PSGB# P-2016-0449; 2016-0616
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Courchesne-Godin et al
Complainant
- and -
The Crown in Right of Ontario (Ministry of Children and Youth Services)
Employer
BEFORE
Kathleen G. O’Neil
Chair
FOR THE COMPLAINANTS
G. Courchesne-Godin, L. Hunter, K. Turner
FOR THE EMPLOYER
Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel
HEARING
May 8, 2017 with written submissions concluded on June 8, 2017
D E C I S I O N
1This decision deals with two complaints relating to the pay of Ginette Courchesne-Godin, Lorri Hunter, Candace Prong and Kim Turner, all Administrative Assistants in Youth Centres. They claim that, since 2016, their pay has improperly excluded payments made to their unionized counterparts, in breach of their terms and conditions of employment, including equal pay for equal work. In the alternative, they claim pay adjustments in line with managers who are also excluded from collective bargaining. As well, they are of the view that their positions are not properly classified. The employer is of the view that they have been properly paid.
Factual Context
2As assistants to senior administrators in youth correctional centres, the complainants are excluded from collective bargaining due to the confidential nature of their duties in relation to labour relations and other matters. Nonetheless, certain elements of their pay have traditionally been linked to that of unionized staff represented in collective bargaining by the Ontario Public Service Employees Union (OPSEU), while other aspects have been linked to that of the Management Compensation Group (MCP), which covers excluded managerial employees. The complainants have come to see their situation as being shunted back and forth between the two groups, creating a negative impact on their compensation and benefits.
3In referring to public servants such as the complainants, terms such as “OPSEU parallel class” or the “Excluded Category” have often been used, and are used in this decision. As a recent source of the linkage of their pay to OPSEU rates, the complainants refer to a memo dated March 13, 2014, which reads in most relevant part as follows:
The salary ranges for employees in Excluded Category classes will be those set out in the attached salary schedules effective April 1, 2014, and employees in these classes will receive corresponding across-the-board (ATB) salary increases effective the same date.
Going forward, Excluded Category salary ranges in the attached salary schedules will be adjusted by a corresponding amount simultaneous with every Ontario Public Service Employees Union (OPSEU) salary range and salary adjustment after April 1, 2014, effective the same date when OPSEU salary range and salary adjustments come into effect. [emphasis added]
This memo reflects the contents of a Management Board of Cabinet Directive for Determination of Salary Range, Wage Ranges and Remuneration, Excluded Category 33-43 dated January 27, 2014, but with slightly different wording.
4Basic to the complainants’ case is the claim that they have not been granted the salary adjustments that their OPSEU colleagues received in 2016, which in their view, is in breach of the salary directive referred to just above. By contrast, the employer’s position is that members of the OPSEU bargaining unit received a lump sum, which does not qualify as a salary range or salary adjustment, and thus the salary directive was not breached.
5The context in which this dispute arises was marked by fiscal restraint policies which impacted both unionized and non-unionized public servants. For the unionized employees, collective bargaining lead to a Memorandum of Settlement between the Crown and OPSEU dated September 22, 2015, which froze wages for 2015 and 2016, and disallowed progression on the salary grids until the end of 2017. As part of the settlement, an across-the-Board salary increase of 1.4% was scheduled for January 1, 2017, but wages and progression on the grid were frozen for bargaining unit employees, so that the fruits of that increase would not be realized until 2018. Further, and central to the present complaint, bargaining unit employees employed on January 1, 2016, became entitled to a lump sum payment in the amount of 1.4% of their 2015 earned base salary less statutory deductions. This is the payment which the complainants see as a salary adjustment, but the employer sees as a payment separate from salary related to the other things that OPSEU gave up in that period, including wage increases and wage progression.
6The relevant wording of this Memorandum of Settlement is set out as Appendix B. The employer relies on the fact that there are provisions related to salary, but they are set out in a distinct section from the provisions as to the lump sum payment, which is further defined as not affecting an employee’s “base salary for any purpose whatsoever.” The complainants rely on the fact that the lump sum is calculated according to each individual’s salary, to support their argument that it should be considered a salary adjustment.
7The employer notes that although the excluded group did not receive the lump sum, they were eligible to move on the grid at a time when bargaining unit employees were frozen. Although this did not benefit the complainants individually, as they were at the top of their salary grids, it did benefit other members of the parallel classes.
