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Ontario’s Pay Equity Act

with Selected Case References, 2022

Disclaimer: This Guide gives an overview of the minimum requirements of the Pay Equity Act as interpreted by the Pay Equity Office. The interpretations are drawn from our own experiences and by applying the key rulings of the Pay Equity Hearings Tribunal and the courts and is current to the date ​of publication.

Changed circumstances

In this section

14.1 (1) If, in an establishment in which any of the employees are represented by a bargaining agent, the employer or the bargaining agent is of the view that because of changed circumstances in the establishment the pay equity plan for the bargaining unit is no longer appropriate, the employer or the bargaining agent, as the case may be, may by giving written notice require the other to enter into negotiations concerning the amendment of the plan.

Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, 1996 CanLII 7947 (ON PEHT) 1996-05-28 — The Tribunal considers the significance of the certification of a bargaining agent after a plan has been deemed approved. At para 8-14, they discuss that such certification amounts to a changed circumstance that renders a plan inappropriate due to there being a resulting bargaining unit separate from the non-bargaining unit. As such, the Tribunal notes that splitting a plan is appropriate, but they hold that certification of a bargaining unit is not a changed circumstance that requires negotiations for a pay equity plan. It is a matter of form only. For the facts of the case, see the case summary under s. 5.1(1).

Ontario Nurses’ Association v. St. Joseph’s Villa, 1993 CanLII 5412 (ON PEHT) 1993-08-19 — The issue in this case was whether a bargaining agent’s certification to represent previously non-union employees for whom a pay equity plan was already posted constitutes a changed circumstance that renders the planin appropriate and requires negotiations. As in Ottawa Board, the Tribunal ordered that the Plan be split but not that a new plan be negotiated.

Niagara (Regional Municipality) v. CUPE, Local 1287, 1999 CanLII 14829 (ON PEHT) 1999-02-18 — The municipality sought to revoke an order that the pay equity plan was no longer valid due to a continuing vacancy of the male comparator class being a changed circumstance. At paras. 18-19 and 23, the Tribunal found that a vacant male comparator job class does not amount to changed circumstances if there is no pay equity impact or substantive change in job content. Notwithstanding the on-going vacancy of the male job class, pay equity was achieved and maintained in accordance with s. 7 of the legislation.

Women’s College Hospital (No. 2) (1990), 1 P.E.R (ON PEHT) 1990-01-09 — This was a request for a reconsideration of a previous unanimous decision by the Tribunal. The Tribunal notes that its decisions are final and the Tribunal’s discretion to reconsider a decision ought to be exercised only where there are compelling and extraordinary circumstances which make it appropriate. They note that one of the considerations is whether there has been a change in circumstances making the order inappropriate, but such was not found here.

Hilton Works v. MacDonald, 1993 CanLII 5422 (ON PEHT) 1993-10-13 — An employer made an application alleging that there had been a change in the identity of the employer constituting a change in circumstances. The Tribunal found that there is no jurisdiction to consider changed circumstances at every point during the development of a pay equity plan. They found that a pay equity plan must exist as a precondition to any inquiry into an allegation of changed circumstances. Once an employer is identified as the pay equity employer it cannot access the change in circumstances provision until a pay equity plan is in place.

Canadian Union of Public Employees, Local 883 v. Salvation Army Grace General Hospital, 1995 CanLII 7211 (ON PEHT) 1995-07-20 — After starting negotiations, changes in the workplace caused the employer to attempt to use different male comparators than those agreed in the Memorandum of Agreement. The Tribunal ordered the parties to conclude the negotiations of the pay equity plan in accordance with the memorandum of Agreement, stating that the employer could give notice to union thereafter if it believed there were changed circumstances. Parties are required to examine compensation practices at a particular snapshot in time during the implementation stage based on the employer’s obligation date. Changes in circumstance can be considered after pay equity has been implemented.

University of Western Ontario Faculty Association – Librarians & Archivists v University of Western Ontario, 2018 CanLII 116055 (ON PEHT) 2018-11-28

A bargaining unit asserted that the Letter of Understanding that represented the parties’ agreement to create a new pay equity plan was akin to giving notice under section 14.1 for “changed circumstances”. They also argued that certification of the new union constituted a changed circumstances under the Act. The Tribunal noted that neither party asserted the previous Plan was no “longer appropriate” under section 14.1 so there was no obligation to enter into negotiation efforts. Where no such assertion is made, the only action the parties were required to take was to split the previous Plan so that, on a going forward basis, there would be a pay equity plan that applied only to the members of the bargaining unit.

Ontario Secondary School Teachers’ Federation v Ottawa-Carleton District School Board, 2019 CanLII 94412 (ON PEHT) 2019-10-03 — The bargaining unit took issue with a Notice of Decision issued by a Review Officer. The Review Officer’s decided that a new pay equity plan did not need to be bargained pursuant to section 14.1 and the union alleges a lack of procedural fairness. The Tribunal held that their jurisdiction only covers those issues that have been addressed by a Review Officer. Here, the Tribunal would only be able to review the issue of whether there has been changed circumstances that statutorily require a new pay equity plan under section 14.1, which was an uncontested issue. Until the Review Office has declined to inquire into a complaint, an application filed out of concern that the Office would not act on an application to review services is premature.

Application of s. 14

(2) Clause 14 (2) (b) and subsections 14 (3), (4) and (5) apply, with necessary modifications, to the negotiations and to any amendment of the plan that is agreed upon.

Failure to agree

(3) If the employer and the bargaining agent do not agree on an amendment before the expiry of 120 days from the date on which notice to enter into negotiations is given, the employer shall give notice of the failure to the Commission.

Same

(4) Subsection (3) does not prevent the bargaining agent from notifying the Commission of a failure to agree on an amendment by the date referred to in that subsection.

Non-bargaining unit plan

(5) If the employer is of the view that, because of changed circumstances in the establishment, the pay equity plan for that part of the establishment that is outside any bargaining unit is no longer appropriate, the employer may amend the plan and post in the workplace a copy of the amended plan with the amendments clearly indicated.

BICC Phillips Incorporated v. Group of Employees, 1997 CanLII 12223 (ON PEHT) 1997-10-07 — Non-unionized employees believed their employer should post a new plan based on changes in circumstances, along with actions to maintain pay equity. At para. 16-18, the Tribunal found that an allegation of changed circumstances cannot be used as a justification for failure to maintain. An employer has a unilateral right to revise and repost the plan due to changed circumstances.

Same

(6) Subsection 15 (2) and subsections 15 (4) to (8) apply, with necessary modifications, in respect of an amended plan described in subsection (5).

Adjustments

(7) If a plan is amended under this section, the compensation adjustment for each position to which the amended plan applies shall not be less than the adjustment that would have been made under the plan before it was amended. 1993, c. 4, s. 9.

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