Tuesday, 12 June 2012

You've Come a Long Way

“You’ve come a long way, baby!”  And, what would you know, it’s taken you a long time to get here as well.  'No problem,' says the Ontario Divisional Court in a recent pay equity case.

In a decision released May 31, 2012, Canadian Union of Public Employees Local 1999 v. Lakeridge Health Corporation, 2012 ONSC 2051, the Honourable Justice Katherine Swinton, on behalf of a three-member panel (Justices Patricia Hennessy and Alison Harvison Young concurring) dismissed two applications for judicial review that sought to set aside decisions of the Pay Equity Hearings Tribunal (“the Tribunal”) dealing with compensation adjustments for wage grids of female job classes.  In both cases, the Tribunal refused the union’s application to eliminate the different rates of progression through the wage grids of comparable male and female job classes, holding that the Pay Equity Act, R.S.O. 1990, c. P.7 (the “PEA” or the “Act”) does not require the harmonization of wage grids.   

As Justice Swinton explained:

The Pay Equity Act is remedial legislation enacted “to redress systemic gender discrimination in compensation for work performed by employees in female job classes”

Systemic gender discrimination in compensation is identified by comparing female and male job classes in an establishment in terms of compensation and in terms of the value of the work performed (s. 4(2)).  The PEA sets out a detailed process to be followed by employers covered by the legislation whereby they are to identify male and female job classes and to evaluate each job class in respect of a composite of skill, effort, responsibility and working conditions, using a gender neutral comparison system (ss. 5(1) and 12).  They are then to compare compensation rates for the male and female job classes and make appropriate adjustments to female rates in order to achieve pay equity (see, for example, s. 13).

Two cases were under consideration, but the facts of only the first case will be summarized.  In CUPE v. Lakeridge:

  • CUPE represented a bargaining unit of clerical/office employees and a unit of service employees employed by Lakeridge Health Corporation (“Lakeridge”).   The two units are subject to a combined collective agreement.
  •  The majority of the employees in the clerical unit are female, and the majority of the job classes are female job classes, while the majority of employees and job classes in the service unit are male.  The parties reached a Pay Equity Plan in 2006.
  •  The jobs in dispute are 12 female job classes in the clerical unit that were compared to similarly valued male job classes in the service unit.  The job rates (that is, the top rates) for these female and male job classes have been equalized.
  • Each job class has a wage grid, whereby employees obtain increased wages in accordance with their length of service.

The rub in the case was this:

[Male] service unit employees move more quickly through the job grid than [female] clerical unit employees.  While a [male] service unit employee may progress to the top of the pay scale after nine months of service, a [female] clerical employee would not reach the maximum pay level on the grid until 24 months of service have been completed.

CUPE thus argued that the Pay Equity Act required that wage tables be changed so that female employees could reach the maximum pay level in nine months.

The court ruled that the Tribunal’s interpretation of the Act, i.e. not requiring that pay equity be obtained in lock step was correct, saying:

Clearly, the Legislature, in enacting the PEA, made a number of policy decisions about the way in which to achieve pay equity, enacting legislation that does not eliminate all systemic wage discrimination.  As a result, the PEA may be vulnerable to a challenge under s. 15 of the [Canadian] Charter [of Rights and Freedoms] because of that underinclusiveness.  However, the Unions have failed to identify a provision of the PEA that is in conflict with the [Ontario Human Rights] Code.  … The Unions are seeking to use s. 47(2) of the Code to change the pay equity legislation and extend its reach.  However, s. 47(2) does not authorize a tribunal to read words into a statute or amend it to ensure compliance with the Code.

In short, ruled the court, the Unions had complained to the wrong judicial body.

The Pay Equity Act and the Ontario Human Rights Code

On the point of the Pay Equity Act’s interrelationship with the Ontario Human Rights Code, Justice Swinton framed the article in this way:  A final issue that the court addressed was whether the Pay Equity Tribunal’s interpretation of the PEA required or authorized a contravention of the Ontario Human Rights Code, with the result being that the Code would prevail over the PEA.

On that point Justice Swinton wrote that:

The PEA requires the equalization of the job rates for female and male job classes of comparable value.  There is nothing in the PEA that is discriminatory on its face.   Moreover, the result of the Tribunal’s interpretation of the various provisions of the PEA in the present cases does not require any discriminatory act, nor does it authorize any such act.  While the legislation may not eliminate all wage differentials between men and women in workplaces, that does not cause conflict between the Code and the PEA   If there is an ongoing inequality in wages because of the unequal grids, that is an issue to be addressed independently under the Code.  [Underlining in original, bold added.  Para. 69.]

Later adding:

It may be that individual employees have a potential sex discrimination claim against their employers because of ongoing wage disparity caused by the grids.  However, those claims should properly be brought before the Human Rights Tribunal on the basis of an alleged violation of the Code and a proper factual record.  [Citation omitted.  Para. 77]

Again, the court’s decision was that it was not appropriate for the Ontario Pay Equity Tribunal to be making such declarations, when such concerns are the domain of the Ontario Human Rights Tribunal.

It is yet to be seen what the Union’s next move will be, but one suspects that this matter is not yet over.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer.  He tweets from @SeanBawden.

1 comment:

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