8As for the non-unionized group, Secretary of Cabinet Steve Orsini issued a memorandum on December 15, 2015 addressed to “All OPS Managers and Non-Bargaining Specialists” on the subject of changes to Non-Bargaining Compensation for 2015-2016. The text of the memo acknowledges that since 2012, bargaining outcomes with the larger public sector unions had included four years of 0% increases and that salary ranges for managers and non-bargaining staff had been frozen since 2009, with a “hard freeze” on earnings at the 2011-12 levels, along with adjustments to benefits. The memo goes on to refer to compensation changes for 2015-16, which were summarized as follows:
- Ensure earnings do not fall below 2011-2012 levels;
- Provide a one time in-range movement for employees who are within the salary range for their position effective April 1, 2015;
- Provide an increase to salaries of 1.4% for those who are within the salary range for the position, effective January 1, 2016;
- Provide paramedical coverage of $750 per employee, as well as for each employee's eligible dependents, effective January 1, 2016.
This memo, which was not sent to the complainants and is not an official pay directive, went on to indicate that more information on these changes would be shared in the near future. The employer’s position is that the wage provisions in the memo were not applicable to the complainants, as they are not managers covered by the provisions of the MCP.
9On March 14 and June 15, 2016, the complainants filed these complaints.
Statutory provisions and Case Law
10Relevant provisions of the Public Service of Ontario Act (PSOA), Regulation 378/07, the Pay Equity Act, and the Employment Standards Act, as well as case law referred to in this decision are attached as Appendices for ease of reference.
The Preliminary Objection
11The Employer made a two-part preliminary objection asking that these complaints be dismissed at the outset, without a hearing on the merits. The first part of the employer's preliminary objection was to the effect that the complaint was filed too late. Regulation 378/07 pursuant to the PSOA requires that a complaint be filed within 14 days of the time the complainant became aware of the working condition or term of employment in issue. The first complaint was referred to the Deputy Minister on March 14, 2016, some 90 days after the changes to the MCP ranges were announced on December 15, 2015. Similarly, the one-time payment for OPSEU members contained in the Memorandum of Settlement was communicated broadly on October 30, 2015. The employer’s position is that the complaints are well out of time in respect of the timing of the announcements for each of the groups to which the complainants compare themselves. In light of the prevailing case law of the Board to the effect that there is no authority to extend these time limits, the employer asks that the complaints be dismissed. See, among many others, the Board’s decision in Hasted/BerezowskyOntario (Community Safety and Correctional Services), CanLII 7473 (ON PSGB) Jan 18, 2016 (Nairn).
12The second prong of the preliminary objection is that the remedy requested by the complainants, i.e. to be paid the one-time lump sum payment received by members of the OPSEU bargaining unit in 2016, is outside of the jurisdiction of the PSGB to order. This is put in the context that the complainants have not identified a term and condition of employment that exists and applies to them that has not been applied correctly, in that the payments that they request are not part of their contractual terms, in the employer’s view.
13Specifically, the employer submits that the salary provision applicable to the parallel class employees such as the complainants is that the schedules will be adjusted by a corresponding amount simultaneous with every OPSEU salary range and salary adjustment, but there is no pay provision applicable to them providing for the payment of a one-time lump sum. As noted, it is the employer's position that the lump sum payment sought by the complainants is neither a salary range adjustment nor a salary adjustment. As such, the Employer's submission is that the complainants have not identified an applicable term or condition of employment that the Board could enforce.
14The employer relies on the Board's decision in Hugh MacDonald et al v Ontario (Community Safety and Correctional Services), 2014 CanLII 76836 (ON PSGB), (O'Neil). In that case the Board was asked to remedy salary compression with Correctional Officers by reinstating a minimum 3% differential between the top level correctional officer salary and the bottom level Operational Manager salary. Counsel argues that this is analogous to the complainants' request in the current case for the one-time lump sum payment that bargaining unit employees received, which the employer characterized as a signing bonus.
15The Board found in the MacDonald decision that there was "no evidence of any policy, legislation, practice or other term or condition of employment that was in force at the time of the complaints which provides for the complainants to be paid in the manner they seek," and dismissed the complaint. The Board is invited to find, as it did in that case, that to award the remedy being requested would be tantamount to setting a new term or condition of employment which is beyond the Board's remedial jurisdiction.
16The complainants took a different view of the matter, emphasizing that the timeliness requirements in the regulation start from the time the complainants became aware of the situation which they say is a breach of their terms and conditions of employment. The complainants note that their first Notice of Proposal to File a Complaint was filed on March 14, 2016, fewer than 14 days after they learned of the 1.4% lump sum payment to OPSEU members and the 1.4% in-range salary adjustment for OPS managers and non-bargaining specialists.
