Ontario Nurses' Association v. Participating Nursing Homes, 2018 CanLII 64924

Ontario Pay Equity Hearings Tribunal

PEHT Case No: 3696-10-PE

Ontario Nurses' Association, Applicant v "Participating Nursing Homes", Respondent v Ministry of the Attorney General, Intervenor

PEHT Case No: 1507-11-PE

Service Employees International Union, Local 1, Applicant v "Participating Nursing Homes", Respondent v Ministry of the Attorney General, Intervenor

BEFORE: Mary Anne McKellar, Chair, and Members Catherine Bickley and Carla Zabek

DECISION OF THE TRIBUNAL: July 9, 2018

Introduction

1. These are applications under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”), in which it was alleged by the applicant unions (“ONA” or the “SEIU”) that the responding party nursing homes (“the Homes”) had failed to maintain pay equity in respect of the bargaining unit employees subject to pay equity plans concluded pursuant to Part III.2 of the Act (“the Proxy Plans”).

The Decision of January 21, 2016

2. By decision dated January 21, 2016, the Tribunal interpreted how pay equity should be maintained in respect of a proxy plan, and dismissed a constitutional challenge premised on the notion that such interpretation contravened the equality guarantees in the Charter. Having done that, the Tribunal was nevertheless unable to determine whether or not pay equity had been maintained for the employees covered by the Proxy Plans in these workplaces, because the parties had not followed the statutory process in concluding their Proxy Plan.

3. In the final section of its decision, under the heading “Next Steps”, the Tribunal wrote:

VIII. NEXT STEPS

181. We have already briefly described the circumstances in which these Proxy Plans were negotiated, and set out the pertinent portions of the ASF, and a summary of the testimony. We do not need to repeat any of that again.

182. We want to be very clear about several things. We are not criticizing these workplace parties for negotiating a solution to the pay equity issues that confronted them in the spring of 1995. Their original Proxy Plans are deemed approved, and have not been attacked in this proceeding. Regardless of the fact that they did not follow the steps outlined in Part III.2 of the Act, they may well have reached the same result in terms of adjustments that they would have reached had they done so. The fact remains that, however practical their solution in 1995 was, because they did not follow the proxy methodology as set out in Part III.2 of the Act, they are now faced with significant challenges in determining the extent of any additional adjustments that pay equity maintenance may require.

183. We do not think it is possible to conclude on an a priori basis that any difference in pay, or even any differential increase in pay, as between PSWs (or RNs) employed in the Homes compared to PSWs (or RNs) employed in the Municipal Homes means that pay equity has not been maintained in the Homes. The value of the job classes must be a component of any maintenance exercise.

184. Although the $1.50 Plan may have achieved pay equity, it did so without applying a GNCS. So long as the skill, effort, responsibility and working conditions of the female job classes in the Homes remained unchanged, and they received the same percentage compensation increases, the absence of a GNCS had no impact on pay equity maintenance. We have already referred to the uncontradicted evidence before us that there have been significant changes in the clientele and the duties performed in the Homes that may well impact the value of the job classes. Those changes make the $1.50 Plan inappropriate because the pay equity consequence of them can only be ascertained by evaluating the job information using a GNCS, which the Proxy Plans lack. In the unionized environment the selection of a GNCS and its application are matters that the Act contemplates will be negotiated between the employer and the union.

185. Pursuant to our authority under section 25(2)(g) of the Act, the parties are directed to negotiate and endeavor to agree on an amendment to the $1.50 Plan to stipulate a GNCS, and to apply that GNCS to determine whether any maintenance adjustments are required.

186. This matter is adjourned sine die for a period of nine months to permit the parties to negotiate pursuant to the above direction.

Applications for Judicial Review

4. ONA, the SEIU and the Homes all filed applications for judicial review of the January 21, 2016 decision, but did not pursue them while they attempted to negotiate a resolution to their differences.

