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November 30, 2006 |
Issue No. 1 |
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— CONTENT— |
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PAY EQUITY COMPLAINTS CAN BE BROUGHT UNDER HUMAN RIGHTS LEGISLATION, TRIBUNAL RULES In the absence of pay equity legislation in Saskatchewan, employees can bring such complaints under Saskatchewan's Human Rights Code, by alleging gender-based discrimination, the Saskatchewan Human Rights Tribunal has ruled. Although the Human Rights Code does not specifically refer to pay equity, or provide a scheme to evaluate different jobs against each other, the Code's purpose is to eliminate discrimination in the workplace and it should be liberally interpreted to ensure that the goal is fulfilled, the Tribunal stated. Details below. EMPLOYEES ON MATERNITY LEAVE WHEN NEW COLLECTIVE AGREEMENT COMES INTO EFFECT ARE ENTITLED TO THE NEW AGREEMENT'S ENHANCED MATERNITY BENEFITS, SAYS NEWFOUNDLAND AND LABRADOR COURT OF APPEAL If employees are already on maternity leave when a new collective agreement with enhanced maternity benefits comes into effect, are they entitled to the improved benefits? A recent decision of the Newfoundland and Labrador Court of Appeal says that they are. All employees in the bargaining unit are entitled to the benefits of the new collective agreement, whether or not they began to use the benefit before the new agreement came into effect, unless they are specifically excluded, the Court explained. Only one collective agreement can apply at a time, and unless otherwise stated the benefits of an agreement do not apply to some employees but not others. Details below. |
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— DETAILED REPORTS — |
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PAY EQUITY COMPLAINTS CAN BE BROUGHT UNDER HUMAN RIGHTS LEGISLATION, TRIBUNAL RULES The Facts: Six women working in the female-dominated position of clerk steno at the University of Saskatchewan launched complaints with the Saskatchewan Human Rights Commission against the university, alleging that they had been discriminated against, because they were paid an hourly wage that was less than what employees in a number of male-dominated positions received. The complainants claimed that the university's wage scale was gender-biased, and that it violated the Saskatchewan Human Rights Code, which prohibits discrimination on the ground of sex. Without an investigation, the Chief Commissioner Donna Scott dismissed the complaints on March 9, 2005, finding that, on their face, the male-dominated comparator jobs were not similar. She also ruled that, since the Code contained no framework for the Commission to determine whether or not different jobs were equivalent in value, the Commission had no mandate to create such a framework on its own, and the complaints therefore fell outside the Code. She held that the Commission could entertain complaints only when the female-dominated and male-dominated positions to be compared were the "same or similar" on their face, or "obviously equivalent." The clerk stenos requested that the Saskatchewan Human Rights Tribunal review the Chief Commissioner's dismissal. The Decision: Tribunal Chair Karen Prisciak ruled, in six virtually identical decisions, that the Saskatchewan Human Rights Commission has the power to consider pay equity complaints. It was unreasonable for the Chief Commissioner to dismiss the complaint without an investigation into the female-dominated and male-dominated positions, she also held. Moreover, the fact that the Code set out no scheme of job comparison and evaluation did not mean that the women's complaints were invalid. Prisciak made it clear that, under the Code, comparisons can be made where men and women are not paid equally for work of equal value. She reasoned: "The object of Section 16 of the Code is to prevent discrimination in the workplace. Such discrimination would arise where men and women are not paid equally for work of equal value. Nowhere in the Code does it say that men and women must have the same title or perform exactly the same type of work before a comparison can be made." In Prisciak's view, the Chief Commissioner's focus on the fact that job titles were different served to "support job stereotypes as opposed to any functional difference between the jobs." She noted that, while the job title of the female-dominated clerk steno position and the titles of the male-dominated jobs such as plumber supervisor and community peace officer connoted different skills, they did not reveal anything about the duties of the jobs. She wrote: "As there was no investigation I cannot determine whether it was reasonable to assume that these positions were so dissimilar that a comparison could not be made. Without an investigation which evaluates objective factors of these positions one cannot determine if the work performed by the complainant is undervalued and underpaid when