The short answer is: “Yes, if you believe that your employer and union have contravened the Act”.
The long answer is this:
If this is your situation, you need to understand a couple of important points. First, as a union member, you are part of an established collective and your union has authority to negotiate agreements with your employer on your behalf and you are bound by those agreements. Secondly, because of the first point, your application needs to show that any union-management agreement dealing with pay equity in your organization contravenes the Act – this is different from stating that you disagree with what the union has said or agreed-to on your behalf.
However, you still have the right to file a complaint, with or without the support of your union. If you’re uncertain about your situation, just make your best effort to fill out the Application for Review Services. A Review Officer will be assigned to your file, and will ask you more questions as part of our regular process of looking into concerns.
Where possible, you should discuss your concerns and questions with your union, but this is not a requirement.
Under the Pay Equity Act, you have the right to ask your employer for information about pay equity in your organization. For example, you can request a copy of the company’s pay equity plan; in cases where an employer has not been required to create a “plan”, you can ask instead if your employer has done pay equity. If you belong to a union, you can also ask your union rep.
Another way of asking for information about pay equity is to ask how your female job class was compared to a male job class.
No, the Pay Equity Act does not require the Pay Equity Office to serve as a repository of pay equity plans. Instead, employers and unions are responsible for ensuring that proper records are kept and are made available.
The key here is to understand that the Act deals with establishing equity between comparable male and female job classes; the Act does not deal with an individual, nor does it propose comparison between individual employees. Therefore, you should start by finding out whether you are in a female job class.
The PEO does not keep a registry of employers who are pay equity compliant. Under the Act, the process is ‘self-managed’ and employers are responsible for achieving and maintaining pay equity. Employers are not required to file pay equity plans with the PEO. The PEO does not approve or keep records of pay equity plans. If a complaint is made to the PEO, a file is opened, and a Review Officer investigates.
Neither the Pay Equity Act nor the Pay Equity Office require employers to hire consultants or lawyers. In many cases, employers are able to complete pay equity analyses and pay equity plans on their own. The final decision of whether to hire an outside specialist belongs to each employer.
In fact, the Act requires employers to “maintain” pay equity. Whenever changes are made in the workplace, employers are responsible for ensuring that those changes do not introduce new gender-based wage gaps. Note that the Act allows employers to decide when these reviews are done; if adjustments are needed, employers are obliged to pay out those adjustments retroactively to the date of those change(s).
Under the Act, the gender predominance of a job class is an element where a range of options and possible choices is permitted. In the case of Pioneer Youth Services (PYS Associates Ltd.) v. Canadian National Federation of Independent Unions, 2002 CanLII 49449 (ON PEHT), the Tribunal has ruled that where there is a complaint that is founded in an employer’s exercise of discretion, the decision the employer made will be acceptable if it was considered to be reasonable, given the specific circumstances in which the determination was made. The Tribunal has also said that a change in gender incumbency over the period of time may require an employer to review the gender predominance.
The Act requires employers to apply three criteria or tests to determine the gender of the job class:
Gender stereotype of the field of work
However, the Tribunal has raised a caution about the single incumbent job class especially where only one person has occupied the job for many years and has specified that some weight must be given to the gender stereotype of the field of work.
Historical incumbency refers to pattern of employment for a particular job class within an establishment. For example, if the job class in question is one that has been filled mostly by women, and a man is recently hired, it may still be considered a female job class in that establishment. Historical incumbency can only apply to situations where the job classes existed when pay equity requirements were imposed. Logically, if the employer is considered a new establishment, then the historical incumbency of job class would not apply because there would be no history of the job class in the establishment.