5. We therefore understand that the parties complied with the Tribunal’s direction and undertook negotiations. They requested and were granted further extensions of the sine die period in which to do so. The parties in Case No. 1507-11-PE (the SEIU and the Homes) had recently sought a further extension.

6. The parties (ONA and the Homes) in Tribunal File No. 3696-10-PE advised the Tribunal that they reached an impasse on certain issues, and requested that the Tribunal reconvene the hearing to adjudicate on matters relating to the substance of their negotiations, as opposed to the process.

7. Subsequent to that request, the Tribunal convened a Pre-Hearing Conference, following which ONA and the Homes filed certain submissions (described below). Following the filing of those submissions, the Tribunal has been advised that all of the applications for judicial review that had been held in abeyance are now proceeding.

The Issue of the Tribunal’s Jurisdiction

8. The Tribunal convened a Pre-Hearing Conference in File No. 3696-10-PE, following which written submissions were filed in which the parties set out why the Tribunal has jurisdiction to deal with the matters the parties wish to be the subject matter of the hearing. Essentially, they argue that the matters they wish to address are within the competence of the Tribunal to decide, and that by adjourning this matter sine die, the Tribunal remained seized of those matters.

9. The January 21, 2016 decision directed the parties to go back and do what they had failed to do when they concluded the Proxy Plans. The combination of sections 21.20, 14, 16, and 17 of the Act apply, and they contemplate that any bargaining impasse with respect to the provisions of a proxy plan will be the subject of a notification to a Review Officer, who is charged with investigating and endeavouring to effect a settlement, and if that is not possible, the Review Officer “shall by order decide all outstanding matters”. Only after that process has concluded, the plan reflective of the order has been posted, and an objection to it is made by the bargaining agent or the employer, does the Act contemplate that the Tribunal will consider any aspects of the Plan that remain in dispute.

10. This is not a case where the Tribunal can conclude that the Review Services Process has been exhausted. These parties have not benefitted at all from the assistance of a Review Officer in the preparation of their proxy plan, although an Officer may be able to settle some of their disputes, and has the authority to decide the rest. Moreover, the statutory mechanism is designed to reduce and focus the issues that may ultimately be in dispute before the Tribunal.

11. The Act does not contemplate that the Tribunal have originating jurisdiction over the substance of the provisions to be included in the proxy plan. Consistent with that approach, the January 21, 2016 order directed the parties to engage in the process of negotiating those substantive provisions, and adjourned the matter sine die to permit them to do so. In so doing, the panel remained seized only in respect of the implementation of that order to meet and negotiate, and not in respect of whether the substantive provisions complied with the Act, matters which the Act contemplates are dealt with in the first instance by Review Services.

12. It is not at all obvious that the Tribunal has jurisdiction over the substantive matters at issue between the parties, which have not been the subject of a Review Officer’s order. Even assuming the contrary, however, it is not appropriate to convene a hearing as requested by ONA and the Homes. The prospect of devoting the Tribunal’s resources to engaging in what will likely be a lengthy hearing in the absence of a first-level determination and without pleadings is troubling, particularly in circumstances where the very underpinning of the Tribunal’s authority to do so (its interpretation of the application of the Act’s maintenance obligation in the context of a proxy plan) is under challenge in the outstanding judicial review applications.

13. If the parties have indeed exhausted their negotiating options, it appears that the appropriate response from the Tribunal is to terminate these proceedings, which will allow the judicial review process to take its course, and which will also not preclude the parties from engaging in further negotiations or in seeking the assistance of Review Services.

14. Unless any party files written submissions on or before July 27, 2018 setting out any basis for an objection to the Tribunal’s doing so, these applications will be deemed terminated as of that date.

Dated at Toronto, Ontario this 9th day of July, 2018.

"Mary Anne McKellar" Mary Anne McKellar, Chair

“Catherine Bickley” Catherine Bickley, Member

“Carla Zabek” Carla Zabek, Member