Human Rights - OPEHT

The Pay Equity Office referred a matter to the Tribunal regarding the employer's failure to comply with a Review Officer's Order.

The employer admitted non-compliance but cited funding constraints and requested a stay pending discussions between its association and the government.

The Tribunal declined to grant a stay, noting the Pay Equity Office did not consent and there were no active settlement discussions.

Finding that the employer failed to meet its onus to prove compliance, the Tribunal ordered the employer to comply with the Review Officer's Order.

The Pay Equity Office referred a matter to the Tribunal alleging that the respondent employer failed to comply with a Review Officer's order to pay out pay equity adjustments.

The respondent admitted non-compliance but argued it lacked the ability to pay due to a lack of government funding and challenged its inclusion in the broader public sector.

The Tribunal noted the respondent had previously raised and withdrawn these same arguments, found no basis to grant the requested relief, and indicated it would order compliance unless the respondent provided a foundation for a hearing by a specified date.

The Ontario Northland Transportation Commission (ONTC) applied to object to a Review Officer's Order, arguing that the Pay Equity Act did not apply to it because it is a federal undertaking.

The Tribunal first ruled that the Pay Equity Office did not have standing to participate as a party, as it lacked a direct and substantial interest in the constitutional applicability of the Act.

Based on an agreed statement of facts, the Tribunal then determined that the ONTC is a federal undertaking, rendering the Pay Equity Act inapplicable to it.

The Review Officer's Order was rescinded.

The applicant employer objected to a Review Officer's order, arguing that the Pay Equity Act does not apply to its operations because they are subject to federal legislative authority.

The Tribunal noted that this constitutional issue was not canvassed at Review Services, raising a question about whether the Tribunal could hear the matter before the Review Services process was exhausted.

The Tribunal issued directions requiring the parties and the Pay Equity Office to provide submissions on whether the Tribunal has jurisdiction to determine the preliminary constitutional issue.

The Employer brought an application regarding a Review Officer's Order concerning the calculation and allocation of the 1% of payroll available for pay equity adjustments between 1990 and 1997.

The Tribunal directed the Employer to devote 1% of the bargaining unit's payroll to create a pool for these adjustments and set out a specific formula for calculating retroactive payments.

The Tribunal also ordered the implementation of the pay equity adjusted rates by March 23, 2002, and revoked the Review Officer's Order.

The parties reached a written settlement of the matters in dispute regarding a pay equity plan, replacing the plan previously ordered by the Review Officer.

In accordance with section 25.1 of the Pay Equity Act, the Tribunal noted the settlement was binding and ordered that the agreed-upon pay equity plan be posted in the workplace forthwith.

Various groups of employees sought standing to participate in a hearing regarding the revocation or enforcement of a Review Officer's order directing the employer and union to conclude a pay equity plan.

Prior to the hearing, the employer and union reached a settlement on the pay equity plan.

The Tribunal held that the employee groups did not have standing to seek enforcement of the order or to participate in the revocation hearing independently of their bargaining agent.

As the employee groups and the Pay Equity Office were not parties to the revocation hearing, the settlement between the employer and union was binding and concluded the proceedings.

The request for compensation by the employee groups was denied.

The Hospital for Sick Children objected to two Orders by a Review Officer that re-evaluated the female job classes of registered nurse (RN) and assistant clinical co-ordinator (ACC) to higher grades under the Pay Equity Act.

The Nurses sought to uphold the RN Order or, alternatively, argued the Hospital's job evaluation system was gender biased.

The Pay Equity Hearings Tribunal majority found the Nurses failed to prove the system was gender biased.

Applying the system, the majority varied the RN Order, finding the four RN positions evaluated fell into two distinct job classes (Grades 10 and 11), and revoked the ACC Order, returning it to Grade 12.

The dissenting Chair would have upheld the RN Order placing them in Grade 12.

During a pay equity hearing, the Tribunal posed a question to the parties regarding the relevance of actual hours worked when determining the 'job rate' for female job classes and male comparators who are all paid an annual salary.

The Tribunal ruled that actual hours worked are irrelevant to the determination of job rate in these circumstances.

Converting an annual salary to an hourly rate based on actual hours worked would introduce an inappropriate element of incumbent performance into the calculation of the rate for the job class.

The Branch Affiliates brought a motion to non-suit the York Region Board of Education at the close of the Board's case.

The Pay Equity Hearings Tribunal dismissed the motion without requiring the Branch Affiliates to be put to their election.

The Tribunal also directed the parties to prepare legal submissions on the relevance of hours worked to the determination of 'job rate' under the Pay Equity Act when the job classes receive an annual salary.

The employers applied to the Tribunal alleging a change in the identity of the employers under the Pay Equity Act.

The employers argued that the Tribunal should determine who the employer is at different points in time due to changed circumstances, even though no pay equity plan had been posted.

The Tribunal held that it lacked jurisdiction to inquire into changed circumstances absent an existing pay equity plan.

The existence of a plan is a precondition to examining whether changed circumstances render the plan no longer appropriate.

The applicant applied to the Tribunal regarding a Review Officer's Order.

