0635-97 The Regional Municipality of Niagara, Applicant v. CUPE, Local 1287, Respondent

Appearances: Angela Rae for the Applicant; John Elder for the Respondent

Before: Katherine Laird, Vice-Chair; Bruce Budd and Margaret Kvetan, Members

Cite As: Niagara (No. 2) (1998-99), 9 P.E.R. 25

Changed Circumstances - When Available
The parties disagreed on whether a changed circumstances challenge to a pay equity plan could be made only before or only after the achievement of pay equity. The Tribunal concludes that the language of ss.22(2)(b) suggests that the changed circumstances provision is available to deal with some kinds of workplace changes occurring after the posting of a plan and also after full achievement of pay equity.

Changed Circumstances - Notice
Where one party initiates unsuccessful negotiations about a workplace change which might be considered either a “changed circumstances” or a maintenance issue, the failure of that party to give formal section 14.1 notice will not affect the right of the affected employees to make a complaint to Review Services relying on both s.7 and ss.22(2)(b). Nor does the failure to give s.14.1 notice undermine the Review Officer’s finding that there was a change in circumstances.

Comparisons - Vacant Comparator
The Tribunal found that, in the absence of any wage impact or substantive change in job content, the fact that the male comparator job class was vacant and remained vacant did not render the pay equity plan inappropriate for the female job classes.

Evaluation Methods - Proportional Value
The Review Officer had ordered that, although pay equity was achieved using the job-to-job method of comparison, in the interests of fairness pay equity should be maintained using the proportional value method used for other female job classes in the establishment. The Tribunal revoked this Order on the basis that, while the job-to-job method produced a less satisfactory result for these employees, the plan complies with the Act and the Tribunal has no jurisdiction to order its amendment in the absence of a contravention or a finding of changed circumstances.

Changement de la situation - Application de la disposition pertinente
Les parties ne s’entendaient pas sur la question de savoir si la contestation d’un programme d’équité salariale fondée sur un changement de situation au sein d’un établissement pouvait être présentée seulement avant ou seulement après la réalisation de l’objectif d’équité salariale. Le Tribunal a conclu que l’alinéa 22 (2) b) autorise à penser que la disposition relative aux changements de situation s’applique à certains types de changements qui surviennent au lieu de travail après l’affichage d’un programme d’équité salariale et aussi après la pleine réalisation de l’objectif d’équité salariale.

Changement de la situation - Avis
Si une partie entame des négociations infructueuses relativement à un changement au lieu de travail qui pourrait être considéré soit comme un «changement de la situation» au sein de l’établissement, soit comme une question de maintien, le défaut de cette partie de donner un avis officiel aux termes de l’article 14.1 ne porte pas atteinte au droit des employés lésés de déposer une plainte auprès des Services de révision en se fondant sur les dispositions de l’article 7 et de l’alinéa 22 (2) b). Le défaut de donner un avis aux termes de l’article 14.1 n’a pas non plus d’effet négatif sur la conclusion de l’agent de révision selon laquelle il y avait bel et bien eu un changement de situation.

Comparaisons - Absence de comparateur
Le Tribunal a conclu qu’en l’absence d’incidences salariales ou de changements importants de la nature du travail, le fait qu’une catégorie d’emplois avec comparateurs masculins ne comporte aucun titulaire de poste n’a aucun effet sur la pertinence du programme d’équité salariale aux catégories d’emplois à prédominance féminine.

Méthodes d’évaluation - Valeur proportionnelle
L’agent de révision avait ordonné que même si l’objectif d’équité salariale avait été atteint au moyen de la méthode de comparaison d’un emploi à l’autre, il faudrait, dans l’intérêt de l’équité, utiliser la méthode de comparaison de la valeur proportionnelle, employée à l’égard d’autres catégories d’emplois à prédominance féminine de l’établissement. Le Tribunal a révoqué l’ordre en faisant valoir que même si la méthode de comparaison d’un emploi à l’autre donnait des résultats moins satisfaisants aux yeux des employés, le programme était conforme à la Loi et que le Tribunal n’avait pas compétence pour ordonner sa modification en l’absence d’une infraction à la Loi ou d’une constatation de changement de situation.