17As well, the complainants see their complaint as timely as a continuing one, in that there are repeated or recurring instances of improper pay, any one of which may be regarded as starting the clock anew for the purposes of determining whether a grievance is timely. As such, the Complainants argue that the complaint was timely at the time it was filed, as a continuing pay complaint is timely with each passing pay period in which a correction is not made. In respect of the timeliness point, they rely on the following cases: Hasted v Ontario (Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB) (Nairn), Laird v. Ontario (Ministry of Community Safety and Correctional Services), 2005 CanLII 53192 (ON PSGB) (O’Neil), Mroz v. Ontario (Ministry of Community Safety and Correctional Services), 2012 CanLII 17222 (ON PSGB) (O’Neil).
18As to the second prong of the employer’s objection, the complainants note that it relies on the employer’s characterization of the payment made to OPSEU members as akin to a ratification allowance, rather than as a salary range or salary adjustment. As the Complainants assert that the payment is a salary range or salary adjustment, they object to a finding on the point, without evidence, on a preliminary motion. Further, they have put in issue statutory provisions concerning equal pay.
19The Board ruled on March 9, 2017 that the matter would proceed on the merits, as a continuing pay grievance, and that there were potential remedies within the Board’s jurisdiction if the complainants were successful on the merits.
20In any event, the complainants’ assertion that they became aware of the circumstances of which they complain less than 14 days before they filed the complaint was not disputed, so that the requirements of Regulation 378/07, s. 8(1) were complied with. As emphasized in the Board’s decision in Hasted/Berezowsky, cited above, that portion of the regulation is reasonably interpreted to mean that the time limits run from the date that a complainant becomes aware of circumstances giving rise to the complaint, rather than the mere existence of the working condition or term of employment which they say has been breached.
21As well, both the salary policy put in issue and the provisions of statute referenced by the complainants constitute applicable terms and conditions of employment which the Board is entitled to enforce in the event they are found to have been breached.
The issues on the merits
22The general issue raised by the facts of this case is whether the complainants are being paid in accordance with their terms and conditions of employment. The complainants’ case is based on their belief that they are not being given the benefit of the applicable terms and conditions of employment, and that they are being treated unfairly in comparison to both their unionized and managerial colleagues. It is convenient to deal with their claim in three parts. The first is their assertion that the pay directives or policies that should apply to them were not applied to them. The second is the claim that the employer’s treatment of them has not provided them with equal pay for equal work. This is, in essence, a claim of breach of statutes which are also part of the complainants’ terms and conditions of employment. Finally, the complainants are of the view that they are not classified correctly given the extent of their duties, particularly in regards to the confidential nature of much of their work, and their view that some of their job descriptions are out of date.
23It is the employer’s position that the complainants’ terms and conditions of employment have been complied with, and that they are distinct from both the OPSEU terms and conditions found in their collective agreement, and from those of the managers covered by the MCP provisions. As counsel, put it, the pay provisions for the complainants do not go “lock-step” with either OPSEU or the MCP. Further, the employer denies that there is any breach of its equal pay obligations. As to the classification of the complainants’ positions, the employer notes that the Board has no jurisdiction over classification issues.
Pay Directives/Policies
24A noted above, the complainants claim the benefit of pay policies related to increases received by both unionized and non-unionized excluded employees. Starting with the claim in respect of unionized staff, the issue is whether the provisions of salary directive 33-43, referred to in paragraph 3 above, apply to the lump sum payment they seek. In other words: is the lump sum payment negotiated for OPSEU-represented employees a salary range or salary adjustment?
25The employer acknowledges that the OPSEU Memorandum of Agreement contained provisions about salary, but takes the position that the lump sum payment was not part of the salary provisions. This position is based on the fact that the parties to the settlement (OPSEU and the government as employer) chose wording which distinguished salary from the lump sum payment. There was no change to the salary rates for 2015 and 2016, and no progression on the salary grid was allowed, which counsel characterized as a “hard freeze” on salary. The only salary increase was to the salary rates, which were increased across the board on January 1, 2017, but the members of the bargaining unit will not get the advantage of the higher rates until the beginning of 2018 given the freeze on salary movement.
26Employer counsel highlights the fact that the parties explicitly agreed that the lump sums were not to alter base salary for any purpose. Given that agreement, the employer cautions against a finding that those payments were in fact salary, which might generate the argument that a significant sum in respect of pension payments and other salary related items would be due to members of the bargaining unit, as well as the complainants. The employer’s position is the best interpretation is that the lump sum was separate from salary, and that it was in consideration of the 2-year freeze on OPSEU increases and wage progression. The employer argues that this does not amount to a contractual basis for the claimed payment to the complainants, relying on a decision of the Grievance Settlement Board, Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO) v Ontario (Treasury Board Secretariat), 2015 CanLII 90154 (ON GSB) (Misra) for the proposition that the right to a monetary benefit must be derived from a clear contractual provision.
