FPSLREB Decisions

I. Complaint before the Board

1 This decision rules on a jurisdictional objection raised by the respondent on a complaint referred to the Public Service Labour Relations Board (“the Board”) under the transitional provisions of the Budget Implementation Act, 2009, S.C. 2009, c. 2  (BIA), for pay equity complaints filed with the Canadian Human Rights Commission (CHRC).

2 The complainants and their bargaining agent, the Association of Canadian Financial Officers (ACFO), filed a complaint on behalf of all members under sections 7, 10 and 11 of the Canadian Human Rights Act R.S.C. 1985, c. H-6 (CHRA), on March 8, 2009.

3 With the coming into force of section 396 of the BIA, the CHRC referred the complaint to the Board on or about April 24, 2009.

4 On June 10, 2009, the Board wrote to the parties indicating that it had determined that the complaint was not trivial, frivolous or vexatious or made in “bad faith” and referred the complaint to the parties in accordance with subsection 396(4) of the BIA.

5 On June 25, 2009, the Board received notice of a jurisdictional objection from the respondent. The respondent submitted that the Board does not have jurisdiction over the classification issues raised in the complaint as those issues do not fall within the meaning of “pay equity” or “equitable compensation.”

6 The parties were directed to provide written submissions on the jurisdictional objections. Those written submissions are on file with the Board. A summary of the submissions appears later in this decision.

7 The respondent submitted that this objection should be considered by the same Board member together with objections raised in other complaints referred to the Board. Since the complainants are different, I determined that it was not appropriate to consider the objections together.

8 After reviewing the respondent’s initial submissions, and in particular the submission that part of the complaint should remain with the CHRC, the complainant requested that the CHRC be advised of the proceedings and that it be given an opportunity to make submissions. I rejected this request as the Board must determine its own jurisdiction, and the submissions of another statutory body are not necessary for the Board to make this determination. That was communicated to the parties on August 4, 2009.

II. Jurisdictional issue

9 The jurisdictional issue raised by the respondent is whether classification can relate to the establishment and maintenance of differences in wages under the transitional provisions for pay equity complaints under section 396 of the BIA.

III. Background

10 The ACFO represents employees in the Financial Management Group (FI). It is the complainants’ position that the levels FI-01 and FI-02 are female dominated and that they have been discriminated against since August 1, 2004, in comparison to the following male-dominated occupational groups: Commerce (CO), Computer Systems (CS), Engineering (EN-ENG), and Meteorology (MT).

11 In addition to the allegations of pay inequity, the complainants allege that the FI classification standard and the entire classification system used in the federal public service are discriminatory. The complainants allege that the classification standard is discriminatory because:

• it does not evaluate all work responsibilities performed by FI-01s and FI-02s;
• it does not permit the evaluation of work in a fair and gender-neutral manner;
• it does not permit comparison of the work in the work of other male-dominated groups;
• it focuses on traditional management attributes; and
• it does not reflect the criteria of skill, effort, responsibility and working conditions as set out in the Equal Wages Guidelines, SOR/86-1082.

12 It is the complainants’ position that a fair and neutral standard would result in higher wages for positions classified at levels FI-01 and FI-02.

13 In relation to the classification allegations, the complainants seek an order for the development of a classification standard capable of evaluating all work performed at levels FI-0l and FI-02 in a fair and unbiased manner and capable of inter-occupational group comparisons.

IV. Legislation and transitional provisions

14 The following are the transitional provisions of the BIA that apply to complaints that had been filed with the CHRA:

395. Unless the context otherwise requires, words and expressions used in sections 396 and 397 have the same meaning as in the Public Sector Equitable Compensation Act.

Complaints before Canadian Human Rights Commission

396. (1) The following complaints with respect to employees that are before the Canadian Human Rights Commission on the day on which this Act receives royal assent, or that are filed with that Commission during the period beginning on that day and ending on the day on which section 399 comes into force, shall, despite section 44 of the Canadian Human Rights Act, without delay, be referred by the Commission to the Board:

(a) complaints based on section 7 or 10 of the Canadian Human Rights Act, if the complaint is in respect of the employer establishing or maintaining differences in wages between male and female employees; and

(b) complaints based on section 11 of the Canadian Human Rights Act.

Application of this section

(2) The complaints referred to in subsection (1) shall be dealt with by the Board as required by this section.

Powers of Board

(3) The Board has, in relation to a complaint referred to it, in addition to the powers conferred on it under the Public Service Labour Relations Act, the power to interpret and apply sections 7, 10 and 11 of the Canadian Human Rights Act, and the Equal Wages Guidelines, 1986, in respect of employees, even after the coming into force of section 399.

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Hearing

(6) If the employer, or the employer and the bargaining agent, as the case may be, do not resolve the matters relating to the complaint within 180 days after the complaint is referred to them, or any longer period or periods that may be authorized by the Board, the Board shall schedule a hearing.

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Restriction

(9) The Board has, in relation to complaints referred to in this section, the power to make any order that a member or panel may make under section 53 of the Canadian Human Rights Act, except that no monetary remedy may be granted by the Board in respect of the complaint other than a lump sum payment, and the payment may be only in respect of a period that ends on or before the day on which section 394 comes into force.

Application

398. Sections 30 and 33 of the Public Sector Equitable Compensation Act and sections 396 and 397 apply despite any provision of the Expenditure Restraint Act.

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15 The relevant transitional provisions related to the CHRA are as follows:

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399. The Canadian Human Rights Act is amended by adding the following after section 40.1:

Non-application of sections 7, 10 and 11

40.2 The Commission does not have jurisdiction to deal with complaints made against an employer within the meaning of the Public Sector Equitable Compensation Act alleging that

(a) the employer has engaged in a discriminatory practice referred to in section 7 or 10, if the complaint is in respect of the employer establishing or maintaining differences in wages between male and female employees; or

(b) the employer has engaged in a discriminatory practice referred to in section 11.

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16 The CHRA provisions at issue are the following:

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7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

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on a prohibited ground of discrimination.

10. It is a discriminatory practice for an employer, employee organization or employer organization

(a) to establish or pursue a policy or practice, or

(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,

that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.

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V. Summary of the arguments

17 The submissions of the parties are on file with the Board. The edited version of these submissions is set out below.

A. For the respondent

18 The respondent filed the following written submissions with the Board:

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14.     The modern approach to interpreting statutes is described in Sullivan on the Construction of Statutes 5^th ed. (Markham: LexisNexis, 2008) at p. 1 and has been accepted by the Supreme Court in Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 S.C.R. 27:

Today there is only one principle or approach; namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

15.     Extrinsic material maybe relied upon as evidence of external context or as direct evidence of legislative purpose, as long as it is relevant and reliable. The weight to be given to the material is established on a case by case basis: Sullivan on the Construction of Statutes, at p. 618.

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18.     The purpose of PSECA is to ensure that proactive measures are taken within existing wage setting mechanisms to provide employees in female predominant job groups with equitable compensation: Summary, Budget Implementation Act, 2009.

19.     In regard to non-unionized employees, PSECA will require their employers to periodically analyze the workplace to determine whether an equitable compensation matter exists. If it does, the employer must prepare an equitable compensation plan to resolve it. In the case of unionized public sector employees, the legislation will require the employer and the bargaining agent to resolve equitable compensation matter through the collective bargaining process.

20.     The PSECA sets out employers’ reporting obligations to employees regarding whether an equitable compensation assessment is required to be conducted and, if so, how it was conducted, and how any equitable compensation matters will be resolved. It also establishes a recourse process.

21.     PSECA authorizes the PSLRB to deal with disputes arising under the PSECA and to hear equitable compensation complaints filed by individual complainants: Budget Implementation Act, 2009, ss 2, 10, 11, 23 and 25-34.

22.     The PSECA regime provides that equitable compensation issues are primarily resolved through established wage setting mechanisms in the Core Public Administration (CPA) [Hélène Laurendeau, Assistant Secretary, Proceedings of the Standing Senate Committee on National Finance, March 11, 2009]:

This legislation is meant to move from a complaint-based system to a pro-active system. There are many ways to make a system pro-active. The one put forward in this legislation is to marry it with the decision making process related to setting wages whatever that process may be in a particular circumstance.

Let me explain what that means in real life. In the case of a unionized environment, when you periodically reflect on what wages should be, you factor in pay equity, right away, not down the road when you realize you have done it wrong. An obligation is put on the players. If it is an employer alone, the employer has the obligation to ensure that when wages are set, issues of equitable compensation are considered. If wages are set through collective bargaining, when you sit down at the table, both parties have the obligation to come prepared to address issues of equal pay for work of equal value.

