Fair Measures – June Newsletter 2015

Ontario’s Pay Equity Act includes a specific exception that says an employer does not have to pay maintenance if they can show that a wage gap exists because of a difference in “bargaining strength”. While the Act has been in place since 1990, there has never been a case that directly addressed the use of the “bargaining strength” exception; until now.

In a decision dated February 3, 2015 [2015 Carswell Ont 2176], the Pay Equity Hearings Tribunal found that the Ottawa Public Library had failed to completely achieve and maintain pay equity since its pay equity plan was created in 2006, including an important finding that the Library had failed to show that the reason for the ongoing pay gap was a difference in “bargaining strength” between the female and male jobs, and ordered the Library to make retroactive payments to employees for all the years that female job classifications were paid less than their male comparators.

This decision ensures that the bargaining strength exception cannot be used by employers to justify re-opening the wage gap and undermining the purpose of the Pay Equity Act.

The background for this case was that, since the Library was a predominantly female workplace, the City of Ottawa had been used as the appropriate comparator for finding male jobs of equal value. Despite this, for several years the Library had refused to pay female job classifications the same amount as their equivalent male job classifications at the City on the basis that the difference in pay was not due to gender inequality but because the male job classifications had greater bargaining strength.

The Library relied on two main arguments to support its case: the City bargaining unit was much larger than the Library’s bargaining unit, and the City bargaining unit used interest arbitration rather than strike/lockout to resolve disagreements on wages. The pay equity legislation directs that public libraries use their municipal government for male comparators, which is almost always going to be a larger unit; and many predominantly female workplaces have to look to other organizations to find male comparators; so the argument that bigger equals more bargaining strength, if accepted by the Tribunal, would have opened the door for a lot of employers to use this exception to justify women continuing to earn less than men for equivalent work.

The application of this exception is particularly important as Canada’s gender wage gap has continued to worsen since pay equity legislation was enacted and we now rank behind most other OECD countries when it comes to equal pay for equal work.

We were able to show the Tribunal that there was not a clear difference in bargaining strength between the City and the Library. We successfully argued that both the size of, and the types of work in, the City and Library bargaining units have stayed the same since the City was accepted as an appropriate comparator and the Library had achieved the same or better wage increases for some years. The Tribunal agreed that there was no evidence that the City unit had somehow gained additional bargaining strength in the years that it obtained larger pay increases.

This decision ensures that the bargaining strength exception cannot be used by employers to justify re-opening the wage gap and undermining the purpose of the Pay Equity Act.

2.3 Million Decision | Fun Fact | Ottawa Employee Wage Increase | Meet The Team | Conference

How to Apply for Long Term Disability for PTSD | Run For At Risk Youth | Rock For Public Services

2.3 Million Decision | Fun Fact | Ottawa Employee Wage Increase | Meet The Team | Conference

How to Apply for Long Term Disability for PTSD | Run For At Risk Youth | Rock For Public Services

On May 19, 2015, an Interest Arbitration Panel chaired by Russell Goodfellow awarded the following economic increases for 2014 and 2015 to CUPE 503 members of the Inside/Outside bargaining unit at the City of Ottawa:

2014 – 1.93% effective January 1, 2014

2015 – 1.75% effective January 1, 2015 + 0.25% effective May 19, 2015

The compounded effect of this Award means that CUPE Local 503 members will receive nearly 4% in economic increases over 2 years. While the City was offering a 1.4% increase for each of the two years, the Union presented external and internal comparators demonstrating that the City’s proposal was both out of line with other municipalities and the Consumer Price Index. Ultimately, the Arbitration panel rejected the City’s proposal and instead awarded a fair increase significantly over and above what the Employer offered.

The Inside/Outside bargaining unit is the City’s largest unit with over 6000 employees including daycare workers, Roads and Parks employees, Waste Collection Officers, By-law Officers, clerical personnel and Long Term Care Staff. The Inside/Outside group is widely known within the City as the “leader with the best terms” whose members provide “multiple services integral to the City of Ottawa.”

The sole issue presented to the Board for determination was the appropriate amount of economic increases for the period of the collective agreement (2014 and 2015). The parties were able to settle all remaining outstanding issues.

The same parties are still waiting for Interest Arbitration awards for the Part-Time Recreation and Culture group and the Aquatics group.

KEY HIGHLIGHTS:

1. Wages:

January 1, 2014 1.93%

January 1, 2015 1.75%

May 19, 2015 .25%

2. TOIL – TOIL bank increases from 100 hours to 120 hours effective July 1, 2015

3. Overtime Meal Allowance – increases from $8.00 to $9.00 effective July 1, 2015

4. Mileage – increases from $0.53 to $0.54 effective July 1, 2014

5. Creation of Eligibility Lists – The parties agree to establish eligibility lists whereby the Employer may use candidates from the original job competition to fill subsequent vacancies or new positions without having to post the vacancies. The lists will be valid for 12 months.

6. Letters of expectation and/or instruction shall be removed from an employee’s file after 18 months and cannot be relied upon for further disciplinary action after an 18 month window

7. CUPE 503 negotiated a change in the language so that part-time employees who work in full-time positions will be credited with the same seniority that a full-time employee would earn in the same position

8. CACC employees will now have the ability to bank hours earned for working a Statutory Holiday

9. CUPE 503 successfully preserved the following benefits which the Employer had proposed to take away:

a. Summer Hours

b. Longevity Pay

c. Red-Circling Protection

d. Retiree Benefits – City will continue paying 50% of the cost of Retiree Benefit plans for former Regional and City employees

2.3 Million Decision | Fun Fact | Ottawa Employee Wage Increase | Meet The Team | Conference

How to Apply for Long Term Disability for PTSD | Run For At Risk Youth | Rock For Public Services

Frances Middleton joined Jewitt McLuckie & Associates in July, 2014.

After practising criminal law as a Duty Counsel in downtown Toronto and completing her articles with Legal Aid Ontario, Frances is excited to expand her interests in social justice and human rights into practising labour and employment law. Originally from Beverley, England, she grew up in Corner Brook, Newfoundland & Labrador.

Click to learn more

2.3 Million Decision | Fun Fact | Ottawa Employee Wage Increase | Meet The Team | Conference

How to Apply for Long Term Disability for PTSD | Run For At Risk Youth | Rock For Public Services

Representing Employees with Invisable Disabilities and Addictions

Thursday, November 19th and Friday, November 20th, 2015