DECISION OF THE TRIBUNAL, FEBRUARY 18, 1999

Introduction

1. The Application before the Tribunal is brought by the Regional Municipality of Niagara (“Niagara”) and seeks revocation of a Review Officer Order dated January 14, 1997. The Order was issued in respect of a complaint to Review Services in March 1995 by two employees, Barbara Morellato and Nansi Nikiforuk (“individual employees”), who were members of a bargaining unit represented by the Canadian Union of Public Employees, Local 1287 (“CUPE”). The complaint alleged that the pay equity plan, negotiated by Niagara and CUPE, violated s.22(2)(b) and s.7(2) of the Pay Equity Act, R.S.O. 1990, c.P. 7 (“Act”). The individual employees’ position was that the plan was no longer appropriate for their job classes due to the on-going vacancy of the applicable male comparator, the INS Field Assistant. In their submission, the vacancy had resulted in “changed circumstances” within the meaning of s.22(2)(b). In addition, the individual employees submitted that the negotiating parties had failed to maintain pay equity, as required by s.7, as a result of Niagara’s refusal to accept a CUPE proposal to establish a replacement comparator for their job classes.

2. The Review Officer Order held that the pay equity plan was “no longer valid due to a change in circumstance”. The Order found that the continuing vacancy of the male comparator job class, from June 1993, meant that it was “no longer a viable comparator”. The Officer concluded that a proportional value approach to maintaining pay equity would be “the fairest way of resolving the outstanding issues”. Niagara and CUPE were ordered to maintain pay equity for the affected female job classes by applying the proportional value method.

3. The individual employees filed a Response to Niagara’s Application in respect of the Review Officer Order, as did CUPE. The two Responses contained identical pleadings. By motion heard on February 16, 1998, counsel for Niagara argued that the individual employees, as members of a bargaining unit, should not have standing before the Tribunal. In an interim decision released March 13, 1998, this panel granted the motion, relying in part on the fact that the legal interests of the individual employees and CUPE, as outlined in the pleadings, were identical.

4. This decision is on the merits of Niagara’s Application.

Evidence

5. Niagara called three witnesses:

- Jim Hagar, currently Labour Relations Officer for Niagara, with respect to his role, as former CUPE local president, in initiating discussions with Niagara over the vacancy of the male comparator job class at issue;

- Scott Sanders, Salary and Classification Officer, with respect to the process under the collective agreement for eliminating existing job classifications;

- Paul Smeltzer, Associate Director of Public Works, with respect to the development of the original INS Field Assistant positions, and the process leading to the posting of an INS Field Assistant position in early 1998.

6. Hagar testified that the union had initiated discussion with management in December 1994 with the aim of agreeing on a new comparator to replace the vacant male job class. He testified that the union had received “advice” that the vacancy did not constitute “changed circumstances” within the meaning of the legislation, and thus did not intend to give notice to bargain under s.14.1. He confirmed that the union wrote to Niagara’s Director of Human Resources seeking a plan amendment to establish a new comparator. The Director agreed, in reply correspondence, that the INS Field Assistant position was a so-called “vanishing comparator”, but suggested that there would be no need to establish a new comparator if the affected female job classes were provided with the same salary and benefits increases as other job classes in the pay equity plan.

7. Sanders testified that Article 26.02 of the collective agreement established a process whereby existing job classifications could not be eliminated without prior agreement with CUPE. As a result of contract negotiations, the INS Field Assistant had been included in the collective agreement as a job classification. Sanders testified that Niagara had at no point taken steps under Article 26.02 to consult with CUPE about whether the INS Field Assistant should be eliminated as a job classification in the collective agreement. He acknowledged that the process under Article 26.02 is initiated by management, but testified that CUPE could have raised the vacancy as an issue at the bargaining table, but did not do so.

8. Smeltzer described the development of the initial INS Field Assistant position as part of a project which was jointly funded by Niagara, the province, and the City of St.Catharines, until 1995. There were originally several encumbents, the last of whom left in June 1993. Smeltzer described the events which triggered the re-development and posting of an INS Field Assistant position in February 1998. He compared the responsibilities of the new position, which was not yet filled, to the responsibilities of the positions which had become vacant in 1993.

Submissions of Niagara

9. Counsel for Niagara argued that the 1997 Review Officer Order should be revoked on several grounds as summarized below.