23.     The jurisdictional objection raised by the TB is founded in subsection 396(1) of the BIA 2009. Subsection 396(1) directs that complaints based on section 11 of the CHRA and complaints based on sections 7 and 10 in respect of the employer establishing or maintaining differences in wages between male and female employees that are before the CHRC be referred to the PSLRB …

24.     Section 396 also outlines the manner in which the PSLRB will deal with the transferred complaints. The PSLRB, under subsection 396(3), has the power to interpret and apply sections 7, 10 and 11 of the CHRA and the Equal Wages Guidelines, 1986, in respect of employees, until the complaints are resolved. Subsection 396(9) gives the PSLRB all the remedial powers available under section 53 of the CHRA, except that any monetary remedy is limited to lump sum payments. Such payments cannot extend for a period that goes beyond the coming into force of the PSECA.

25.     The transitional provisions maintain continuity between the CHRA and PSECA regimes. The procedures set out in section 396 for the resolution of equitable compensation complaints are consistent with the way such complaints will be dealt with under PSECA when it comes into force. For example, the initial referral of complaints to the employer and the bargaining agent prior to the PSLRB ruling on a complaint engages the parties who will be responsible for proactively negotiating equitable wages under PSECA.

26.     The PSECA and section 399 of the BIA 2009 will come into force at a date to be determined by the Governor-in-Council. In the meantime section 396 directs that complaints of gender-based wage discrimination against the TB or a separate agency be filed with or transferred to the PSLRB, although the provisions of the CHRA will still be applied. This is in consideration of the PSLRB’s future role under the PSECA and its current expertise in dealing with wage setting issues in the CPA.

27.     Since the PSECA establishes a comprehensive equitable compensation scheme for the public sector, section 399 of the BIA 2009 will amend the CHRA so that its provisions on wage discrimination between female and male predominant groups will no longer apply to the public sector …

28.     Paragraphs 396(l)(a)and section 399 of the BIA 2009 use the same language to describe the type of complaints covered by the transitional provisions and, when it comes into force, the PSECA. Such complaints must be “in respect of the employer establishing or maintaining differences in wages between male and female employees.” Thus, the types of complaints that are transferred are those that will fall outside the jurisdiction of the CHRC once the PSECA comes into force. This denotes Parliament’s intention to make the regime under PSECA the exclusive avenue to address the issues captured by section 396 of the BIA 2009.

29.     The complainants allege that the classification system … is discriminatory. They further allege that the FI classification standard itself is discriminatory.

30.     The classification system is the infrastructure for the management and control of the classification of positions in the core public administration, including policies, guidelines, classification standards, occupational groups, work descriptions, job evaluations, active monitoring, and grievance mechanisms. It establishes internal relativity among jobs in the CPA, grouping jobs of similar nature and function into occupational groups and ranking them at levels within the occupational group according to the value established by using the appropriate classification standard. The choice of classification system is entirely within the authority of the employer. TB is the employer for the CPA, and each separate agency is the employer of its own employees. [See Treasury Board Policy on Classification System and Delegation of Authority and PSLRA, ss. 7 and 11.1].

31.     It is submitted that classification is not captured by the term “wages” in ss. 396(1) of the BIA 2009. “Wages” are not specifically defined in the PSECA or for the purposes of sections 7 or 10 of the CHRA, but they can be understood to refer to remuneration for work performed. Internal relativity as established by the classification system is only one of the several factors considered in the exercise of wage setting. Classification identifies occupational groups and levels; it does not ascribe wages to each group and level. [See D.A. Dukelow and B. Nuse, The Dictionary of Canadian Law, Carswell, 2nd.ed., 1995 at p. 1337].

32.     Wage-setting is an exercise separate from the classification exercise, which, for unionized employees such as the FI group, is achieved through collective bargaining between the employer and the bargaining agent. Wages for the FI group are negotiated at the bargaining table, taking into account internal and external relativities and any other consideration the parties deem appropriate.

33.     Classification is not a subject of collective bargaining. While occupational groups identified in the classification system may coincide with bargaining units because the grouped jobs share a community of interest, the law contemplates situations where this would not be the case.

34.     In contrast to wages, classification has remained outside of collective bargaining since its introduction in the federal public service in 1967. Section 7 of the PSLRA preserves the employer’s rights to determine the organization of the public service and to classify positions therein. Consequently, an arbitration board is prohibited, at paragraph 150(1)(e) of the PSLRA to issue an award that could “affect the organization of the public service or the assignment of duties to, and the classification of, positions and persons employed in the public service.” The BIA2009 does not prescribe consequential amendments to sections 7 or 150 of the PSLRA. The prohibition on an arbitration board to deal with classification is maintained in subsection 19(1) of the PSECA, which states:

19(1) The body seized of a request for arbitration under the Public Service Labour Relations Act that includes equitable compensation matters shall, subject to section 150 of that Act, make an arbitral award that sets out a plan to resolve those matters within a reasonable time.

35.     It is submitted that when looking at the role of classification in the broader context of the federal public service labour relations and employment scheme, the allegations regarding the FI standard and the classification system generally are not matters “in respect of the employer establishing or maintaining differences in wages between male and female employees” within the meaning of paragraph 396(1)(a) of the BIA 2009.

36.     Support for this position can be found in the statutory separation of classification and of the determination and regulation of pay in the Financial Administration Act:

11.1 (1) In the exercise of its human resources management responsibilities under paragraph 7(1)(e), the Treasury Board may (…)

(b) provide for the classification of positions and persons employed in the public service;

(c) determine and regulate the pay to which persons employed in the public service are entitled for services rendered, the hours of work and leave of those persons and any related matters

37.     There is also case law supporting a distinction between classification and pay. In Economists’, Sociologists’, and Statisticians’ Association v. Public Service Staff Relations Board, (1983), 1 F.C. 407, the Federal Court of Appeal stated that decreasing, increasing or leaving wages at their current levels does not, interfere with the employer’s power to classify.

38.     In fact, the Federal Court has accepted that classification and wages are not necessarily congruent: Professional Institute of thePublic Service of Canada v. Canada (Attorney General), 1988 FCJ No. 948. In the CPA, there are numerous allowances that are paid to various employees in addition to the rate of pay for their group and level.

39.     In Economists’, Sociologists’, and Statisticians’ Association v. Public Service Staff Relations Board, the Federal Court of Appeal held that the maintenance of wages and classification are severable issues:

I do not agree that a clause such as 16.08 which admittedly pertains to rates of pay for the employees affected by the downward reclassification encroaches upon the exclusive authority of the Treasury Board to classify or reclassify. A reduction in pay is only one of the possible consequences of a downward reclassification. As was hinted out by counsel for the applicant, there are many other possible consequences or results such as, for examples, the loss of perquisites attendant upon employer in the higher classification. But these consequences do not affect the right of Treasury Board to reclassify. (...) The kind of question which I think is contemplated under section 70(l) when “rates of pay” are referred to, is a question as to whether the present pay rate of employees should be increased, decreased or left at the present rate…

40.     It is acknowledged that there are cases in which “equality of pay” has been considered a classification matter. In Professional Institute of the Public Service of Canada v. Public Service Staff Relations Board, (1982), 1 F.C. 584, the applicant sought to include a proposal to resolve the complaints of classification and pay for certain biologists. These biologists claimed they were underpaid compared to medical doctors performing identical work. [See Professional Institute of the Public Service of Canada v. Canada (Attorney General) (1988), F.C.J. No. 948.]

41.     It is submitted that these cases are distinguishable from the present complaint. Although framed as an issue of equality of pay, the case of the biologists was not a matter of gender-based wage discrimination. Rather, the Federal Court recognized that rates of pay and classification are severable issues and that, in practice, they are not necessarily congruent. Moreover, the equality-of-pay issue between the biologists and medical doctors was ultimately resolved through the payment of an al1owance to the Biologists and not through reclassification: Professional Institute of the Public Service of Canada v. Canada (Attorney General) and Memorandum of Understanding dated October 11, 2002.

42.     Finally, it is submitted that guidance can be taken from the fact that pay equity awards or settlements made pursuant to section 11 of the CHRA have not involved modifications to the CPA classification structure. The key feature of pay equity remedies has been to close the wage gap between the complainant group and the comparator group through the payment of a lump sum for retroactive wage differentials and to adjust the complainants’ future wages.

43.     By comparison, if a classification standard is found to be gender biased, it is submitted that the employer would be ordered to develop a new standard. Once a new standard is developed, positions are assessed against it. A particular position might remain at the same level, or it could be reclassified upwards or downwards. A reclassification would not disturb the wages established and maintained in the collective agreement or by the employer for each level.

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19 In conclusion at paragraph 44 of its written submissions, the respondent states the following:

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The allegations of discrimination in relation to the FI standard and the classification system used in the CPA are not matters which fall within the jurisdiction of the PSLRB under the provision of the BIA 2009; and

Such allegations involving pure classification matters will not be dealt with under PSECA, but will remain within the jurisdiction of the CHRC and be determined under the provisions of the CHRA.

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20 The respondent requested the following orders from the Board at paragraph 45 of its written submissions:

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Sever the allegations made under sections 7 and 10 of the CHRA, as they relate to pure classification matters, from the subject complaint and return them to the CHRC; and

Order that the 180 day period in subsection 396(6) start to run on the date that the Board issues a ruling on the jurisdictional issue.