compared to the male-dominated positions." Prisciak found it unreasonable for the Chief Commissioner to dismiss the complaint based on the appearance that the jobs were dissimilar, without conducting an inquiry. By interpreting the Code too narrowly, the Chief Commissioner limited pay equity comparisons to facially similar jobs, threatening to defeat the purpose of the Code, which was to prevent discrimination in the workplace, including discriminatory pay schemes. In Prisciak's opinion, the Chief Commissioner's decision "effectively preclude[d] an assessment of whether [a female employee] is paid less for work of equal value based on nothing more than a job title." Prisciak also decided that the fact that the Code contained no defined scheme to determine job equivalency was not fatal to the claims of the clerk stenos as the Code has the status of "fundamental law", and should be interpreted liberally in order to ensure that it achieves its goal of eliminating discrimination. In support, she cited Supreme Court of Canada Justice L'Heureux-Dubé's dissent in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, and the Supreme Court's decisions in O'Malley v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536, and British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (Meiorin), [1999] 3 S.C.R. 3. Prisciak concluded: "The suggestion that, without a prescribed scheme, the Human Rights Commission cannot consider the complainant's allegations does not embrace the liberal interpretation the Supreme Court suggests a tribunal bring to the interpretation of human rights legislation. The interpretation of human rights legislation is a dynamic undertaking which reflects the challenges to our previously accepted social norms. The courts have been vigorous in their protection of human rights, and in doing so, have expanded the protections beyond the literal interpretations of human rights legislation." Applying a liberal approach, Prisciak looked outside the confines of the Code to find a basis upon which the Commission would be able to evaluate positions in a pay equity complaint. She found assistance in the Canadian Human Rights Act, which contains comparison criteria for assessing the value of work, including skill, effort, responsibility and working conditions, and Saskatchewan's Equal Wages Guidelines, which identify the same criteria. Comment: Previously, in 1999, in response to a preliminary motion, the Saskatchewan Court of Queen's Bench, in Canada Safeway Ltd. v. Saskatchewan Human Rights Commission, [1999] S.J. No. 228 (QL), held that, while Saskatchewan lacked pay equity legislation, the employment discrimination provisions of the Human Rights Code gave the Commission the jurisdiction to investigate pay equity complaints. However, since it was issued in response to a preliminary motion, it was not clear that the Canada Safeway decision was a binding precedent, and Chief Commissioner Scott, in the case under review, held that if the legislature had intended the Commission's jurisdiction to extend to the comparison of facially dissimilar jobs, it would have inserted a framework for such comparisons into the Code, or enacted pay equity legislation like other provinces. As a result, she narrowly construed the Commission's jurisdiction to apply only to complaints where the male- and female- dominated jobs were facially similar, holding that "a violation may occur in situations where it can be established that a female-dominated position is paid at a wage rate less than a male-dominated position, if the work performed in the female-dominated position is obviously and clearly, on the facts, of equal value to, or greater value than, the work performed in the position dominated by men." Prisciak's decision makes it clear that the similarity need not be obvious for the Commission to take jurisdiction, finding such an approach to be more consistent with the broad interpretation to be given to human rights legislation. Meanwhile, pressure is mounting on the Saskatchewan government to enact pay equity legislation and establish a separate pay equity commission. Case Name: Kathleen Swann v. University of Saskatchewan |
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EMPLOYEES ON MATERNITY LEAVE WHEN NEW COLLECTIVE AGREEMENT COMES INTO EFFECT ARE ENTITLED TO THE NEW AGREEMENT'S ENHANCED MATERNITY BENEFITS, SAYS NEWFOUNDLAND AND LABRADOR COURT OF APPEAL The Facts: A group of registered nurses were on maternity leave on July 22, 2002, when a new collective agreement between their union, the Newfoundland and Labrador Nurses' Union, and their hospital employer, the Health Care Corporation of St. John's, came into effect. They continued to be on maternity leave after the new agreement was signed. The maternity leave provisions in the new agreement allowed up to 52 weeks of combined maternity and parental leave, which was an improvement on the 33 weeks to which the nurses were entitled under the expired agreement. After July 22, 2002, the