- The appropriateness of the male comparator for these job classes was raised at Review Services in 1993, as part of an earlier employee application, culminating in an Order dated December 10, 1993. Accordingly, any consideration of this issue by the Tribunal should have been triggered by an employee or union appeal of the 1993 Order. Although the earlier Order did not explicitedly deal with the appropriateness of the male comparator, the Tribunal should follow its jurisprudence, in Scarborough (No. 1) (1994), 5 P.E.R. 45, and Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50, establishing that a party could take to the Tribunal any issue canvassed at Review Services, whether or not dealt with in the Order.

- There is no maintenance issue because the wages of the female job classes remained equal to the wages for the comparator job class. If the union was of the view that there was a maintenance issue arising out of the vacancy of the male job class, the proper approach was to use the maintenance process set out in Appendix C (“Joint Job Evaluation”) of the collective agreement.

- The male comparator job class cannot be considered a so-called “vanished comparator” given that the job classification remained in the collective agreement and has recently been posted for competition. The male job class remained a viable comparator notwithstanding the absence of incumbents.

- The vacant male job class cannot be considered a “changed circumstance” under s.22(2)(b) because that provision only has application during the implementation stage. Once pay equity is achieved in a workplace, the correct interpretation of the legislation is that neither the bargaining parties nor the employees can bring complaints under s.22(2)(b) to Review Services or subsequently to the Tribunal.

- Alternatively, if changes in the workplace subsequent to the achievement of pay equity can be raised under s.22(2)(b), the vacancy of this male comparator job class has not had the effect of rendering the plan inappropriate for the female job classes because it has not resulted in a wage gap.

- The union should have given notice to bargain under s.14.1 if it believed that the vacancy of the job class amounted to “changed circumstances”. Hagar’s testimony indicates that the union did not believe, in 1994/5, that there was a “changed circumstances” issue arising out of the on-going vacancy. The failure to give notice under s.14.1 has prejudiced Niagara and is grounds for revoking the Order.

CUPE Submissions

10. Counsel for CUPE responded to the submissions of Niagara, summarized above, as follows.

- Although the Tribunal might have taken jurisdiction with respect to the issue of the appropriateness of the male job class, had it been raised in an appeal from the 1993 Order, the failure of the individual employees to bring such an appeal at that time did not foreclose their right to go to Review Services in 1995 about the on-going vacancy of the job class in the intervening two years. The union, for its part, was aware that the INS Field Assistant job class was challenged in 1993 as a valid male comparator on the basis that the positions were temporary, but was not aware that the individual employees had also relied upon the fact that the job class was about to become vacant.

- The issue taken to Review Services in 1993 was not the same issue as was taken to Review Services in 1995. Although the 1993 complaint of the individual employees alleged, as one of several issues, that the male comparator positions were temporary, and that the only remaining encumbent was about to leave, the 1995 complaint focussed on the fact that the job class had by then been vacant for almost two years.

- Even though there has been no widening of the wage gap between the male and female job classes as a result of the vacancy of the INS Field Assistant positions, this does not address the fundamental issue of the legitimacy of a long-vacant comparator job class. The fact that there was no need for the union to invoke the maintenance procedures in Appendix C of the collective agreement is irrelevant to this fundamental issue before the Tribunal.

- It would have made no sense for the union to have sought the removal of the INS Field Assistant job classification from the collective agreement; the union had fought to have it included in the first place. The fact that a long-vacant job classification remains in the collective agreement does not mean that it remains an appropriate comparator.

- The Tribunal should not consider the recent posting of what might or might not be the same position. The job description for the recently posted INS Field Assistant position has not yet been provided to the union and evaluated in accordance with the job evaluation process in the collective agreement. The decision to re-post, even if bona fide, was made well after the complaint to Review Services and the release of the Review Officer Order.

- The union is not foreclosed from arguing that the vacancy amounted to “changed circumstances” within the meaning of s.22(2)(b) because of an alleged failure to initiate “changed circumstances” negotiations under s.14.1. The process in s.14.1 is not mandatory, and in any event, the union did initiate discussions with management in respect of the vacancy, even though its correspondence did not formally cite s.14.1.

- Alternatively, it would not have been appropriate for the union to have given notice to bargain under s.14.1 with respect to the vacancy of the male job class because pay equity had not been achieved in the establishment at the point at which the vacancy occurred. The final pay equity plan, including proportional comparisons, was not posted until December 1993, 6 months after the position had become vacant. Contrary to the submissions of Niagara, “changed circumstances”, within the meaning of s.22(2)(b) and s.14.1, can only occur after pay equity has been achieved for every job class, in accordance with s.5.1(1).

