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

Before: M. David Ross, Chair, Carol Phillips and Carla Zabek, Members

Decision of the Tribunal: June 1, 2022

1. This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7, as amended, (“the Act”), in which it was alleged that the respondent 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”).

2. This matter has an extensive history. On January 21, 2016, the Tribunal (differently constituted) issued its Participating Nursing Homes, 2016 CanLII 2675 (ON PEHT) decision (“the 2016 decision”) after hearing approximately thirty days of evidence.

3. In that decision, the panel (differently constituted) found that the $1.50 Plan was not compliant with the Act, and the parties were directed to establish a proper pay equity plan that uses a gender-neutral comparison system (“GNCS”).

4. At paragraph 114 of the 2016 Decision, the Tribunal wrote:

5. In large part, it seems to us, the Homes’ and the Unions’ arguments on maintenance failed to take account of the need to assess whether there had been any changes in the value of the work performed in either or both of the seeking employer’s and the proxy employer’s establishments, because the steps they took in developing the Proxy Plans do not readily allow for the ongoing meaningful measurement of that value. The Proxy Plans were based on the assumption that what was then the HCA (and is now a PSW) not only possesses similar skills regardless of whether they worked in a Municipal Home or a Home, but also performed the same duties under the same working conditions for a similar resident population; and that the work was of the same value to the Municipal Employers and to the Homes. The parties did not agree to a GNCS and they did not evaluate any job classes. Even if the assumptions on which the Proxy Plans were predicated were accurate at the time, we cannot be certain that they remain so. Indeed, the Unions’ evidence and arguments about the changes to the skill, effort, responsibility and working conditions of their jobs as compared to those performed in the Municipal Homes, where they suggest that resident acuity may not be as high or where staffing levels are greater, suggest that the assumption no longer holds true. Furthermore, we are cognizant that our analysis of the scope of the maintenance obligation where pay equity was achieved using the proxy methodology of comparison must be capable of application to all public sector workplaces in the Province where a “seeking employer” declaration was made. That includes ones where the key female job class’ duties may not be so similar to the jobs performed in the proxy establishment, as is the case in the Homes and to ones where there are no collective agreements to consult. Any maintenance analysis cannot ignore the ongoing monitoring of changes in the value of the jobs, whether in the Homes alone (where the Homes say the focus should be) or in the proxy establishments as well (where the Unions say the focus should be).

[emphasis added]

5. At paragraph 183 and 184 of the 2016 Decision, the Tribunal held that in the absence of a GNCS, it remains impossible to evaluate whether pay equity has been maintained in accordance with the Act:

6. 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.

7. 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 on 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.

[emphasis added]

6. At paragraph 185 of the 2016 Decision, the Tribunal directed the parties to negotiate and endeavor to agree to an amendment to the pay equity plan that uses a GNCS as required by the Act, and to determine whether any maintenance adjustments were required:

7. 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.

8. By decision dated July 9, 2018 (“the July 2018 Decision”), the Tribunal held that it does not have jurisdiction over any disputes regarding the substance of the GNCS plan as directed by its 2016 Decision. The basis for this conclusion is the Tribunal’s well-established jurisprudence that it does not have jurisdiction over any issue that Review Services has not first had the opportunity to address. At paragraphs 10 – 12 of the July 2018 Decision, the Tribunal held:

9. 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.

10. 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.

11. 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.

12. On January 9, 2020, the Tribunal once again directed the parties to comply with the 2016 direction:

13. Especially given the emphasis placed on delay during the parties’ submissions, it is concerning to the Tribunal that there is no evidence of any steps that have been taken by the parties towards establishing an amended pay equity maintenance plan that uses a GNCS since the Tribunal issued its July 2018 decision. ONA submitted that some of this delay is explained by “confusion” around the effect of the Tribunal’s July 2018 and November 22, 2018 decisions.

14. This decision should clarify any confusion about the next steps that the Tribunal expects the parties to undertake. If the parties reach an impasse about the substance of the amended plans, the Tribunal was clear in the July 2018 decision that it does not have jurisdiction over that dispute. In arriving at this conclusion, the Tribunal applied its well-established jurisprudence that it does not have jurisdiction to decide the substance of issues that have not been before the Pay Equity Commission Review Services (“Review Services). As recently as November 20, 2018, the Tribunal confirmed this principle in Brockville General Hospital, 2019 CanLII 39379 (ON PEHT), citing the July 2018 Decision specifically.

15. In Tribunal File No: 3696-10-PE, ONA and the PNH are directed to recommence negotiating a GNCS forthwith. The parties are directed to write to the Tribunal as soon as they agree on a GNCS, or by no later than April 30, 2020, whichever is earlier, to confirm the progress of those negotiations. If the PNH and ONA are unable to resolve impasses between them regarding the substance of the GNCS, they are directed to file an application to Review Services, and to write to the Tribunal confirming that this has occurred.

16. On November 8, 2021, the Tribunal repeated this direction. At paragraphs 4 and 5 the Tribunal held:

17. As stated in the January 9, 2020 decision, the processes that must be completed first, do not require the Tribunal’s direction about how they are to conduct a “maintenance by proxy” method. To use an analogy, it is the Tribunal’s view that the “skeleton” of these plans have to be built and completed by the parties before they can be “fleshed out” using a “maintenance by proxy” method. ONA and the PNH have not yet agreed to a GNCS tool, which is a preliminary step to any of these other considerations. The SEIU is further along than ONA’s process, but again, they need to continue to work with the PNH on the internal job descriptions and evaluations before moving the process to the external “proxy” stages.

18. The Tribunal understands and appreciates COVID-19 affected the parties’ ability to continue their work on these processes, especially given that these homes are in the long-term care sector which was disproportionally impacted especially at the outset of the pandemic. However, this does not negate the requirement that this work must be completed before the Tribunal will provide direction about how the “proxy maintenance” process will occur. Accordingly, we are in the same position as we were in January 2020, with the exception that we have clarity that a “maintenance by proxy” method will be implemented once the internal steps are completed. To introduce additional steps at this stage can only serve to distract the parties from the work that has to be completed as soon as possible.

[emphasis added]

10. The parties provided updates to the Tribunal in accordance with the November 8, 2021 decision. Unfortunately, the parties have not even agreed to a GNCS that should be used.

11. It has been six years since the Tribunal directed the parties to amend its pay equity plan in a using a GNCS that complies with the Act, and eleven years since this application was filed. The affected employees in female job classes remain in the dark about whether they have been underpaid contrary to the Act, and if so, by how much.

12. It is obvious that the parties are unable to resolve these issues between themselves as an unreasonable amount of time has passed with little to no progress being accomplished. Therefore, pursuant to the January 9, 2020 decision, the parties are directed to file an application with Review Services to resolve the substantive differences regarding their GNCS.

13. This matter will be held sine die pending the outcome of the Application to Review Services that has been directed above.

"M. David Ross" M. David Ross, Chair

"Carol Phillips" Carol Phillips, Member

"Carla Zabek" Carla Zabek, Member