hospital continued to apply the old maternity leave provision to the nurses who had already commenced their leave. The union filed a policy and a group grievance on behalf of all employees in the bargaining units at the hospital, complaining that the hospital was incorrect in interpreting the new agreement in a way that disentitled the nurses from receiving the improved maternity leave benefit. An arbitration board considered whether the nurses who commenced their 33-week maternity leave under the expired agreement were entitled to 52 weeks as provided in the new agreement. A majority of the arbitration board ruled that, because the nurses were already on maternity leave on the date when the new collective agreement with its improved benefits came into force, they were not entitled to the increased maternity leave. The majority relied on a provision of the expired collective agreement stating that employees "shall be permitted to commence maternity leave at the beginning of the 6th month of pregnancy." Since the nurses had commenced their leave under the expired agreement, they could not "re-commence" it under the similar clause in the new agreement, the majority held. In addition, the new agreement's retroactivity clause applied only to salaries, not to maternity leave benefits. The majority concluded that, if the hospital and the union had wanted to extend the enhanced benefit to employees already on maternity leave, the new agreement would have clearly said so. The union applied for judicial review of the arbitration award. Finding that the board had committed an error in basing its decision on the provision of the expired agreement governing commencement of maternity leave, the trial judge determined that the real question hinged on an article of the new agreement setting out the benefit to which the nurses were entitled: "While on maternity/adoption/parental leave, an employee shall continue to accumulate service for seniority, annual leave, severance pay, sick leave and step progression to a maximum of 1950 hours [52 weeks]." The wording of the clause simply applied to those who (a) were employees, and (b) were on maternity leaves, the trial judge ruled. When the maternity commenced was immaterial, and the benefit should apply to the women who began their leaves before the new agreement came into effect. While the board had relied on the absence of a retroactivity clause for salaries in denying the nurses the additional maternity benefits, the trial judge ruled that the case had nothing to do with retroactivity. It was a simple question of a benefit being applied on a "go forward" basis to employees with a particular status. The judge held that there could be only one collective agreement, and that the board's interpretation, in effect, created two levels of employees and two types of benefits, contrary to normal practice. The judge concluded that the arbitral award was unreasonable in light of the clear wording of the new collective agreement, and due to the consequence that it would create a separate category of employees not contemplated in the agreement. The hospital appealed the decision to the Newfoundland and Labrador Court of Appeal. The Arguments: Both the hospital and the union agreed that the standard of review of the board's decision should be reasonableness. The hospital urged the court to find the board's decision to be reasonable. The hospital argued that, because there was no specific language indicating that Article 20.06 of the new agreement would apply to nurses who were already on maternity leave, they must be covered by the expired agreement's 33 week benefit period, in spite of the fact that Article 40.01 of the new agreement terminated the previous agreement. The union asked the court to find the board's decision to be unreasonable, arguing that the board should not have based its determination on the provisions of the expired collective agreement; rather, the new agreement covered the nurses on maternity leave and they should receive the enhanced benefit. The Decision: Justice Dennis Roberts, writing the unanimous judgment of the Court of Appeal, dismissed the hospital's appeal, agreeing with the trial judge that the board was unreasonable in its decision that nurses who were already on maternity leave when the new collective agreement came into force could claim only the maternity benefits in the expired agreement. All employees in the bargaining unit had to be covered by a single collective agreement, rather than having different types of entitlements based on different collective agreements. By concluding that the nurses were entitled only to the benefits set out in the 1999 agreement, the board completely disregarded the provision of the 2002 agreement which clearly stated that it represented the entire agreement between the parties. Observing that Newfoundland and Labrador courts should generally be guided by the (less deferential) reasonableness standard when reviewing arbitrators' awards, rather