- The on-going vacancy of the male comparator job class, commencing before the posting of the final pay equity plan, created a situation which defeated the basic requirement of the Act. The legislation requires on-going comparisons between real female and male job classes to ensure that pay equity, once achieved, is maintained. Whether the problem is characterized as a maintenance issue or as a “changed circumstances” issue, the Review Officer Order should be upheld as providing a solution which confirms the legislative goal of addressing systemic gender discrimination in compensation.

Analysis

Timeliness of the Application

11. The jurisprudence of the Tribunal establishes that any issue canvassed at Review Services may be taken forward in an Application to the Tribunal. However, where, as in this case, an issue is raised at Review Services prematurely, before the circumstances giving rise to the issue have crystallized, and where, in any event, the issue is not dealt with, or even referred to, in the Review Officer Order, the party raising the issue is not prevented from subsequently taking the same issue to Review Services based on the factual situation as it eventually unfolds. The Order of the Review Officer is properly before the Tribunal.

Recent Posting of a Position in the Male Comparator Job Class

12. A notice of vacancy for an INS Field Assistant position was posted in February 1998, but the subsequent competition was cancelled and the position was re-posted on the very day on which the evidence in this matter was heard. Although the Tribunal heard testimony comparing the job content of the new position, as posted, with that of the positions with the same name in 1993, we are not prepared to rely on that evidence. In some cases, it may be appropriate for the Tribunal to consider factual circumstances arising after completion of the Review Services process, or after an application to the Tribunal has been filed, but it would not be appropriate to do so in this case, given that the new facts relied upon had not crystallized at the time of our hearing.

Failure of Union to Take Certain Steps

13. Niagara has relied on the failure of CUPE to take certain steps to deal with the vacancy of the male job class, specifically:

- the failure to seek, in collective bargaining, the employer’s agreement to have the job classification removed from the contract;

- the failure to initiate consultations with the employer to have the job classification eliminated under Article 26.02 of the collective agreement;

- the failure to give the employer notice to bargain in respect of “changed circumstances”, pursuant to s.14.1 of the Act.

14. In our view, in the circumstances of this case, nothing turns on the failure of the union to take either of the first two steps, or to specifically cite s.14.1 in its written discussion with the employer on the vacancy of the male comparator job class. Although the union could have taken either of the first two steps, it is not surprising, or significant, that it did not do so, given that the re-posting of the position was at all times a matter within the sole discretion of management. Instead, CUPE raised the “vanishing comparator” issue in correspondence to Niagara’s Director of Human Resources, with a view to agreeing on a new comparator. The correspondence characterized the issue as one of pay equity maintenance, and enclosed an excerpt from a Pay Equity Commission publication, “Maintaining Pay Equity Using a Job-to-Job Approach”, which characterizes “changed circumstances” as a maintenance issue.

15. The relationship between the statutory requirement, in s.7, to maintain pay equity, and the s.22(2)(b) right to challenge a plan on the basis of “changed circumstances”, is not clearly set out in the legislation. As is noted in the 1995 Review Officer Order, the Act does not provide much guidance in this area. While counsel in this case disagreed about whether s.22(2)(b) had application only before or only after the achievement of pay equity, the Pay Equity Commission publication, referred to above, suggests that “changed circumstances” can occur either before or after a plan is fully implemented. In our view, the language of s.22(2)(b) suggests that this provision is available to deal with some kinds of workplace changes occurring after the posting of a plan, and also after full achievement of pay equity.

16. When a male comparator job class is vacant for a significant period of time, the situation could, depending on the factual context, raise issues with respect to the maintenance of pay equity, as required by s.7, and/or could constitute “changed circumstances” under s.22(2)(b). Where, as in this case, one of the bargaining parties initiates unsuccessful negotiations about a workplace change which could be considered either a maintenance or a “changed circumstances” issue, the failure of that party to give formal notice to bargain under s.14.1 will not, in our view, affect the right of the affected employees to bring a complaint to Review Services, relying on s.7 and s.22(2)(b), in respect of the same factual situation.

