If an employer was required to post and implement a pay equity plan in accordance with Part II or Part III.2 of the Act, the plan is considered deemed approved by the Commission. It remains a deemed approved pay equity plan even if a bargaining unit becomes certified. Employers are required to disclose information to the bargaining agent about how the employer achieved pay equity.

While certification of a bargaining unit is considered a change in circumstances, it does not automatically require that a new or amended plan be negotiated. The original plan is split into two plans: a plan for the bargaining unit and one for the non-bargaining unit employees. This approach was ordered in the case of Ontario Nurses’ Association v. St. Joseph’s Villa, 1993 CanLII 5412 (ON PEHT) where the Tribunal said: “…our order extends to the form of the Plan only, and not to its content or the comparison system on which it is based”.

A bargaining agent or an employer may view the split plan as being inappropriate for the bargaining unit. A bargaining agent may also be of the view that the split plan does not meet the requirements of Part I.