27The submissions on behalf of the complainants note that the calculation of the lump sum payment resulted in highly-individualized payments with significant variation, across the bargaining unit, in the dollar value of the lump sum, and was based on individual salary rates. Further, it does not resemble a signing bonus, or other one time payment on the conclusion of a collective agreement, as it is not a fixed amount, but individualized according to salary. As well, it was not paid at the time of signing, but in 2016. In the complainants’ view, this is not the way the employer traditionally does lump sum payments. The complainants argue they should be treated in the same way as their OPSEU colleagues, since the employer has not provided the parallel class with the compensation changes paid to their managers.
28In deciding which theory of the case is preferable, the Board has reference to the well-established approach to the interpretation of contracts, which includes giving the words their plain and ordinary meaning, in the context of the whole contract, unless there is evidence that the words were intended to have a different or special meaning. The contractual term in question here is Directive 33-43, which reads in most relevant part as follows:
Excluded Category salary ranges in the attached salary schedules will be adjusted by a corresponding amount simultaneous with every Ontario Public Service Employees Union (OPSEU) salary range and salary adjustment after April 1, 2014, effective the same date when OPSEU salary range and salary adjustments come into effect. [emphasis added]
29This language provides adjustments to salary ranges only, and in an amount corresponding to adjustments to OPSEU salary ranges and salary adjustments. The key controversy stems from the meaning of the word salary. The ordinary, dictionary meaning of the word “salary” is “a fixed regular payment made by an employer to an employee” (according to the Canadian Oxford Dictionary, 2001). The lump sum payment negotiated for OPSEU employees was not a regular payment, as it was paid on one occasion only. Thus, on the basis of the ordinary meaning of salary, the 2016 lump sum does not appear to be salary.
30The complainants note that the lump sum was calculated from salary, and argue that as a basis for a finding that it ought to be interpreted as a salary adjustment. This argument is effectively countered by the language of the OPSEU memorandum of settlement which clearly distinguished the lump sum payment from salary. It is significant that the parties chose to label a section of their Memorandum of Agreement “Salary”, but the lump sum payment does not appear in the section of the memorandum related to salary. In the same vein, the parties added the clarification to the portion of the memorandum related to the lump sum, “This lump sum payment shall not alter an employee’s earned base salary for any purpose.” If the lump sum did not alter salary for any purpose, it is difficult to find that it was a salary adjustment. Further, the wording related to the lump sum payment did not form part of the collective agreement, which one would expect for something as fundamental to a collective agreement as salary.
31As well, the usual meaning of a “lump sum” is, in the context of employment, a single sum of money paid at one-time, as in the Canadian Oxford Dictionary’s definition “money paid down at once (as opposed to instalment)”. This is consistent with the wording of the memorandum which provides for the one-time lump sum in question, as follows:
All OPSEU employees as of January 1, 2016 including employees on approved leaves of absences and employees temporarily assigned to a position out of the bargaining unit, shall be entitled to a one-time lump sum payment equal to 1.4% of earned base salary less statutory deductions. The determination of earned base salary shall be calculated based on payment of wages earned for regular hours worked in the 2015 calendar year in an OPSEU-represented position (including pay in lieu of vacation leave where applicable), and payment for approved leaves as covered by the Collective Agreement in the 2015 calendar year while assigned to an OPSEU-represented position. This lump sum payment shall not alter an employee’s earned base salary for any purpose.
32Given the plain meaning of the specific wording used in the Memorandum of Settlement, it is clear that the lump sum payment was not intended as a salary range or salary adjustment. Directive 33-43 only promises employees in the excluded OPSEU parallel classes salary range or salary adjustments, which the lump sum payments were not. In these circumstances, the Board finds that the employer did not breach Directive 33-43 in not paying the complainants the lump sum paid to their OPSEU colleagues.
33The complainants also made reference to past practice, to the effect that compensation and salary adjustments had always been the same as OPSEU’s, until 2011, in support of their contention that it should be the same for the lump sum as well. Further, they note that in 2013, OPSEU received an increase, which they also received, but belatedly, and with no retroactivity. Because of periods when the OPSEU classifications were paid more, the complainants note that their unionized colleagues receive more for various benefits based on salary, and pension contributions as well, creating a long-term negative impact on the complainants.