17. The task of the Tribunal is to determine if the Review Officer Order disposing of the complaint should be upheld or revoked on its merits. Given the content of the negotiations which took place between management and the union about how to address the vacancy of the job class, it would not be appropriate for the Tribunal to rely on CUPE’s failure to cite “changed circumstances” in those discussions, as a reason to revoke the Review Officer Order on the merits of the individual employees’ complaint. We conclude, on the facts of this case, that the failure to give specific notice under s.14.1, does not in itself undermine the validity of the Review Officer’s finding that there had been a change in circumstance as a result of the vacancy.

Has the Vacancy of the Male Comparator Job Class Resulted in “Changed Circumstances” and/or a Failure to Maintain Pay Equity?

18. The significant fact in this case is that there has been no wage impact resulting from the vacancy of the male comparator job class at issue. The affected female job classes were not denied wage increases received by other job classes. In fact, none of the employees covered by the pay equity plan have received any salary or benefits increases since the vacancy commenced. Moreover, Niagara, in a letter dated December 16, 1994, attempted to come up with a lasting solution by agreeing to provide the female job classes with the same salary and benefits increases as other jobs in the pay equity plan on an on-going basis. Providing across-the-board increases to all employees covered by a plan is one of the possible approaches to a vanishing comparator problem which is outlined in the Pay Equity Commission publication referred to above. The publication notes that replacing the male comparator is one way, but not the only way, to address an on-going vacancy.

19. Notwithstanding the on-going vacancy of the male job class, pay equity has been achieved and maintained to date in accordance with s.7 of the legislation. There has not been a widening wage gap as might be the case in any situation in which increases were given but not on an across-the-board basis. Accordingly, the mere fact that the male job class has remained vacant has not had the effect, in this case, of making the plan “not appropriate for the female job class[es]”, per s.22(2)(b). This can be contrasted with a situation where, for example, there has been a substantive change in the job content of a comparator job class. In fact, if the new INS Field Assistant position, re-posted during our hearing, has been or will be filled, a change in the valuing of that position may affect its appropriateness as a comparator for the relevant female job classes.

Conclusion

20. The Review Officer Order raised fairness as an issue in this dispute. The Review Officer came to the conclusion that “the fairest way of resolving the outstanding issues” would be to apply the proportional value method to the calculation of pay equity for the female job classes at issue. The Order found that, although pay equity for these job classes had been achieved using the job-to-job method, it should be maintained “using the same proportional value methodology used for the other female-dominated job classes in the bargaining unit that did not find comparators in the original pay equity plan”. The Officer ordered that maintenance adjustments be retroactive from the date on which pay equity was achieved.

21. Accepting the Review Officer’s conclusion that the application of the proportional value method would have resulted in a higher wage adjustment for the individual employees, the panel must note that the legislation does not entitle employees to the higher adjustment as between the job-to-job and proportional methods of calculation. The proportional value method will, in some cases, result in adjustments which are higher than those produced by applying the job-to-job method, but may also result in lower adjustments. This is because the proportional value method minimizes the impact of chance variance on the calculation of pay equity adjustments by comparing female jobs to a male wage line which represents the “line of best fit” for male-dominated job classes.

22. In this case, the individual employees were not satisfied with the results of the job-to-job pay equity plan for their job classes and took several issues to the Pay Equity Commission in 1993, including the temporary nature of their male comparator job class. When the INS Field Assistant positions later became vacant, and stayed vacant, the individual employees went back to Review Services seeking an amendment to the pay equity plan that would result in a higher wage adjustment. The 1997 Review Officer Order concluded that the individual employees would have received a higher, and fairer, wage adjustment under the proportional value method applied to those female job classes in the bargaining unit that did not find a comparator under the job-to-job plan.

23. However, the legislation directed Niagara and CUPE to negotiate pay equity using a job-to-job comparison method. The negotiated pay equity plan complies with the legislation notwithstanding that it produces a result which is disappointing for these individual employees. The legislation does not allow the Tribunal to require an amendment to a deemed approved pay equity plan, which has been fully implemented and maintained, where there has been no contravention of the Act (s.22(1)) and where there are no “changed circumstances” which have had the effect of making the plan inappropriate for the female job classes (s.22(2)(b)). In the result, we must allow Niagara’s Application and revoke the Review Officer Order dated January 14, 1997.