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B. For the complainant

21 The complainant’s full submissions are on file with the Board. The submissions are summarized as follows:

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7.       The Respondent’s assertion [on jurisdiction] is based on an extremely narrow reading of paragraph 396(1)(a) of the BIA, which if accepted would mean that the PSLRB would be required to decide pay equity complaints without the ability to consider the classification standards that give rise to discriminatory wages. Such a narrow reading of paragraph 396(1)(a) would effectively transfer back to the Commission and the Canadian Human Rights Tribunal (“Tribunal”) jurisdiction for section 7 and 10 aspects of the Complainants’ pay equity complaint, while reserving jurisdiction over the section 11 aspect of the complaint to the PSLRB.

8.       The Respondent’s argument on jurisdiction is contrary to the purpose of the transitional provisions of the BIA to transfer jurisdiction for all aspects of pay equity complaints in the public sector from the Commission to the PSLRB. The Respondent’s interpretation of paragraph 396(1)(a), if accepted, would create an adjudicative system that duplicates effort and wastes resources by requiring two separate proceedings for different aspects of the same complaint This is an unreasonable interpretation of paragraph 396(1)(a) of the BIA.

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12.     The Complainants filed a pay equity complaint with the Commission on March 6, 2009. The Complainants allege that the Respondent is discriminating against employees in the FI-01 and FI-02 occupational groups by maintaining a gender- biased classification standard, contrary to sections 7 and 10 of the CHRA and by establishing rates of pay that result in a wage gap that is discriminatory contrary to section 11 of the CHRA.

13.     Contrary to the Respondent’s submissions, the Complainants do not assert that FI-01’s and FI-02’s have been discriminated against since August 1, 2004. Rather, the Complainants have chosen August 1, 2004 as the effective date of their complaint as this is the date the FI qualification standard changed for the FI-01 and FI-02 levels. This change required a university degree in specific areas of study and/or an accounting designation for positions of F1-02 and higher.

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18.     The Complainants submit that the issues are as follows:

(a) Does paragraph 396(1)(a) of the BIA grant the PSLRB jurisdiction to deal with the section 7 and 10 aspects of the Complainants’ complaints?

(b) Does the meaning of the phrase “establishing or maintaining differences in wages between male and female employees” contained in paragraph 396(1)(a) of the BIA, preclude a review by the PSLRB in appropriate cases of the classification standards that are used to establish rates of pay?

The Complainants submit that the answers to these questions are: (a) yes; and (b) no.

19.     In order to interpret the meaning of a statute the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008).

20.     At issue in the Respondent’s jurisdictional objection is the scope of the jurisdiction granted to the PSLRB by subsection 396(1) of the BIA and whether the meaning of the phrase “establishing or maintaining differences in wages” in paragraph 369(1)(a) permits a review of the classification standards that were used to establish the rates of pay at issue in the Complainants’ complaint.

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22.     When Parliament enacted the Transitional Provisions of the BIA, it intended to transfer jurisdiction over pay equity complaints within the public sector from the Commission to the PSLRB. It did so by granting the PSLRB additional powers to interpret and apply sections 7, 10 and 11 of the CHRA and the Equal Wages Guidelines, 1986 (BIA, para. 396(1)(c)). All of which are necessary for the determination of pay equity complaints.

23.     A review of the preamble of the BIA, establishes that Parliament intended to expand the PSLRB’s jurisdiction to deal with all aspects of pay equity, referred to as equitable compensation in the BIA, complaints within the public sector (396(1)(c)):

Part 11 enacts the Public Service Equitable Compensation Act and makes consequential amendments to other Acts. The purpose of the Act is to ensure that proactive measures are taken to provide employees in female predominant job groups with equitable compensation.

Finally, since the Act puts in place a comprehensive equitable scheme for public sector employees, this Part amends the Canadian Human Rights Act so that the provisions of that Act dealing with gender-based wage discrimination no longer apply to public sector employers. It extends the mandate of the Public Service Labour Relations Board to allow it to hear equitable compensation complaints and to provide other services related to equitable compensation in the public sector.

24.     In order to understand the scope of the PSLRB’s jurisdiction to hear pay equity or equitable compensation complaints, the language of paragraph 396(1)(a) needs to be viewed in relation to the language in sections 7, 10 and 11 of the CHRA.

25.     Sections 7 and 10 of the CHRA are general provisions that prohibit discrimination in employment. Section 11 is a specific provision that prohibits employers from establishing or maintaining wage differences between male and female employees who perform work of equal value, which provision only applies to pay equity complaints: Harkin et al. v. Attorney General (Canada), [2009] CHRT 6.

26.     Sections 7 and 10 of the CHRA are broad, general anti-discrimination provisions that capture a wide spectrum of discriminatory practices, which include a prohibition against the use of gender-biased job evaluation plans and the classification standards that flow from these plans. Section 11 of the CHRA prohibits the establishment or maintenance of inequitable wages between male and female workers performing work of equal value. Unlike sections 7 and 10 of the CHRA, section 11 applies exclusively to pay equity complaints.

27.     Furthermore, when the Equal Wages Guidelines, 1986 are read in conjunction with Section 11 of the CHRA, the link between job evaluation, classification and wages is clear. Section 11 of the CHRA and sections 3 through 9 of the Equal Wages Guidelines, 1986 establish a relationship between assessing the value of work performed and the wages that are paid for that work. There is recognition that determining “wages for work of equal value” necessitates an assessment of the value of work performed.

28.     The assessment of the value of work performed by different occupational groups is an integral part of the job evaluation process, which forms the basis for the classification standards used and the wages assigned to different occupational groups. These are all essential components of pay equity and are an integral part of the Complainants pay equity complaint: Ontario Nurses Association v. Women’s College Hospital, Ontario Pay Equity Decisions: [1992] O.P.E.D. No. 20; Ontario Nurses Association v. Haldimand-Norfolk (Regional Municipality), Ontario Pay Equity Decisions: [1991] O.P.E.D. No. 52.

29.     Paragraph 396(1)(a) of the BIA defines the scope of the PSLRB’s expanded jurisdiction. It extends the PSLRB’s jurisdiction to complaints made pursuant to sections 7 and 10 of the CHRA in respect of “the employer establishing or maintaining differences in wages between male and female employees.”

30.     What Parliament has done in paragraph 396(1)(a) is to import the language from section 11 of the CHRA in order to make it clear that the PSLRB’s jurisdiction is limited to pay equity complaints brought under section 7 and 10 of the CHRA.

31.     There are many non pay equity complaints in the public sector that are filed pursuant to sections 7 and 10 of the CHRA. Jurisdiction over these complaints remains with the Commission and the Tribunal. The BIA expressly transfers jurisdiction over section 7 and 10 pay equity complaints to the PSLRB by incorporating into paragraph 396(1)(a), the express “pay equity” language contained in section 11 of the CHRA.

32.     The Respondent’s submission that the PSLRB lacks jurisdiction to examine the job evaluation programs and classification standards that form the basis for the Complainants’ section 7 and 10 complaints, is contrary to Parliament’s intention to transfer jurisdiction for all aspects of pay equity complaints in the public sector from the Commission to the PSLRB.

33.     To have any meaning, the powers that are transferred to PSLRB, pursuant to section 396 of the BIA, must necessarily be the same as those granted to the Commission and the Tribunal under the CHRA. That is the PSLRB must have the jurisdiction to analyze and resolve equal compensation complaints in all of their complexity, including when the issues arise, a consideration of classification systems and their relationship to the establishment or maintenance of a difference in wages.

34.     In its transfer of jurisdiction from the Commission to the PSLRB, Parliament also expanded the PSLRB’s mandate to include the provision of adjudication services, mediation services and compensation analysis and research services in accordance with the PSLRA and the PSECA. This transfer of responsibility was intended to create an efficient and effective means of addressing pay equity complaints.

35.     In order to give effect to Parliament’s intentions, paragraph 396(1)(a) must be interpreted in a manner that is consistent with an effective and efficient resolution of pay equity complaints by the PSLRB. The only reasonable interpretation of the scope of the PSLRB’s jurisdiction is one that includes the ability to consider all aspects of pay equity complaints; including the Complainants’ section 7 and 10 complaints alleging discrimination in the classification standard.

36.     This interpretation is consistent with the well established principle of statutory interpretation that the legislature does not intend that absurd consequences will flow from its enactments. As such, interpretations of legislation that lead to absurd consequences should be avoided in favour of those that avoid absurdity: Re Rizzo and Rizzo Shoes Ltdat 43.

37.     The interpretation of the PSLRB’s jurisdiction suggested by the Respondent is contrary to the purpose and intent of the BIA. If accepted, the Respondent’s interpretation would lead to the absurd result of having the Commission, Tribunal and the PSLRB each having jurisdiction over separate aspects of the same complaint. Parliament could not have intended that equitable compensation complaints in the public sector would be adjudicated in multiple forums in separate parts.