than the (more deferential) standard of patent unreasonableness that had previously been used, Justice Roberts held that the arbitration board's award was unreasonable. Justice Roberts held that the board was wrong to focus on the clause of the expired agreement referring to the "commencement" of the nurses' maternity leave, while ignoring the clause in the new agreement that was truly at issue: the one containing the 52 week maternity leave benefit. That clause clearly covered everyone who was (a) an employee, and (b) on maternity leave, regardless of whether the leave commenced during the life of the expired agreement or the new agreement. Roberts also agreed with the trial judge that the board had ignored the fact that the new agreement constituted the whole agreement between the hospital and the union, and that the nurses were covered by it: "[T]he Board completely disregarded Art. 40.01, where the parties stated that '[t]his Agreement is the entire Agreement ...' and Art. 50.01 where, except for specific retroactivity for salaries, they said that the Agreement was to be effective from the date of signing. How much clearer could the wording be? If the parties had wanted maternity leave benefits for nurses on leave before July 22, 2002 to be excluded from the clear intent of Art. 50.01, they would have said so, as they did in Art. 49.01 for salaries. The Board engaged in linguistic analysis when there was no need to do so. The combined provisions are, indeed, so obvious in their meaning that it would require specific language to exclude affected employees from the extended maternity benefits. It seems to me that reason and fairness would also demand such specific language. Otherwise, as an example, a nurse commencing her maternity leave in the week before July 22, 2002 would be deprived of the extra nineteen weeks that a companion nurse would be entitled to commencing her maternity leave in the week following." Justice Roberts also agreed with the trial judge that there was no issue of retroactive benefits in the case. Article 40.01 of the new agreement set out that "this agreement is the entire Agreement of the parties hereto terminating all prior agreements," Justice Roberts noted. He cited a line of arbitration cases standing for the principle that there can only be one collective agreement at a time, relying in particular on United Automobile, Aircraft And Agricultural Implement Workers of America (Uaw-Cio), Local 112 v. DeHavilland Aircraft of Canada Limited (1950), 2 L.A.C. 465 (Gale), and the recent decision of the Supreme Court of Canada in Hémond v. Coopérative féderée du Québec, [1989] 2 S.C.R. 962, in which Justice Gonthier held that it would be an "untenable conclusion" in light of legislation and the fundamental principles of labour law to hold that "a collective agreement can be divided and may not govern certain members of a bargaining unit." Furthermore, section 84(1) of the Newfoundland and Labrador Labour Relations Act confirmed the principle of one collective agreement for all members. Justice Roberts wrote: "The language of the collective agreement, the language of s.84(1) of the Labour Relations Act and the cases referred to all support the one agreement principle. Starting with that principle, which one must, the clear language of a collective agreement prevails unless there is equally clear language that it is not to apply. In other words, if the parties here had meant to create two classes of employees for maternity benefit purposes, they should have done so. It is not the other way around, as the employer has argued." Comment: Arbitrators' decisions on contract interpretation, when sheltered by a statutory "privative" clause restricting oversight by the courts, had previously been reviewable only on the deferential standard of patent unreasonableness, as set out by the Supreme Court of Canada in Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 (1998), 160 D.L.R. (4th) 1. The Supreme Court revisited that decision in the Alberta context in Voice Construction Ltd. v. Construction and General Workers' Union, Local 92, [2004] 1 S.C.R. 609, and seems to have drawn a distinction between "full" and "partial" privative clauses in determining the appropriate standard of review for arbitrator's decisions. In that case, Alberta's partial privative clause pointed to the less deferential "reasonableness" standard, the Supreme Court concluded, and Justice Roberts has found this to be the case also in Newfoundland and Labrador. By contrast, in the recent case of Lakeport Beverages v. Teamsters, Local 938 (2005), 258 D.L.R. (4th) 10 the Ontario Court of Appeal held that the privative clause in Ontario's Labour Relations Act is stronger than Alberta's, and as a result, Ontario arbitrators' interpretations of collective agreements continue to be reviewable on the patently unreasonable standard. Case Name: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) |
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