(7) (1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.
Commport Communications International Inc. v. Pay Equity Commission, 2006 CanLII 61261 (ON PEHT) 2006-07-14 — The employer argued they did not need to take steps to establish pay equity because their corporate policy statement included a statement “adjusting to meet pay equity requirements.” A Review Officer concluded that the employer had not taken appropriate steps, and directed it, in some detail, to collect job information, evaluate jobs, make comparisons, pay adjustments and to post the Order in the workplace. The Tribunal affirms the Officer’s decision and confirms the proactive requirement for employers to take the specific steps under Part I in order to achieve pay equity.
Oakwood Retirement Communities Inc. v. S.E.I.U. Local 1 Canada, 2010 CanLII 76245 (ON PEHT) 2010-12-15 — A union sought to challenge a pay equity process undertaken by the employer under an agreement with the predecessor union. At para. 54 and 55, the Tribunal discusses the steps to follow to achieve compliance with the Act for Part I employers. They also state that Part I employers cannot benefit from ‘deemed compliance’ status as under Part II and must be incompliance with the Act from the outset.
Corporation of the City of Windsor v Shirley D. Moor, 2017 CanLII 22919 (ON PEHT) 2017-04-11 — The Applicant complained that the Employer and Union violated section 7 of the Act by reducing her wages for a two-year period below the pay equity job rate that she previously achieved. The Tribunal held that while an employer is entitled to implement wage grids after pay equity is achieved, it must do so in a way consistent with the Act. Therefore, under the obligation to maintain pay equity, if the employer is implementing a wage grid, the actual wages that that employees in female job classes received must either remain constant or must increase. The employer cannot reduce the wages. The Tribunal found the reducing the wages re-emerges the wage gap, as this would make the goal of providing pay equity under the Act meaningless.
York Region District School Board v. Canadian Union of Public Employees [2011] O.P.E.D. No. 36 — The Tribunal refused an application asking them to adjust the wage grids of female job classes to mirror those of male classes. The Act does not require that the wage grid for female job classes be compressed to mirror comparator male job classes. Section 7(1) does not stand alone but is part of a comprehensive statutory scheme. Section 7(1) does not override other specific language in the Act and the Tribunal must take account of the totality of the Act’s provisions. Section 7(1) did not confer some kind of “plenary or over- arching jurisdiction on the Tribunal”.
Call-A-Service Inc v An Anonymous Employee, 2008 CanLII 88827 (ON PEHT) 2008-04-28 — The Tribunal refused an employer application asking them to declare that pay equity had been achieved. They held that maintenance, the means by which an employer ensures that compensation practices are kept up- to-date and remain consistent with pay equity principles, is an ongoing responsibility. It includes reviewing job classes regularly to capture changes to job duties and responsibilities, which may require pay equity adjustments. Some examples of changes resulting from ongoing maintenance are changes to job titles; changes to the duties and responsibilities of a job that change its job class and salary scale; the creation or elimination of a job class; and changes in gender dominance. Where there is a deemed approved pay equity plan, maintenance does not open up a deemed approved pay equity plan to objections. See also Centennial College (2001–02), 12 P.E.R. 102, at para. 20
Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, 1996 CanLII 7947 (ON PEHT) 1996-05-28 — The Tribunal determined that “to maintain” is very general language, with several different meanings in the administration of compensation practices. On-going and regular maintenance of an employer’s compensation practices may, or may not, affect the provision of pay equity. For the facts of the case, see the case summary under s. 5.1(1).
Canadian Union of Public Employees v. Corporation of the City of Peterborough, 2015 CanLII 55324 (ON PEHT) 2015-08-31 – The Tribunal held that the City was in breach of its duty to maintain pay equity. At para. 15, the Tribunal says that maintenance of pay equity is excused only in accordance with the exceptions in s. 8 of the Act. The Tribunal found that the City contravened this section by not maintaining pay equity in accordance with the pay equity plan negotiated by the parties. The Employer unilaterally excluded a male job class due to its special market adjusted wage rate, which had been agreed to by the parties’ collective agreement.
University of Western Ontario, 2018 CanLII 116055 (ON PEHT) 2018-11-28 – A bargaining unit asserted that the Employer failed to comply with the Act when they did not follow steps in a Letter of Understanding. After a pay equity plan has been established, maintenance is required under the Act. An Employer and Union can negotiate a new (or amend an existing) pay equity plan if either party asserts that the original plan is ‘no longer appropriate’ in accordance with s.14.1 of the Act. But, as in this case, if no such assertion has been made, the Tribunal cannot enforce negotiation efforts operating outside the requirements of the Act. No evidence suggested that engaging in the process under the LOU was necessary for the Employer to meet its maintenance requirements under section 7 of the Act.
Idem
(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1). R.S.O. 1990, c. P.7, s. 7.
Oakwood Retirement Communities Inc. v. S.E.I.U. Local 1 Canada, 2010 CanLII 76245 (ON PEHT) 2010-12-15 — A union sought to challenge a pay equity process undertaken by the employer under an agreement with the predecessor union. At para. 69, the Tribunal discusses the fact that employers subject to Part I of the Act are not required to negotiate pay equity with a bargaining agent, however, employers must seek agreement from the bargaining agent on gender predominance in the context of a consideration of historical incumbency and gender stereotypes.
Fedoruk v. Thunder Bay Police Service, 2006 CanLII 61258 (ON PEHT) 2006- 11-01 — The Tribunal was asked about the relevance of a male comparator job class that had been eliminated. At para. 6, the Tribunal found that employers and bargaining agents are required to contemplate existing jobs in the workplace when achieving and maintaining pay equity. No requirement exists to reach back in time and consider jobs which are no longer part of the plan.
York Region Board of Education v. Canadian Union of Public Employees, Local 1734, 1995 CanLII 7202 (ON PEHT) 1995-01-18 — The Tribunal dismissed the employer’s application to revoke an order that they failed to maintain pay equity with respect to certain female job classes. Section 7(2) operates to prohibit a bargaining agent from acting so as to condone an employer’s failure to maintain pay equity. This could occur where the bargaining agent negotiated an agreement that clearly does not provide for maintenance and then failed to take other steps to redress that problem. Here, the Union did take other steps. See also: Well and County General Hospital (23 February 1994) 0340‑92 (P.E.H.T.).
Corporation of the City of Windsor v. Shirley D. Moor, 2017 CanLII 22919 (ON PEHT) 2017-04-11 — The Tribunal found that the Union and Employer violated the Act when the Union made an agreement that reduced an employee’s wages below the pay equity job rate she had previously achieved. An Employer cannot introduce a wage grid after achieving pay equity that effectively reduces the wages for Employees in a female job class without an express exception under the Act as to do so would be inconsistent with the purpose and intent of the Act.
Ontario Nurses’ Association v. Participating Nursing Homes, 2016 CanLII 2675 (ON PEHT) 2016-01-21 – The Tribunal considered a situation in which the employer had achieved pay equity using the proxy methodology of comparison. In considering “maintenance”, the Tribunal said that the plain meaning of the word suggests an obligation to continue the compensation/value relationship that is established when a female job class rate becomes pay equity compliant. At para. 107, it is stated that a change in either the job class compensation or its value would affect that relationship. Any maintenance analysis cannot ignore the ongoing monitoring of changes in the value of jobs (at para. 114).