38.     Thus, it is submitted that paragraph 396(1)(a) grants the PSLRB jurisdiction to deal with the Complainants’ section 7, 10 and 11 complaints.

39.     The Complainants agree … that extrinsic evidence may be relied upon as evidence of external context or as direct evidence of legislative purpose, as long as it is relevant and reliable.

40.     The Respondent attempts in its submissions to create a clear distinction between classification and wages. The Complainants submit that this distinction is untenable. The extrinsic evidence establishes a clear link between classification systems and wages in the public sector. The Respondent’s polices on classification, the collective agreement between the Association of Canadian Financial Officers (“ACFO”) and the Treasury Board Secretariat (“TBS”) and the positions its representative took before standing committees support this link.

41.     The Respondent’s Policy on Classification and Delegation of Authority (the “Policy”) states clearly that the classification system ensures the determination of the relative value of work and provides a basis for employee compensation in the public service. The Policy also makes it clear that a characteristic of the classification system is that it provides a framework for establishing the compensation structure. (See Policy on Classification and Delegation of Authority, paragraphs 3.1, 4.2.3.)

42.     It is further submitted that the Policy contemplates that reclassification of positions often results in changes in wages and thus, Deputy Heads are required to consult the TBS in such cases: paragraph 6.5.3.

43.     The collective agreement between ACFO and the Respondent establishes a link between classification and wages such that classification is fundamentally linked to wages; The following articles are illustrative of this link:

(a) Article 54.02

(a) the pay specified in Appendix “A”, for the classification of the position to which the employee is appointed, if the classification coincides with that prescribed in the employee’s certificate of appointment;

or

(b) the pay specified in Appendix “A”, for the classification prescribed in the employee’s certificate of appointment, if that classification and the classification of the position to which the employee is appointed do not coincide.

(b) Article 54.05

If, during the term of this Agreement, a new classification standard for this group is established and implemented by the Employer, the Employer shall before applying rates of pay to new levels resulting from the application of the standard, negotiate with the Association the rates of pay and the rules affecting the pay of employees on their movement to the new levels.

44.     The Senate Standing Committee on Human Rights (“Senate Committee”), in its third report dated 11 June 2009, recognized the link between pay equity and classification and recommended that “the federal government ensure adequate funding and resources for pay equity assessments and job classification.”

45.     In the same report, the Senate Committee noted that it heard from witnesses from the Commission [CHRC] who indicated that pay equity is a complex area, acknowledged by courts and tribunals as subsuming many areas of expertise, including job evaluation, classification and statistics.

46.     At the proceedings before the Senate Committee, Professor Daphne Taras, a Professor of Labour Relations at the University of Calgary School of Business, testified about the undeniable link in assessing pay equity cases and stated that (Proceedings, May 25, 2009, page 22):

Pay equity is also unique. ... It involves assessments of groups, it involves understanding job classifications and it involves understanding historic pay patterns.

47.     Furthermore, the Respondent is on record as recognizing the relationship between classification and wages. In her testimony before the National Finance Committee in March 2009, Ms. Laurendeau indicated that wages could be contained in the public service by freezing classification. While classification cannot be frozen, the wages associated with occupational groups can. Thus the Respondent’s own view of the classification system is one that is directly and inextricably linked to wages. When asked whether re-classifications may be used to get around the maximum wage increase rules contained in the BIA Ms. Laurendeau stated (Proceedings, March 11, 2009, page 7) :

[T]here are various mechanisms by which we can contain the wage envelope of the federal government. Many mechanisms can be used, such as a freeze on classification, staffing or hiring.

48.     The Complainants submit, based on the foregoing, that the extrinsic evidence establishes a clear link between classification and wages and supports an interpretation of paragraph 396(1)(a) that grants the PSLRB jurisdiction to hear the section 7 and 10 aspects of the … complaints.

49.     The Respondent relies on the PSECA in its submissions to bolster its argument that the PSLRB lacks jurisdiction to deal with the Complainants’ section 7 and 10 complaints. PSECA is at Part 11 of the BIA.

50.     While the Complainants agree with the Respondent’s definition of the modern approach to the interpretation of statutes, this approach considers the context of legislative schemes that are in force and does not include a reliance upon statutes that are not as yet in force, as statutes that are not in force have no legal effect.

51.     PSECA is not as yet in force. Its regulations will not be completed for 18 months, and it is the subject of more than one constitutional challenge which may be successful. Given these caveats, and subject to a ruling by the courts on the constitutional validity of PSECA, an examination of the proposed legislative scheme may be useful for the limited purpose of determining the intention of parliament.

52.     PSECA sets up a scheme to address pay equity within the public sector. This scheme transfers jurisdiction from the Commission [CHRC] to the PSLRB for all aspects of pay equity complaints in the public sector. Although PSECA is not in force, on March 12, 2009, sections 395-396 of the BIA came into force. These transitional provisions require that pay equity complaints, made pursuant to sections 7, 10 and 11 of the CHRA, be transferred to the PSLRB, and outlines the manner in which these complaints are to be addressed.

53.     The Respondent’s jurisdictional objection arises out of the wording of paragraph 396(1)(a). The wording in paragraph 396(1)(a) is echoed in section 399, which is the consequential amendment to the CHRC to transfer jurisdiction to the PSLRB once PSECA comes into force.

54.     Thus, it is submitted that PSECA, the transitional provisions and the consequential amendments to the CHRA and PSLRB make it clear that parliament intended that all aspects of pay equity complaints, including those alleging discrimination in classification will be transferred from the Commission to the PSLRB. This transfer grants jurisdiction to the PSLRB to consider issues of classification standards and job evaluation processes in the context of pay equity complaints.

55.     The Respondent asserts that the PSLRB has no jurisdiction over the allegations in the Complainants’ section 7 and 10 that the classification system and standard for the Fl occupational group are discriminatory, as classification matters are not captured by the term “wages” in paragraph 396(1)(a) of the BIA. The Complainants submit that there is no basis in fact or law for this assertion.

56.     The Complainants submit that, in the context of their complaint, the issue of the classification standard and the wages that correspond to the classification standard are directly and fundamentally linked. To determine whether the Respondent has engaged in the discriminatory practice referred to in section 7 or 10 of the complaint, the PSLRB must examine the classification system that lead to the wage differential that forms the core of the Complainants’ section 11 complaint.

57.     At paragraph 34 of its submissions, the Respondent asserts that the PSLRB is barred from conducting such an analysis of the classification system at issue in the Complainants’ complaints by virtue of section 7 and paragraph 150(1)(e) of the Public Service Labour Relations Act (“PSLRA”).

58.     Section 7 preserves the employer’s right to determine the organization of the public service, including the right to classify positions. Paragraph 150(1)(e) restricts the PSLRB’s ability to make an arbitral award that affects the classification of positions and persons in the public service. The Respondent relies on the fact that there were no consequential amendments to these sections of the PSLRA as further support for its assertion.

59.     Neither section 7 nor paragraph 150(1)(e) of the PSLRA are bars to the ability of the PSLRB to consider classification issues in pay equity complaints. Section 7 is a management rights provision that was enacted to protect certain rights conferred on Treasury Board in the Financial Administration Act. Paragraph 150(1)(e) sets limits in accordance with section 7 on the scope of arbitral awards. In Public Service Alliance of Canada v. Canada (Treasury Board), [1987] F.C.J. No. 240, the court stated (at page 10):

Section 7 is not the embodiment of a divine right theory of executive power nor even a more limited proclamation of governmental sovereignty. It is simply as Marceau J. states a management rights clause.

Also see Public Service Alliance of Canada v. Canada (Treasury Board), [1987] 2 F.C. 471, at para. 5.

60.     These limits on the PSLRB’s powers apply only in the context of the adjudication of grievances and arbitrations and have no application to the separate and distinct regime to be established by PSECA for the adjudication of pay equity complaints. Given the clear distinction between these two regimes, there was no requirement that Parliament pass consequential amendments to section 7 and 150 of the PSLRA.

61.     However, and in the alternative, any concerns that sections 7 and 150 of the PSLRA might bar the PSLRB from considering classification issues in pay equity complaints, are answered by subsections 25(1), 28(1) and section 45 of PSECA.

25. (1) The provisions of the Public Service Labour Relations Act apply, with any modifications that the circumstances require in relation to any complaint or order made under this Act as though the complaint or order were a complaint or order, as the case may be, made under that Act.

28. (1) The Board shall deal with every complaint filed with it under this Act unless it appears to the Board that the complaint is trivial, frivolous or vexatious or was made in bad faith.

45. Nothing in this Act affects the application of the Public Service Labour Relations Act, but in the event of any inconsistency or conflict between this Act and that Act. the provisions of this Act prevail to the extent of the inconsistency or conflict. (emphasis added).

62.     These saving provisions ensure that the transfer of jurisdiction from the Commission [CHRC] to the PSLRB is over all aspects of pay equity complaints in the public sector, including those that allege discrimination in job evaluation and classification.

