LOU (even though not strictly required to do so) and then in the future the Employer, for example, sought to resile from it for whatever reason.

50. Similarly, we find that the decision of Windsor-Essex, supra, is not of assistance. In that decision, the employer and union implemented a pay equity plan using the proportional method of comparison in 1990 (which was later legislated into the Act in 1993). The issue before the Tribunal was whether, in conducting their quinquennial maintenance review, the parties agreed to use a combined methodology (job-to-job and proportional) instead of proportional value. The Tribunal found that it was not facing a scenario which required the employer to negotiate a new or amended plan under the Act. The employer had already achieved pay equity. Therefore, it was under no obligation to give preference to the job-to-job method of comparison based on the relevant provisions of the Act (see sections 21.2, 21.4 and 5.1). It also found that the parties had not invoked section 14.1. It concluded that in the absence of an agreement to that effect, nothing compelled the employer to use the job-to-job method of comparison.

51. This decision is not applicable to the instant case. There was no agreement at issue in Windsor-Essex, supra, that is comparable to the LOU. In the instant case, the parties agreed to have the JPEC explore their pay equity situation and to make recommendations. However, the JPEC did not get to the point of making final recommendations and the parties never agreed on how they would move forward. They could have ultimately agreed to maintain the 1990 Plan (as UWOFA appears to assert), or to enter into a new plan (as the Employer asserts), or to an amended one. However, because this process was not required under the Act, it is not appropriate for the Tribunal to impose one of the alternatives being advanced by the parties. The Tribunal does not have any information to suggest that the 1990 Plan was not already in compliance with the Act (nor is that issue properly before the Tribunal). Significantly, there is nothing to suggest that engaging in the process under the LOU was necessary in order for the Employer to meet its maintenance requirements under section 7 of the Act.

52. Based on the foregoing, we find that the Review Officer’s Order must be revoked. Since the Employer has already posted an amended plan (without UWOFA’s input), we declare that amended plan to be invalid.

53. There is no dispute between the parties that since pay equity has been achieved, the parties are in a maintenance situation. UWOFA argues that the Tribunal should order the Employer to provide it with the information it requires in order to determine whether pay equity has, in fact, been maintained in respect of the 1990 Plan.

54. We find that it would not be appropriate for the Tribunal to make such an order because the request does not arise out of the Review Officer’s Order. The issue before Review Services was not a complaint that UWOFA asked the Employer for the information necessary to assess whether the 1990 Plan had been maintained, and the Employer refused to do so. Therefore, there is no basis for the Tribunal to make an order in this regard. There is nothing to prevent UWOFA from requesting this information from the Employer if it sees fit and then taking necessary actions under the Act if it believes the Employer is not fulfilling its obligations under the Act.

55. Although UWOFA has requested various remedies, many of which the Employer asserts go beyond the Tribunal’s jurisdiction, we find that there are no other remedies that ought to be ordered, given our finding that the LOU constituted a procedure that went beyond the strict requirements of the Act.

56. We note that the parties mentioned that, at some point, a policy grievance was filed as contemplated under the LOU. We heard no evidence respecting whether or how that grievance was resolved.

DISPOSITION

57. The Review Officer’s June 14, 2016 Order is revoked.

Dated at Toronto this 28th day of November, 2018.

“Roslyn McGilvery”

Roslyn McGilvery, Vice-Chair

“Carla Zabek”

Carla Zabek, Member

“Carol Phillips”

Carol Phillips, Member