Prior to the hearing, the parties reached an agreement on an amended pay equity plan and jointly requested that the Tribunal revoke the Order.

The Tribunal declined to issue the consent order, noting that the Memorandum of Settlement did not disclose the basis for certain conclusions regarding job rates, gender predominance, and comparability of job classes.

The Tribunal requested that the parties provide specific information in writing or schedule a hearing day before it would consider revoking the Order.

The Ontario Nurses' Association applied to the Tribunal requesting an order that the Brant County Health Unit direct more than one percent of its annual payroll towards pay equity adjustments to accelerate the closing of a large wage gap.

The Tribunal dismissed the application, finding that under section 13 of the Pay Equity Act, it has no discretion to order an employer to spend more than one percent of its payroll per year on pay equity adjustments, except in specific circumstances not present in this case.

The Tribunal directed the employer to post the amended pay equity plan and make adjustments in accordance with the statutory framework.

The employer applied to the Pay Equity Hearings Tribunal objecting to a Review Officer's order regarding the calculation of compensation for female job classes.

The Tribunal held that a shift premium available to male comparators must be provided to female job classes on the same terms, as the female classes' existing shift premium was illusory due to scheduling preconditions.

The Tribunal also found that a paid meal break for female job classes was not a benefit to be included in compensation, as employees remained under the employer's control.

Finally, the Tribunal ruled that the cost of maintaining pay equity and preventing the wage gap from widening cannot be included in the 1% of payroll dedicated to closing the existing wage gap.

The Employer applied to the Pay Equity Hearings Tribunal objecting to a Review Officer's order that found three female job classes (Packer, Packaging Machine Operator B, and Sample Room) were of equal or comparable value to three male job classes (Dough Feeder, Janitor, and Receiver).

The Employer alleged the Union failed to bargain in good faith by rejecting the initial joint evaluations, while the Union alleged the Employer intimidated female committee members.

The Tribunal dismissed both preliminary allegations.

On the merits, the Tribunal found that the joint committee's collection of job information was incomplete and its application of the evaluation system was not gender-neutral, as it failed to consistently value skills and effort characteristic of women's work, such as manual dexterity, visual concentration, and multi-tasking.

Applying the evaluation tool to the corrected job information, the Tribunal upheld the Review Officer's findings that the female job classes were of equal or comparable value to the male job classes and ordered the parties to negotiate a pay equity adjustment schedule.

The applicant union filed complaints alleging that the SKEW job evaluation system proposed by the respondent hospitals was not gender neutral and failed to accurately capture and value nursing work.

The Tribunal found that the SKEW system's job fact sheet and valuing tool did not meet the standard of gender neutrality required by the Pay Equity Act, as they failed to make visible and appropriately value the complex skills, effort, responsibilities, and working conditions inherent in nursing.

The Tribunal ordered the parties to negotiate and design a new gender neutral comparison system tailored to accurately capture the job content of the nursing and male comparator job classes in the hospitals.

The union applied to the Tribunal regarding a Review Officer's order on a pay equity dispute.

The parties disagreed on whether they had previously reached a binding agreement on job evaluation weightings and point totals.

The Tribunal found that the agreement on weightings was binding as it had been ratified by the employer's Board of Trustees, but the point totals were not binding as they had not been ratified.

The Tribunal ordered the parties to determine the final point totals for the disputed job classes before it would decide the issue of comparability.

The applicant union and respondent employer jointly requested that the Tribunal vary a Review Officer's order regarding the use and cost-sharing of a gender-neutral job evaluation system under the Pay Equity Act.

The parties sought to delete the requirement to share costs equally and to specify the use of the SES system.

The Tribunal varied the order as requested, noting that it has jurisdiction to issue consent orders where the requested relief is within its discretion and does not contravene the Act.

The Tribunal also noted that such joint requests could be processed via written submissions to avoid the delay and expense of an oral hearing, provided sufficient evidence and an agreed statement of fact are filed.

The Pay Equity Office (P.E.O.) applied to the Tribunal seeking to enforce a Review Officer's order against the employer and the union.

The employer and the union had previously settled their dispute regarding the pay equity plan and argued that the P.E.O. lacked standing to challenge their settlement or enforce the order.

The Tribunal held that the P.E.O. is not a party to proceedings under subsection 32(1) of the Pay Equity Act and does not meet the test for participation under the Statutory Powers Procedure Act.

The Tribunal concluded that the P.E.O. has no statutory jurisdiction to review settlements or enforce orders in these circumstances, and dismissed the application for lack of standing.

The Ontario Nurses' Association applied for reconsideration of a previous Tribunal decision and sought remedies for the Employer's failure to comply with an order to negotiate a pay equity plan.

The Employer admitted non-compliance, citing financial constraints.

The Tribunal varied its original order, finding that the Employer's failure to bargain made the previous remedy inappropriate.

The Tribunal directed a review officer to prepare the pay equity plan, starting with the Union's proposed comparison system.

The Tribunal also ordered the Employer to pay compensatory damages, including the costs of pre-testing the system and the review officer's costs in preparing the plan, but declined to state a case for contempt or award legal costs.

One member dissented on the extent of the compensatory damages.