63.     The jurisprudence relied upon by the Respondent to support its assertion that classification and rates of pay are severable issues, are of no assistance in determining the scope of the PSLRB’s jurisdiction to hear pay equity complaints. The cases do not deal with the issues raised in pay equity complaints and address the PSLRB’s limited jurisdiction in the context of the adjudication of arbitration and conciliation.

64.     Contrary to … the Respondent’s submissions classification may be the subject of collective bargaining. The PSSRB, in a 1998 decision by then Chairperson Tarte (PSSRB File No. 190-2-267, at p. 8), relied on dicta from the Federal Court of Appeal, to order that classification proposals be referred to a conciliation board. Chairperson Tarte concluded that:

These two decisions of the Federal Court of Appeal have established that proposals that fall within section 7 of the PSSRA can nonetheless be made legitimate subjects of bargaining.

65.     Contrary to … [the respondent’s] submissions, it has always been the practice of the Commission and the Tribunal to consider job evaluation programs and classification standards in the determination of pay equity complaints brought pursuant to sections 7, 10 and 11 of the CHRA: Public Service Alliance of Canada v. Treasury Board, [1991] Canadian Human Rights Tribunal, and Harkin et al. v. Attorney General (Canada), [2009] CHRT 6

66.     The Commission’s Pay Equity and Job Evaluation Guide reinforces the link between job evaluation, classification and pay equity. The Guide makes it clear that an integral part of pay equity is to ensure that the job values are assessed in a gender neutral manner in order that classification standards and the wages that are assigned to them are not discriminatory.

67.     Based on the foregoing, it is submitted that in order to determine the complaints before it the PSLRB is required to examine the Complainants’ allegations that the classification system being used by the Respondents has established and maintained discriminatory wages for employees at the FI-01 and FI-02 level. This analysis is an integral part of the total complaint and clearly within the jurisdiction of the PSLRB and cannot be meaningfully severed as has been suggested by the Respondent.

68.     The Complainants submit that when Parliament transferred jurisdiction for pay equity complaints in the public sector from the Commission to the PSLRB, it intended that the PSLRB assume total responsibility for all aspect of these complaints. To achieve this Parliament created transition provisions in the BIA that, pending the coming into force of PSECA, transferred jurisdiction to the PSLRB to determine pay equity complaints made pursuant to sections 7, 10 and 11 of the CHRA.

69.     In order to give effect to Parliament’s intention to transfer responsibility for all aspects of pay equity complaints in the public sector to the PSLRB, paragraph 396(1)(a) of the BIA must be interpreted to include the jurisdiction to address job evaluation and classification matters when they arise in the context of section 7 and 10 complaints.

70.     To interpret the scope of the PSLRB’s jurisdiction in the manner proposed by the Respondent will result the Complainants’ complaint being severed and considered by separate bodies. The problem with this interpretation is that it is not only contrary to the intention of Parliament to transfer jurisdiction to the PSLRB for section 7 and 10 pay equity complaints, it leads to the absurd result of an artificial severing of the complaint, which will result in duplication of resources and an inefficient process that may result in inconsistent findings.

71.     Based on the foregoing the Complainants request that the Board dismiss the Respondent’s objection on jurisdiction.

…

[Emphasis in the original]

C. Reply of the respondent

22 The respondent’s reply submissions are summarized as follows:

…

1.       … the Complainants state that they “do not assert that FI-01’s and FI-02’s have been discriminated against since August 1, 2004. Rather the Complainants have chosen August 1, 2004 as the effective date of their complaint as this is the date the FI qualification standard changed for the FI-01 and FI-02 levels”. The Respondent understands the “effective date” identified on the complaint to mean the date from which the alleged discriminatory act commenced, and that the period from that date to the present will be addressed in these proceedings. If it is alleged that discrimination commenced at a different time, the Complainant must specify the period covered so that the Respondent will not be prejudiced in its ability to mount a full answer and defence.

2.       The Complainants submit … that “… an examination of the proposed legislative scheme may be useful for the limited purpose of determining the intention of Parliament”. The Respondent submits that the PSECA, which has been enacted but is not yet in force, including section 399, can be used not only to determine the “will and intention of Parliament” (Reference re Criminal Law Amendment Act, 1968-69 [1970] S.C.R. 777), but also to interpret the enacted provisions in the statute (Royal Bank of Canada v. Saskatchewan Power Corp. (1990), 73 D.L.R. (4^th) 257 (Sask. C.A.)), and to interpret other legislation (R. v. United Kingdom (Secretary of State for the Home Department)(1995), 180 N.R. 200 (H.L.) at para. 34-35, 113 and 121-24). See also Sullivan on the Construction of Statutes, 5th ed. at pages 642-643.

3.       The federal government is the single largest organization in Canada with annual expenditures that total over $180 billion, with operations throughout every region of the country and in over a hundred other countries through its participation in a range of international activities (including peace-keeping) and through its missions abroad. It employs in excess of 450,000 staff in occupations that include policemen and women, sailors, soldiers, aircrew, scientists, doctors, nurses, trades people, as well as many others who also interact daily with the Canadian public they serve.

4.       The federal government is made up of hundreds of different entities (departments, agencies, Special Operating Agencies, Separate Agencies, boards, commissions, crown corporations, the Canadian Forces and the RCMP). These diverse entities serve an array of different objectives and priorities – there is no single objective under which their activities could be unified. Furthermore, these entities have a range of significantly different governance regimes.

5.       Given the large size, diversity of work and complexity of accountability of this employer, it is vital that it have tools for organizing the work necessary to its business purposes and the human resources required to perform the work. The core public administration (CPA) uses a predominantly position-based HRM model in which work is designed to deliver on program requirements, and the incumbent has no perceptible effect on the requirements of the position. The position-based model permits the delegation of classification and staffing authorities and workload throughout the public service.

6.       In a position-based HRM system, a classification system is essential to achieving sound human resources management. It is a key component upon which many other components of the HRM system rely, including staffing, human resources planning, employee career development, labour relations, and learning. Christopher Rootham, in Labour and Employment Law in the Federal Public Service (Irwin Law Inc., 2007) at page 433, states:

Classification is important because the identity of an employee’s bargaining agent, the level of pay for an employee, and the employee’s promotional prospects depend upon the employee’s classification … bargaining units in the federal public service typically follow classification lines. Further, the various collective agreements in the federal public service contain different levels of pay for each classification level. Finally, some positions in the federal public service require experience at a particular classification level in order for a candidate to be eligible for that position. Therefore, classification can have a significant impact on an employee’s career.

7.       … the Complainants state that “The Respondent attempts in its submissions to create a clear distinction between classification and wages. The Complainants submit that this distinction is untenable. The extrinsic evidence establishes a clear link between classification systems and wages in the public sector”.

8.       The Respondent acknowledges that there is a relationship between an individual’s classification and level and the salary which that person earns. Indeed, the classification system forms the framework for organizing work and determining internal relativity of work within occupational groups and/or classification standards. This permits work required at hierarchical levels within that standard to be mapped to salary levels.

9.       On at least one occasion, however, the Public Service Labour Relations Board (PSLRB) has held that rates of pay could be established without any reference to the classification system: Professional Institute of the Public Service of Canada v. Treasury Board, [1985] C.P.S.S.R.B. No. 143 (P.S.L.R.B.)

10.     The Respondent submits that the mapping of salary level to classification and level is the end result of the wage setting process; the classification system does not establish or maintain wages. Rather, for employees represented by bargaining agents (approximately 88% of employees in the core public administration and the separate agencies combined in 2003), wages are “established” through collective bargaining, and are “maintained” through collective agreements. See Terms and Conditions of Employment Policy, Treasury Board Secretariat, section 20.

11.     Whether wages are established through collective bargaining or by the Treasury Board (TB), a number of factors are considered, including (Policy Framework for the Management of Compensation, Treasury Board Secretariat):

• External labour markets (including the private sector, other public sector employers and the volunteer sector, smaller geographic markets); the government seeks to maintain competitive but not higher wages than external markets while also considering whether there are:

  • shortages of skilled labour in a particular field;
    
    
  • unusual difficulties filling a position with qualified candidates; and
    
    
  • operational conditions requiring highly skilled or experienced employees who can fill a position immediately.
    
    
• The relative value to the employer of the work performed (internal comparability);
  
  
• Performance, based on individual or group contributions to business results; and
  
  
• Affordability within the government’s commitments to provide services to Canadians, its fiscal circumstances and the state of the Canadian economy.
  

12.     Government compensation decisions are always made taking into account relevant laws and general public policy. Consequently, the above-mentioned principles are to be balanced against the following considerations:

• economic policy objectives;
  
  
• social policy objectives; and
  
  
• public expectations and pressures.

13.     There is not a points-to-dollars correlation between the value of work in a particular classification and level as established by the standard and the wages earned by incumbent of that position which would evidence that the classification system “establishes” wages. It merely serves as the organizational framework to which wages are applied.