34Past practice can be sufficient to establish a term or condition of employment if sufficiently clear in its application and scope. However, I do not find that the evidence that compensation provisions for the excluded category followed those of OPSEU prior to 2011 sufficient to support a finding that the complainants are entitled to the lump sum negotiated with OPSEU in 2015, particularly in light of other evidence that other aspects of the complainants’ compensation has not followed OPSEU, such as for sick leave and benefits. As to the lack of retroactivity in 2013, there is insufficient evidence before the Board to establish that the excluded category was entitled to retroactivity in that year, which pre-dated the salary directive in evidence.
35The complainants also submitted at one point that the freezing of the complainants’ salary along with those of the MCP in 2011 breached Salary Director 33-43, in light of the past practice. They see the Directive as setting out and validating what was past practice. Given that the Directive clearly speaks to 2014 and the future, this is not a sufficient basis to apply it to the years 2011 to 2013.
36In the alternative, the complainants seek the entitlements recognized for the MCP and excluded group in the December 15, 2015 memo from Secretary of Cabinet Orsini referred to above. This memo is addressed to Managers and Non-Bargaining Specialists and was not sent to the complainants as might be expected if it applied to them. The complainants have seen their management colleagues receive pay for performance, as well as lump sums, that they did not receive, even during the period of fiscal restraint. They are of the view that they are unfairly dealt with in that they receive the negative aspects of compensation applied to the managerial group, and not the compensating measures, such as the ones announced in late 2015.
37The employer’s position is that the memo announced provisions for the management compensation plan (MCP), a different compensation group than the complainants. In the employer’s view, since it is Directive 33-43 that specifically provides for how salary for the OPSEU parallel classes is determined, the different provisions summarized in the 2015 memo cannot also apply to them. Employer counsel submits that the 2015 memo announced the end of the freezing of pay for the MCP group, but simply does not apply to the distinct compensation treatment of the OPSEU parallel classes.
38The complainants argue that the memo does not state what excluded employees it refers to, and acknowledge that the memo was not communicated to them at the time. Nonetheless, it included a reference to coverage for paramedical expenses, which was extended to the complainants. Noting that their benefits, sick pay and severance provisions are those contained in the MCP package, the complainants submit that it is prejudicial to treat them differently for salary than for benefits.
39Having considered all the evidence and argument submitted, the Board finds that the MCP provisions related to salary have not been shown to apply to the complainants. In any event, each of the complainants was at the top of her salary grid, so that the “in-range” increases would not have provided a benefit to them. As to the claim to the provision that compensation would not fall below the levels of 2011-12, that provision has been discussed most recently in the Board’s decision in Rotondo v Ontario (Community and Social Services), 2017 CanLII 39681 (ON PSGB) concerning the detailed policy provisions which were summarized in the very generally worded memo. It can be seen that it referred to adjustments related to the withdrawal of pay for performance, something which never applied to the complainants. Further, even if the memo had applied to the complainants, the evidence did not establish that the complainants’ earnings fell below their 2011-12 levels.
Equal Pay
40In their second complaint, and in light of the fact that their group is predominately female, the complainants claim equal pay for equal work, as compared to their OPSEU colleagues, and a pay equity review.
41Starting with the complainants’ claim to equal pay for equal work, that is a term found in the Employment Standards Act (ESA). Although the term in its ordinary usage might suggest that all employees doing the same work are legally required to be paid the same, the provisions of the ESA only deal with unequal pay as between male and female employees. The complainants have not identified any male employee doing the same work as they do who is being paid more than they, so this part of their complaint cannot be successful.
42The complainants also make reference to pay equity, which is a term used in the Pay Equity Act, which goes further than the ESA to prevent wage discrimination between male and female work of equal value, rather than males and females doing the same work. The employer’s position is that the complainants are being paid in accordance with the provisions of the Pay Equity Act, which provides that the employer must establish and maintain pay equity in the manner set out in that legislation.
43The Pay Equity Act contains very specific requirements as to how pay equity is determined, requiring a comparison between male and female dominated job classes. For pay equity purposes, the comparator is not the OPSEU-represented jobs who do similar administrative work to that of the complainants. Rather, it is a male dominated classification entitled Technician I Construction, as provided in the applicable pay equity plan.
44According to the uncontradicted submissions and documents before the Board, the complainants, as employees excluded from collective bargaining, were part of the government’s pay equity plan, described in a document entitled “Ontario Public Service Pay Equity Plan – Management and Excluded”. This plan, designed to achieve the legislative requirements, used a job comparison approach to compare male and female classes, on the basis of the four legislated factors: skill, effort, responsibility, and working conditions. The analysis included the generation of a numerical score for each job class sampled, as an average for each job class, rather than each individual job. Jobs with similar numerical scores were determined to be of equal or comparable value. These comparisons provided the basis for adjusting salary rates for female job classes where necessary to achieve pay equity as prescribed in the Pay Equity Act.
