PAY EQUITY HEARINGS TRIBUNAL
PEHT Case No: 2028-15-PE
Ontario Secondary School Teachers' Federation on behalf of the Educational Assistants Bargaining Unit, Applicant v Simcoe Muskoka Catholic District School Board, Respondent
PEHT Case No: 2029-15-PE
Ontario Secondary School Teachers' Federation on behalf of the Office and Clerical Bargaining Unit, Applicant v Simcoe Muskoka Catholic District School Board, Respondent
BEFORE: Patrick Kelly, Alternate Chair
DECISION OF THE TRIBUNAL: February 27, 2019
1. Section 4.2(1) of the Statutory Powers Procedure Act permits a panel of one to issue this decision.
2. These are applications under section 22 of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”).
3. The Tribunal issued a final decision in these matters on December 17, 2018 (“the Decision”). The remedies ordered were as follows:
For the reasons stated earlier in this decision, the Tribunal declares that the Board violated its duty to bargain in good faith and to endeavour to reach an agreement to amend the pay equity plans with OSSTF. The Tribunal is prepared to provide further remedial relief (described below) in order to facilitate the resumption of negotiations between the parties and to ameliorate the Board’s failure to bargain in good faith. In my view, however, it is not appropriate for the Tribunal to direct the result of those negotiations, as OSSTF effectively requests in the orders it seeks. Rather the parties should finish what they started, pursuant to the process to which they agreed they would be bound.
To that end, the Tribunal orders the parties forthwith to resume their negotiations pursuant to the Terms of Reference applicable to each unit, based upon the final ratings determined by the respective JJECs. The Board is not entitled to raise any process concerns relating to the conduct of the JJECs in the course of these resumed negotiations. Moreover, in the endeavour to reach agreement on the appropriate male comparators for the amended pay equity plans, the Board is not entitled, absent a rationale that does not run afoul of its obligations under the Act, to bargain to impasse maintaining the same percentage thresholds in respect of the new male comparators that were negotiated for the former male comparators in the 2000 pay equity plans.
The parties shall have until January 31, 2019 (or such other period as they may mutually agree) to reach agreement on amended pay equity plans for the two bargaining units. If the parties are unable to reach agreement within the prescribed period, the Tribunal, pursuant to subsection 25(1)(a) of the Act, orders that a Review Officer prepare amended pay equity plans for the Board’s establishment. Since I have found that the Board bears responsibility for having de-railed the negotiations in 2010, I order the Board to pay all of the costs of preparing the amended plans, including any costs as a result of the
Review Officer retaining the services of such experts as he or she considers necessary to assist in the preparation of the amended plans.
4. On February 22, 2019, the Tribunal received correspondence from counsel for the applicant, requesting that the Board extend the time for the filing of a request for reconsideration of the Decision. After describing the remedial relief ordered by the Tribunal in the Decision, counsel wrote:
Accordingly, the parties entered into negotiations, by mutual agreement extending those to February 1, 2019. By that date, however, the Employer had communicated positions that made further negotiations impossible.
In short, it is the Federation's position that the Employer's conduct in these negotiations amounts to continued bad faith negotiations, directly in contradiction to both the Act and the Order of this Tribunal.
The Federation therefore intends to seek reconsideration of the Decision (specifically, the remedy granted), on the basis of the Employer's continued bad faith bargaining. In aid of that reconsideration and in light of these specific facts, the Federation will need to prepare sufficient affidavit evidence to illustrate the impugned conduct. Further, because the 20-day period set out in Rule 81 had elapsed before the Employer's ongoing breach of the Act and the Order became clear, we submit that these are appropriately unique circumstances in which to grant the extension sought.
We seek an extension of time to April 1, 2019 to file for reconsideration of the Decision. For clarity, it is the Federation's position that the Employer's conduct constitutes a sufficiently compelling and extraordinary circumstance to justify the suspension of the rule of finality - per the Tribunal's jurisprudence on reconciliation [sic]. We seek this extension so that we can fully present our client's case in support of this position.
5. In my view, it would not be appropriate to consider granting an extension in advance of seeing the content of the request for reconsideration. Moreover, the Tribunal may wish to obtain the submissions of the responding party concerning any objection it might have to the applicant’s request for an extension.
6. Accordingly, the Tribunal declines to make a determination whether to grant an extension to file the request for reconsideration until such time as the applicant actually files and delivers a request for reconsideration.
Dated at Toronto this 27th day of February 2019.
“Patrick Kelly” ____
Patrick Kelly, Alternate Chair