14.     …the Complainants’ [provide a] synopsis of the Treasury Board Policy on Classification System and Delegation of Authority. The Complainants point out that the policy “states clearly that the classification system ensures the determination of the relative value of work …” but do not provide the critical detail that this relativity only applies within occupational groups and standards:

4.2.2 recognizes the relative value of work and resulting internal relativity requirements by which each position within an occupational group can be appropriately placed relative to others; and

6.1 The level of each position shall be established by the evaluation of the work description for that position through the use of the appropriate classification standard as determined by the relevant occupational group definition for that standard.

15.     A classification standard establishes a hierarchy of work within a particular classification standard, and does not permit measurement or comparisons across occupational groups.

16.     The Complainants … describe a comment made by Ms. Laurendeau …in a presentation to the Standing Senate Committee on National Finance as follows: “Hélène Laurendeau indicated that wages could be contained in the public service by freezing classification. While classification cannot be frozen, the wages associated with occupational groups can”. The Respondent submits that the overall management of the wage envelope in the federal public service is a different question from how wages are established and maintained for employees in a particular classification and level.

17.     Furthermore, Ms. Laurendeau’s comments to the Committee made it clear that the new wage restraint legislation (i.e. the Expenditure Restraint Act) would not halt classification reform, but that new classifications with new negotiated wage lines might not be affordable during this time of fiscal restraint (Proceedings of the Standing Senate Committee on National Finance, March 11, 2009 at p. 3-70 to 3-7):

Senator Ringuette: I have a few questions in regards to this. I know that for quite a few years, there was a situation of trying to amalgamate certain job descriptions to certain scales. I know it is an ongoing process, unfortunately. However, at the end of this process, does this legislation mean that the new amalgamated job descriptions for the public service employees will be affected?

Ms. Laurendeau:Are you referring to classification reform? As a direct effect of this legislation, the broad exercise of classification reform is not affected, except for some of the exceptions provided for that "operationalize" classification reforms that were already on the way. I will be a little more specific.

If you look at the exceptions, we had to introduce new pay rates for a new group. Unfortunately, I cannot point you to the exact article but I will in a minute. That was the border guards at the border agencies. You will see that, for that specific group, you have an element of "operationalization" of a classification reform. The ones that were ready or needed to be provided for are provided for in this legislation. However, there will be more in the future which are not covered by this legislation. In other words, the legislation does not bring work on classification reform to a halt but it "operationalizes" the ones ready at this point in time.

Senator Ringuette: Does it restrain the wage increase that could occur by the process?

Ms. Laurendeau: For the period up to 2010-11 but it does not prevent any classification work from being done during the restraint period.

18.     In fact, Ms. Laurendeau makes the point that wages are negotiated:

Perhaps I should clarify. I do not want to get overly technical but one thing needs to be understood. Let us put aside performance pay for senior cadre for a minute. I will come back to it. The bulk of the people who are covered by this legislation are still governed by the progression in their rates of pay on an annual basis. The bulk of the unionized employees have increments every year. In other words, you enter the public service at a certain level, usually corresponding to the minimum, and, on a yearly basis, receive an incremental raise until you get to the maximum. For the bulk of the workforce, that is the way you progress through your pay rates. That is unaffected by the legislation.

The amount by which that pay grid can be increased by is affected. The pay grid could be negotiated at pretty much anything from zero to something higher. That increase in the pay grid is capped at the amounts I referred to but the progression within the pay grid remains.

19.     The concept of “equal pay for work of equal value” (i.e. pay equity) seeks to eliminate gender-based wage discrimination that has resulted from systemic undervaluation of work performed by women. A pay equity analysis under the CHRA compares male and female jobs that may be from different classifications and occupational groups and which may have quite different duties and responsibilities, using a job evaluation tool that measures the required skill, effort and responsibility of specific jobs, as well as the conditions under which the work is performed. The concept of pay equity is much broader in its application than ‘equal pay for equal work’, which compares work that is the same or very similar, as it calls for comparison across different occupations.

20.     …the Complainants’…state that “the assessment of the value of work performed by different occupational groups is an integral part of the job evaluation process, which forms the basis for the classification standards used and the wages assigned to different occupational groups. These are all essential components of pay equity…”. It is submitted that this leads to the overly simplistic conclusion that job evaluation as reflected in CPA classification standards is used in the pay equity analysis. In fact, while a complainant group may identify itself and comparator groups by reference to classification and level, it is not the valuation of work reflected in the classification standards which forms the basis for comparisons between standards.

21. Subsection 11(2) of the CHRA requires that employers measure “value” by comparing different types of work:

In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.

22.     The four criteria must be used in valuing the work of particular jobs in a pay equity assessment. However, most CPA classification standards pre-date the CHRA, which came into force in 1978, and consequently were not created with the intention of measuring all four criteria listed in the CHRA.

23.     The Equal Wage Guidelines further specify, under “Method of Assessment of Value”, that:

9. Where an employer relies on a system in assessing the value of work performed by employees employed in the same establishment, that system shall be used in the investigation of any complaint alleging a difference in wages, if that system…

(a) operates without any sexual bias;

(b) is capable of measuring the relative value of work of all jobs in the establishment; and

(c) assesses the skill, effort and responsibility and the working conditions determined in accordance with sections 3 to 8.

24.     CPA classification standards do not necessarily measure all four criteria, and are not required to do so under the CHRA unless they are being used as job evaluation tools for the purposes of conducting a pay equity analysis under section 11 of the CHRA: Wiseman v. Canada (Attorney General), [2009] C.H.R.D. No. 19 (C.H.R.T.).

25.     Because of the diverse nature of work found across the CPA, classification standards have varying numbers of levels. Different classification standards, reflecting the often very different nature of the work they are designed to measure, place differing degrees of emphasis on the varying criteria evaluated by them. Thus it is not possible to directly compare positions evaluated using one classification standard with those evaluated using another. For example, in the present case, the relevant classification standards would not permit measurement of the relative value of the work done in the FI standard in a form which would permit comparisons with work done in the Complainants’ chosen comparator groups; CO, CS, EN-ENG or MT. In fact, CPA classification standards are not used to evaluate jobs for the purpose of comparing different classifications or occupational groups in a pay equity analysis.

26.     So, while it is important to recognize that although good classification practices can reduce the potential of gender bias creeping into classification decisions, classification itself is not a panacea for addressing pay equity – it is but one component of a multi-disciplinary HRM strategy that is primarily driven by labour relations and compensation considerations.

27. Furthermore, contrary to the submissions of the Complainants, it is quite appropriate to consider allegations of discrimination within a classification standard separately from allegations of pay inequity between male predominant jobs and female predominant jobs with work of equal value. The fact that job evaluation is a component of each exercise does not defeat this separation.

28.     For example, in Public Service Alliance of Canada v. Treasury Board [2005] F.C.J. No. 1576, the Federal Court summarized proceedings in relation to a complaint filed with the Canadian Human Rights Commission (CHRC) by PSAC on behalf of its members in the CR classification as follows:

[2] On December 19, 1984, the Applicant filed a complaint with the Commission by which it alleged that members of the predominantly female CR occupational group employed by the Respondent Treasury Board were the victims of discrimination on the basis of gender. In fact, the complaint consisted of two allegations: 1) it alleged that CR members were subjected to a discriminatory classification standard which was utilized to assess the value of their work and pay, contrary to sections 7, 10 and 11 of the CHRA; and 2) it also claimed that "by segregating the Clerical and Regulatory, and Program Management groups, and by applying different standards to measure the value of jobs of employees who are members of these groups, the Treasury Board is discriminating against members of the former group in contravention of Sections 7, 10, and 11 of the Canadian Human Rights Act".

[3] The allegation of wage discrimination contrary to section 11 of the CHRA was referred to a panel of the Human Rights Tribunal in October 1990. On July 29, 1998, the Tribunal found that there had been a violation of s. 11 and ordered wage compensation in the form of pay equity adjustments back to March 8, 1985. It also ordered that pay equity adjustments of wages for times after the date of the decision be folded in and become an integral part of wages (P.S.A.C. v. Canada (Treasury Board) (No. 3), (1998), 32 C.H.R.R. D/349). This decision from the Tribunal was subsequently upheld by this Court on October 19, 1999; Canada (A.G.) v. P.S.A.C., [2000] 1 F.C. 146(QL)).

[4] Throughout the period that the section 11 portion of the complaint was before the Human Rights Tribunal for adjudication, the Commission held its investigation into the sections 7 and 10 aspects of the complaint in abeyance. The section 7 and section 10 aspects of the complaint related to the structure and application of the CR classification standard as a job evaluation tool. The decision was taken to permit the parties to continue working together to develop a new classification system known as the Universal Classification System ("UCS"). From 1997 until 2000, the Commission monitored the progress of the UCS project and provided assistance and guidance on matter related to pay equity, such as the gender-neutrality of the standard, the evaluation of jobs, and the weighing of factors.

29.     The CHRC and the Federal Court clearly accepted the separation of the issues of assessing whether a classification standard is discriminatory on the basis of gender and pay equity assessment comparing a female predominant complainant group and a male predominant comparator group under section 11 of the CHRA.