45The job category applicable to the complainants listed in the Plan - Office Administration (Excluded) - was one of the female representative job classes, and it was compared to the bargaining unit Male Job Class Technician 1 Construction, which was found to be of equal or comparable value. The comparison was done, as prescribed, between the maximum of the hourly rates, known as the job rates. The evidence established that the top rate for the Technician 1 Construction classification effective January 1, 2017 was $26.43. Both the classifications referred to in argument as applicable to the complainants, OAG8 and OAG9, had a maximum hourly rate higher than that, being $26.46 and $27.73, respectively. On that basis, the employer argues that there has been no failure to maintain pay equity.
46The complainants did not challenge the employer’s figures concerning the maxima up to January 1, 2017, but argue that the maxima were not higher after 2017.
47Further, the complainants argue that the lump sum paid to OPSEU should be considered part of compensation for purposes of the pay equity comparison, given the broad definition of compensation in s. 1 of the Pay Equity Act.
48The employer answers that the lump sum payment would be included only if such payments are part of the regular, expected compensation for a job class, citing the decision of the Pay Equity Hearings Tribunal Group of Employees vs. Windsor Casino and CAW, 2007 CanLII 62083 (ON PEHT). The complainants noted that the type of payments dealt with in that decision was different than the lump sum payments in question here, but did not argue that the case misinterpreted the legislation as to what should be included in the job rate comparison.
49On the material before the Board, and similar to the findings above that the lump sum payments were not part of salary, there is an insufficient basis to find that the lump sum payment in 2016 was part of the regular expected compensation for OPSEU employees. Both sides in their different ways acknowledged that the lump sum payments were unusual, and by the terms of the settlement they were paid on a one-time basis, outside of the collective agreement. These circumstances favour a finding that the lump sum payments were not part of regular compensation for OPSEU employees, which would be expected to be found within the collective agreement itself. In these circumstances, on the material before me, I do not find that it is a breach of statute or other terms and conditions of employment to not include the lump sum in the job rate comparison.
50Returning to the question of the comparison of the job rates, the evidence did not establish that the complainants’ job rates were lower than that of the male comparator class at the time of the complaints or to the end of submissions in this matter. In these circumstances, there is no basis in the material before the Board to find that there was a failure to maintain pay equity up until the time of argument.
51As to the complainants’ claim that the job rates were not higher after 2017, this aspect of the case was not fully dealt with by the parties, and deals with a future time. Particularly in light of the proposed review of the complainants’ job descriptions and classification referenced in the next section, the Board does not find it appropriate to address any issues in respect of pay beyond the time of final submissions in the context of this complaint.
52The employer also argued that if the Board were to decide that the lump sum should be included for the purposes of the pay equity comparison, or otherwise find a pay discrepancy with the male comparator group, any differential would properly be attributable to the difference in bargaining strength between OPSEU and the excluded parallel class employees, something explicitly contemplated by the pay equity legislation. In this respect the employer relied on the decision of the Pay Equity Hearings Tribunal in Stevenson Memorial Hospital v. Ontario Public Service Employees Union, Local 360, 2000 CanLII 22419 (ON PEHT), for the idea that the bargaining strength exception in the Pay Equity Act can apply between unionized and non-unionized staff. Given the Board’s findings just above that failure to maintain pay equity was not demonstrated up to the time of argument, it is not necessary to deal with the employer’s argument about the application of the bargaining strength exception.
Classification issues
53The complainants filed job specifications and postings for the purpose of showing that they perform duties equivalent to higher rated classifications. Further, the complainants are of the view that some of their job descriptions are outdated. The employer objected to the Board’s jurisdiction over this aspect of the complainants’ evidence, referring to s. 4(2)(2) of Regulation 378/07 which provides that assignment of a person to a particular classification cannot be the subject of a complaint to this Board. Notwithstanding the employer’s objection to the Board’s jurisdiction, the employer agreed to inquire about a discrepancy on the face of one of the job descriptions tendered, which had a reference to being in classification OAG8 in one section, and OAG9 in another. The result of the inquiry was that the final approved version corrected an arithmetical error, and showed the final classification as OAG8.
54Further, employer counsel wrote in post-hearing submissions that the employer had ascertained that the job descriptions of the excluded Youth Centre Administrative Assistants pre-date the establishment of a centralized organization called the Enterprise Classification Unit (ECU), which
was established to centralize the classification of positions in the OPS. Given that the job description at issue pre-dated the ECU, and the complainants had raised the issue of their job descriptions with the Ministry separate from this complaint, counsel indicated that there was a process ongoing to determine the classification issues, and that Ministry officials were committed to working with the complainants in an attempt at resolution. The complainants’ response included an indication that meetings had not yet occurred in this respect.
