The Act recognizes that the bargaining agent represents its members with respect to pay equity issues in the workplace. Individuals in female job classes who are represented by a bargaining agent do not have any role in the pay equity process. Represented employees do not have the right to object to a pay equity plan before it becomes “deemed approved” (for non-unionized employees, an objection period is granted through [15. (7)] of the Act). A pay equity plan that is negotiated between the employer and bargaining agent and signed by both parties becomes “deemed approved” on all employees covered by the plan once it is posted by the employer.
Deemed approved plans may become the subject of a complaint brought by a represented employee. The Tribunal has recognized that that employers and unions cannot ignore their obligations under the Act with impunity. Where a member of a bargaining unit in a female job class makes a complaint under , he/she must be able to demonstrate that the deemed approved plan does not meet the minimum standards of the Act as set out in Part I. Examples of the type of contravention that might be brought forward by a represented employee include: the plan did not determine its female and male job classes, the legislated criteria of skill, effort, responsibility and working conditions were not considered when the job classes were valued, the plan did not use the appropriate job rates for the female job class or comparable male job class(es) when making comparisons.
However, if the pay equity plan did value the job classes using skill, effort, responsibility and working conditions, then the represented employee in his/her complaint must show that the valuation was unreasonable. In these situations, the Tribunal has indicated that deference must be given to the negotiating parties, because many aspects of achieving pay equity are not capable of absolute determination and there are acceptable ranges of outcomes in the valuation process Houston v. Centennial College, 2002 CanLII 49436 (ON PEHT), Group of Employees v. Ontario (Management Board Secretariat), 1999 CanLII 14827 (ON PEHT), and Munro v. Ottawa Heart Institute, 2004 CanLII 60148 (ON PEHT).