30.     The Complainants rely on CHRT Rulings in Public Service Alliance of Canada v. Canada (Treasury Board) (HS/GS) and Richard Harkin et al. v. Canada (Attorney General) … to support the statement that “…it has always been the practice of the Commission and the Tribunal to consider job evaluation programs and classification standards in the determination of pay equity complaints…”

31.     The CHRT in the HS/GS case did, in fact, note that there were two distinct aspects to the complaint: discrimination in wages and discrimination in classification. The parties entered into a settlement dealing with both aspects. The CHRT was not asked to examine the jurisdictional question of whether the issues should be severed; nor would it be required to as it had jurisdiction over all questions of discrimination under sections 7, 10 and 11 of the CHRA without the restriction posed in the present situation by virtue of section 396(1) of the BIA, 2009.

32.     Furthermore, the facts at issue in the HS/GS complaint were notably unique. The work performed by employees whose work was evaluated using the Hospital Services (HS) classification standard was substantially similar to that of employees whose work was being evaluated using the General Services (GS) classification standard. As such, the work of employees in the female predominant HS group could be evaluated using the GS classification standard. This is not the case for the FI-01’s and FI-02’s and their proposed comparators.

33.     It is further submitted that the preliminary ruling in the Harkin matter provides absolutely no guidance on the jurisdictional issue presently before the Board. That ruling related to the Respondent’s motion to strike the Complainants’ section 10 allegations and Complainants’ motion to add section 7 allegations. The Tribunal member was asked to deal with very specific questions: whether to dismiss a human rights complaint without a hearing on the basis that the Statement of Particulars failed to disclose a prima facie case of discrimination under section 10 and whether adding section 7 arguments to the complaint would prejudice the Respondent. Sections 7 and 10 allegations under the CHRA were the only issues before the CHRT in Harkin; the section 11 pay equity allegations contained in the initial complaint had been withdrawn by the time this ruling was issued.

34.     The present complaint was filed under the transitional provisions of the BIA, 2009 (i.e. sections 395 – 406). Under those provisions the PSLRB is granted authority to interpret and apply sections 7, 10 and 11 of the CHRA and the Equal Wages Guidelines for those complaints referred to it under subsection 396(1), i.e. complaints based on section 7 or 10 of the Canadian Human Rights Act (CHRA), if the complaint is in respect of the employer establishing or maintaining differences in wages between male and female employees; and complaints based on section 11 of the CHRA.

35.     Simply stated, while the CHRC complaints are being referred to the Board to be addressed, the obligations in the CHRA and Equal Wage Guidelines continue to apply for those complaints. The Board will interpret and apply these obligations in dealing with those complaints. This is done to ensure that each of the public sector gender-based wage discrimination complaints filed with the CHRC but transferred to the PSLRB continues to be governed by the same legislation until the final disposition of such complaints.

36.     The transitional provisions also grant the PSLRB the power to make any order available to the Canadian Human Rights Tribunal (CHRT) under section 53 of the CHRA (with certain monetary restrictions) for those complaints referred to it under subsection 396(1).

37.     Upon the coming into force of the PSECA, section 399 of the BIA will make the following consequential amendment to the CHRA:

399. The Canadian Human Rights Act is amended by adding the following after section 40.1:

40.2 The Commission does not have jurisdiction to deal with complaints made against an employer within the meaning of the Public Sector Equitable Compensation Act alleging that

(a) the employer has engaged in a discriminatory practice referred to in section 7 or 10, if the complaint is in respect of the employer establishing or maintaining differences in wages between male and female employees; or

(b) the employer has engaged in a discriminatory practice referred to in section 11.

38.     One must not lose sight of the fact that, when PSECA comes into force, all new public sector equitable compensation matters filed pursuant to it will be dealt with by the PSLRB exclusively under the rules and procedures of the PSECA.

39.     If classification is found to be in respect of establishing and maintaining wages between female and male employees, it will follow that the CHRC and the CHRT will not have jurisdiction over such matters once section 399 of the BIA comes into force. Nor will the PSLRB interpret or apply CHRA provisions to equitable compensation complaints.

40. The rights of employees to file complaints under PSECA are found in sections 10 and 11 (for non-unionized employees) and sections 23 and 24 (for unionized employees). A non-unionized employee may file a complaint with the PSLRB if s/he is of the opinion that the employer failed to:

make a determination on the female predominance of a job group (section 5);

post a notice stating that no female predominant job group was determined to exist (section 6(1));

respond to notice of dissatisfaction from an employee on the section 6(1) notice (section 6(3));

carry out an equitable compensation assessment and determine whether equitable compensation matters exist (section 7(1)(a));

provide a report to employees in a job group affected by an equitable compensation matter describing how the assessment was done and whether any consultations were conducted (section 7(1)(b));

develop a plan to resolve equitable compensation matters (section 7(1)(a));

prepare and provide a report to the non-unionized employees affected where an equitable compensation matter is determined to exist and a plan has been prepared (section 7(1)(b));

respond to an employee request on equitable compensation based on the employer's actions under section 7(1) (section 7(3));

implement a plan developed through the application of sections 7 or 9 or as a result of an order made under the Act (section 8(1)); and/or

consider matters raised by an employee under section 9(2) and respond to an employee request under section 9(2) (section 9(3)).

41.     In addition to the above list, a non-unionized employee may file a complaint with the PSLRB if s/he is dissatisfied with any matter in the employer’s response under section 9(2) and she believes that she is a member of a female predominant job class and that an equitable compensation assessment of that job class would reveal an equitable compensation matter.

42.     A unionized employee may file a complaint with the PSLRB if:

the employer failed to present a statement to the relevant bargaining agent setting out the number of employees by gender that form each job group, the whole or part of which is represented by that bargaining agent (section 23); and/or

the employee believes that she is a member of a female predominant job class, that an equitable compensation assessment of that job class would reveal an equitable compensation matter, and that she will not receive equitable compensation during the term of the existing collective agreement or within a reasonable time after its expiry (section 24(1)).

43.     As can be seen, there is no provision in the PSECA regime to address classification complaints. Furthermore, arbitration boards will continue to be prevented from considering classification matters, as they are presently restrained under the PSLRA.

44.     … the Complainants … rely upon the PSLRB decision In the Matter of the Public Service Staff Relations Act, 1998 and embedded Federal Court authorities. That case deals with referral of classification or other matters falling under section 7 of the Public Service Staff Relations Act to conciliation boards which cannot make binding recommendations. The quotation relied upon by the complainants does not reveal the context of concern to the Court:

Section 7 is not the embodiment of a divine right theory of executive power nor even a more limited proclamation of governmental sovereignty. It is simply, as Marceau J. states, a management rights clause. I find it impossible to read section 7 as precluding the respondent's right voluntarily to agree to include such a cap clause on teaching hours in a collective agreement, as it has freely chosen to do on all previous occasions. Any other interpretation would deprive not only the applicant, but also management, of its rights… The simple issue is whether, having since the inception of collective bargaining in the Public Service voluntarily agreed to a cap clause, presumably as part of the overall bargain, the government can get free of the clause merely by the running out of the collective agreement when all clauses of that agreement "that may be bargained for" are statutorily stated to be continued until the new collective bargain is struck. I can find no justification in either statute or policy to permit the employer so easily to escape its voluntarily assumed obligation.

45.     Furthermore, the jurisprudence cited by the Complainants does not change the state of the law in that matters falling within section 7 of the PSLRA cannot be referred to either binding arbitration or binding conciliation unless the employer has voluntarily agreed to such referral.

46.     The Complainants further argue … that limitations on the powers of the PSLRB imposed by section 7 of the PSLRA “apply only in the context of the adjudication of grievances and arbitrations and have no application to the separate and distinct regime to be established by PSECA”. PSECA provides that adjudication and conciliation/strike procedures provided for under the PSLRA will apply to equitable compensation matters:

17. If arbitration has been chosen under subsection 103(1) of the Public Service Labour Relations Act as the process for the resolution of disputes, questions concerning the provision of equitable compensation to employees may be the subject of a request for arbitration under subsection 136(1) of that Act.

20. If conciliation has been chosen under subsection 103(1) of the Public Service Labour Relations Act as the process for the resolution of disputes, questions concerning the provision of equitable compensation to employees may be the subject of a request for conciliation under subsection 161(1) of that Act.

47.     The cumulative impact of the foregoing is that, if classification is found to be in respect of establishing and maintaining wages between female and male employees, employees would have no forum in which to raise a complaint of discrimination in classification once the PSECA comes into force. This could not have been the intention of Parliament.

…

[Emphasis in the original]

VI. Reasons

23 The respondent’s position is that the Board does not have jurisdiction over those aspects of the complaint filed by the complainants and the ACFO that relate to classification and the classification standard for the FI group. The respondent’s position is that those aspects of the complaint that relate to classification should remain with the CHRC. I do not believe that Parliament intended a bifurcation of complaints during this transitional period before the Public Service Equitable Compensation Act, S.C. 2009, c. 2, s. 394 (not in force)(PSECA), is proclaimed. For the reasons set out below, I have dismissed the respondent’s objection.