55It is true that the actual classification of the complainants’ positions is beyond the jurisdiction of the Board, and thus further consideration of the situation with the complainants’ job descriptions and classification is beyond the Board’s mandate. Nonetheless, it is hoped that the parties have already, or will soon complete the process of ensuring that the complainants’ job descriptions and classification are accurate for their duties.
56In closing it is appropriate to note that much of the complainants’ case arises from the fact that they do not experience their treatment for pay and benefits as transparent, fair or consistent. One of them put it that the employer prides itself on being inclusive, but instead, they are excluded from positive compensation changes, appearing to be an afterthought, bouncing back and forth between their unionized and managerial colleagues. As well, they state that when they began to ask management representatives about their compensation treatment in 2016, no one could provide an answer as to why they were treated the way they were. It appears to the Board that there is a great deal of room for improvement in clarity of communication to members of the parallel classes as to how their compensation works and where to find the totality of their terms and conditions of employment. Although the Board has not found a breach of any of the terms and conditions of employment in evidence, it is hoped that transparency in regards to communication with this group will receive renewed attention from the employer for the future.
57For the above-noted reasons, the complaints are hereby dismissed.
Dated at Toronto this 30th day of November, 2017
Appendix A – Excerpts from Statutes and regulations
Excerpt from Regulation 378/07 under The Public Service of Ontario Act
Notice of proposal to file a complaint
(1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity:
A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.
A complainant who, at the material time, worked in a Commission public body shall give the notice to the chair of the Public Service Commission. O. Reg. 378/07, s. 8 (1).
(2) Subsection (1) does not apply with respect to a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 8 (2).
(3) The notice must set out the reasons for the complaint. O. Reg. 378/07, s. 8 (3).
(4) The notice must be given within the following period:
For a complaint about dismissal for cause, within 14 days after the complainant receives notice of the dismissal.
For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.
For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint. O. Reg. 378/07, s. 8 (4).
Excerpt from the Employment Standards Act
PART XII EQUAL PAY FOR EQUAL WORK
Equal pay for equal work
- (1) No employer shall pay an employee of one sex at a rate of pay less than the rate paid to an employee of the other sex when,
(a) they perform substantially the same kind of work in the same establishment;
(b) their performance requires substantially the same skill, effort and responsibility; and
(c) their work is performed under similar working conditions. 2000, c. 41, s. 42 (1).
Exception
(2) Subsection (1) does not apply when the difference in the rate of pay is made on the basis of,
(a) a seniority system;
(b) a merit system;
(c) a system that measures earnings by quantity or quality of production; or
(d) any other factor other than sex. 2000, c. 41, s. 42 (2).
Reduction prohibited
(3) No employer shall reduce the rate of pay of an employee in order to comply with subsection (1). 2000, c. 41, s. 42 (3).
Organizations
(4) No trade union or other organization shall cause or attempt to cause an employer to contravene subsection (1). 2000, c. 41, s. 42 (4).
Deemed wages
(5) If an employment standards officer finds that an employer has contravened subsection (1), the officer may determine the amount owing to an employee as a result of the contravention and that amount shall be deemed to be unpaid wages for that employee. 2000, c. 41, s. 42 (5).
Excerpt from The Pay Equity Act
Definitions
1 (1) In this Act,
compensation” means all payments and benefits paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount; (“rétribution”)
“job rate” means the highest rate of compensation for a job class; (“taux de catégorie”)
Achievement of pay equity
5.1 (1) For the purposes of this Act, pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job-to-job method of comparison or the proportional value method of comparison and any adjustment to the job rate of each female job class that is indicated by the comparison has been made. 1996, c. 1, Sched. J, s. 2.
Achievement of pay equity
6 (1) For the purposes of this Act, pay equity is achieved under the job-to-job method of comparison when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value. R.S.O. 1990, c. P.7, s. 6 (1); 1993, c. 4, s. 4 (1).
Idem
(4) Comparisons under the job-to-job method of comparison,
(a) for job classes inside a bargaining unit, shall be made between job classes in the bargaining unit; and
(b) for job classes outside any bargaining unit, shall be made between job classes that are outside any bargaining unit. R.S.O. 1990, c. P.7, s. 6 (4); 1993, c. 4, s. 4 (2).
Idem
(5) If, after applying subsection (4), no male job class is found in which the work performed is of equal or comparable value to that of the female job class that is the subject of the comparison, the female job class shall be compared to male job classes throughout the establishment.
Groups of jobs
(6) An employer may treat job classes that are arranged in a group of jobs as one female job class if 60 per cent or more of the employees in the group are female.
Idem
(7) An employer shall treat job classes that are arranged in a group of jobs as one female job class if a review officer or the Hearings Tribunal decides that the group should be treated as one female job class.
Idem
(8) An employer may, with the agreement of the bargaining agent, if any, for the employees of the employer, decide to treat job classes that are arranged in a group of jobs as one female job class.
Job rate, value of work
(9) Where a group of jobs is being treated as a female job class, the job rate of the individual job class within the group that has the greatest number of employees is the job rate for the group and the value of the work performed by that individual job class is the value of the work performed by the group.
Definition
(10) In this section,
“group of jobs” means a series of job classes that bear a relationship to each other because of the nature of the work required to perform the work of each job class in the series and that are organized in successive levels. R.S.O. 1990, c. P.7, s. 6 (5-10).
Pay equity required
7 (1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.
Idem
(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1). R.S.O. 1990, c. P.7, s. 7.
Exceptions
8 (1) This Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of,
(a) a formal seniority system that does not discriminate on the basis of gender;
(b) a temporary employee training or development assignment that is equally available to male and female employees and that leads to career advancement for those involved in the program;
(c) a merit compensation plan that is based on formal performance ratings and that has been brought to the attention of the employees and that does not discriminate on the basis of gender;
(d) the personnel practice known as red-circling, where, based on a gender-neutral re-evaluation process, the value of a position has been down-graded and the compensation of the incumbent employee has been frozen or his or her increases in compensation have been curtailed until the compensation for the down-graded position is equivalent to or greater than the compensation payable to the incumbent; or
(e) a skills shortage that is causing a temporary inflation in compensation because the employer is encountering difficulties in recruiting employees with the requisite skills for positions in the job class.
Idem
(2) After pay equity has been achieved in an establishment, this Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of differences in bargaining strength.
Appendix B – Excerpts from OPSEU - OPS settlement
- SALARY
Amend Article UN 16 as follows:
ARTICLE UN 16 – SALARY
UN 16.1.1 Effective January 1, 2015, the salary rates in effect on December 31, 2014, shall remain in effect, and are contained in the Salary Schedule set out in the 2013-2014 Collective Agreement.
UN 16.1.2 All salary rates to be increased across the board as follows:
January 2, 2017 – 1.4%
The salary rates in effect on January 1, 2017 for all classifications are contained in the Salary Schedule attached.
MINIMUM WAGE
Un 16.3 In the event that there is a legislated increase to the minimum wage in Ontario and a classification that has a minimum hourly rate of pay that falls within the minimum wage, the minimum hourly rate of pay for that classification will be adjusted to be equal to the minimum wage, and all hourly rates of pay in the same classification shall be adjusted to maintain the dollar difference in hourly rates of pay that existed prior to the adjustment.
- LUMP SUM PAYMENT
The following language does not form part of the collective agreement.
All OPSEU employees as of January 1, 2016 including employees on approved leaves of absences and employees temporarily assigned to a position out of the bargaining unit, shall be entitled to a one-time lump sum payment equal to 1.4% of earned base salary less statutory deductions. The determination of earned base salary shall be calculated based on payment of wages earned for regular hours worked in the 2015 calendar year in an OPSEU-represented position (including pay in lieu of vacation leave where applicable), and payment for approved leaves as covered by the Collective Agreement in the 2015 calendar year while assigned to an OPSEU-represented position. This lump sum payment shall not alter an employee’s earned base salary for any purpose. [ emphasis added.]
- SALARY PROGRESSION FREEZE
The parties agree that notwithstanding any other article in the collective agreement, all employees’ salary rates as of January 1, 2016 shall be fixed at that rate and no employee shall be entitled to any salary progression from January 1, 2016 to December 31, 2017. Employees hired or appointed into positions in the OPSEU bargaining unit during the term of the collective agreement shall have their salary fixed at the salary rate received upon hire or appointment and shall not be entitled to any salary progression for the duration of the collective agreement.
Appendix C
Case law
Group of Employees vs. Windsor Casino and CAW, 2007 CanLII 62083 (ON PEHT).
Hasted/Berezowsky v. Ontario (Community Safety and Correctional Services), CanLII 7473 (ON PSGB) Jan 18, 2016 (Nairn)
Rotondo v Ontario (Community and Social Services), 2017 CanLII 39681 (ON PSGB)