24 I am in general agreement with the statutory interpretation principles set out by the parties in their submissions. However, I do not see the need for extrinsic evidence or statements to assist in the interpretation of the statutory provisions at issue here. Extrinsic evidence is necessary only where the statutory provisions are ambiguous. In any event, the evidence of witnesses before a parliamentary committee, including a representative of the Treasury Board, cannot assist in determining the intent of Parliament in passing this legislation.

25 I also agree that legislation that has not been proclaimed can be used to assist in statutory interpretation. However, a plain reading of the transitional provisions shows that the regime in the PSECA is not relevant for complaints filed before the coming into force of that Act.

26 The transitional provisions contained in the BIA provide a comprehensive regime for addressing complaints relating to pay equity that had been filed with the CHRC (and not yet referred to a tribunal) as well as any complaints filed before the coming into force of the PSECA (subsection 396(1)). These complaints are to be “dealt with” by the Board, “as required by this section” (subsection 396(2)). The Board has been given additional powers under these transitional provisions. In addition to the powers that it already has under the Public Service Labour Relations Act, S.C. 2003, c. 22 (PSLRA), the Board has been given the power “to interpret and apply” specified provisions of the CHRA (sections 7, 10 and 11) and the Equal Wages Guidelines, 1986. The Board has these powers “even after” the coming into force of the PSECA. This reinforces the view that the regime for processing complaints during the transitional period is different from the regime for processing complaints that may arise after proclamation. The Board has also been given the power to make orders pursuant to section 53 of the CHRA, with some restrictions on the scope of a monetary remedy and on the duration of any payment. The orders available under section 53 of the CHRA include an order directing an end to a discriminatory practice.

27 The respondent has submitted that, because there have been no amendments to sections 7 and 150 of the PSLRA, the Board is without jurisdiction to deal with classification matters. However, the transitional provisions give the Board the additional power to interpret and apply the CHRA and the Equal Wage Guidelines, 1986. The provisions state that this power is “in addition” to the powers that the Board already has. Therefore, the Board is not limited by the powers it has solely under the PSLRA.

28 The respondent argues that because arbitration boards, in the collective bargaining context, do not have jurisdiction over classification matters, the PSLRB is also without jurisdiction on classification matters in the present complaint. The regime for addressing pay equity complaints during the transitional period is separate and distinct from the regime under the PSLRA for the negotiation and determination of collective agreements. The prohibition on dealing with matters relating to classification (section 7 of the PSLRA) is expressly limited to that Act. The prohibition does not apply to other legislation that the PSLRB is required to administer – in this case, the CHRA and the BIA. 

29 The respondent has admitted that classification may have some relevance to the determination of wages. In its initial submission, the respondent stated the following:

…

31.     It is submitted that classification is not captured by the term “wages” in ss. 396(1) of the BIA 2009. “Wages” are not specifically defined in the PSECA or for the purposes of sections 7 or 10 of the CHRA, but they can be understood to refer to remuneration for work performed. Internal relativity as established by the classification system is only one of the several factors considered in the exercise of wage setting. Classification identifies occupational groups and levels; it does not ascribe wages to each group and level. …

…

[Emphasis added]

30 In its reply submissions, the respondent also stated the following:

…

8.       The Respondent acknowledges that there is a relationship between an individual’s classification and level and the salary which that person earns. Indeed, the classification system forms the framework for organizing work and determining internal relativity of work within occupational groups and/or classification standards. This permits work required at hierarchical levels within that standard to be mapped to salary levels.

…

10.     The Respondent submits that the mapping of salary level to classification and level is the end result of the wage setting process; the classification system does not establish or maintain wages. Rather, for employees represented by bargaining agents … wages are “established” through collective bargaining, and are “maintained” through collective agreements…

…

31 Without the evidence to support the assertion that “… the classification system does not establish or maintain wages,” it is impossible to assess its veracity. The submission that bargaining over wages occurs without any reference to the classification standard or levels will require evidentiary support that can only be obtained through a full hearing of the complaint.

32 In the hearing of the complaint, the Board will have the power to interpret and apply the Equal Wage Guidelines, 1986. Those guidelines contain the following provision relating to job evaluation tools:

…

9. Where an employer relies on a system in assessing the value of work performed by employees employed in the same establishment, that system shall be used in the investigation of any complaint alleging a difference in wages, if that system

(a) operates without any sexual bias;

(b) is capable of measuring the relative value of work of all jobs in the establishment; and

(c) assesses the skill, effort and responsibility and the working conditions determined in accordance with sections 3 to 8.

…

33 The complainants assert that the classification standard does not meet the requirements of that section. The respondent, in turn, asserts that the classification standards do not necessarily measure all four criteria and are not required to do so unless they are being used as job evaluation tools for the purpose of conducting a pay equity analysis (page 29 of their submissions). Evidence at the full hearing of the complaint will be required to determine if either assertion is valid.

34 The respondent also referred to the Wiseman decision of the Canadian Human Rights Tribunal (CHRT) to support its submission that the classification standard does not need to meet the criteria set out in the Equal Wage Guidelines, 1986. In that case, the complainant alleged that the classification standard for correctional officers was not consistent with the CHRA, that it did not value the work of a specified position in accordance with the valuation factors of skill, effort, responsibility and working conditions, and that it permitted no comparison with male-dominated occupations in the CX classification. First, it is notable that the complainant withdrew from the hearing before the respondent tendered any evidence. Second, the complaint was dismissed only after hearing evidence on the classification standard from the respondent. I agree with the approach taken by the CHRT in that case, which was to hear evidence on the allegations before coming to any conclusions on the classification standard.

35 The respondent also referred me to the decision of the Federal Court in Public Service Alliance of Canada v. Treasury Board, 2005 FC 1297. That decision was a judicial review of the CHRC’s determination not to refer a complaint that a classification standard was discriminatory to the CHRT. The decision focused on procedural fairness and on the CHRC’s obligation to provide reasons for its determination. Consequently, it is of little relevance here. The court did not dispute that the tribunal had jurisdiction to assess the classification standard. The decision also set out the procedural history of the section 7 and 10 aspects of the complaint (“the structure and application of the CR classification standard as a job evaluation tool”) and noted that these aspects had been held in abeyance.  

36 In Public Service Alliance of Canada v. Treasury Board, [1991] C.H.R.D. No. 4 (QL), the CHRT panel made a direct link between the classification standards at issue and wage discrimination (at pages 7-8):

…

… The HS and GS standards were both numerical rating systems that were virtually identical in basic structure. The division of the numerical scale into levels differed, however, so that employees rated identically under both standards were commonly classified at different levels.

Since wage scales were level dependent, this difference contributed in turn to the discrimination in wages that existed. Since the HS and GS groups were predominantly female and male respectively, we are satisfied that this difference in the classification standards was a practice which adversely differentiated individuals on the ground of gender contrary to s. 7 of the Act…

…

37 In short, evidence will be required to determine if the classification standard has any relevance to this complaint. Therefore, this is a matter that must be determined at a full hearing.

38 The overall intent of the transitional provisions is that the PSLRB should stand in the CHRT’s shoes to dispose of complaints in this interim period before the PSECA comes into force. The BIA was intended to address all outstanding pay equity complaints as well as those filed during the period before the coming into force of the PSECA. The reference in the BIA to sections 7 and 10 of the CHRA “in respect of the employer establishing or maintaining differences in wages …” (para. 396(1)(a)) was designed to distinguish pay equity complaints from the other types of complaints that can be filed pursuant to these sections of the CHRA. The respondent’s interpretation of the Board’s jurisdiction would significantly interfere with this intention, as it would leave aspects of the complaint that are clearly within the CHRT’s jurisdiction with the CHRC and with a possibility of eventual referral to the CHRT. If Parliament had intended such a bifurcated process for pay equity complaints, it would have set it out explicitly in the legislation.

39 It is common place to note that legislation is not to be construed as having retroactive application, unless such a construction is provided for in the statute either expressly or by necessary implication: Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), [1975] S.C.J. No. 116. The use of the same statutory language as that contained in the CHRA therefore supports the view that during the transitional period, complainants have the same rights as they would have had under the CHRA.

40 The respondent has also requested that the 180-day time requirement before scheduling a hearing (subsection 396(6) of the BIA) start afresh from the date of this decision. The respondent has given no reasons for its request. The purpose of the 180-day period is for the parties to resolve matters relating to the complaint. The 180-day time period has now expired. There were no submissions on whether the parties have been making efforts to resolve this complaint. If the parties require more time to discuss a resolution of the complaint, either or both parties can make a request to the Board for an extension at that time. Such a request will be considered by the Board based on the submissions of the parties.

41 In paragraph 1 of its reply submissions, the respondent raises a valid concern about the effective date of the complaint. I direct the complainants to provide further particulars to the Treasury Board on this issue within 30 days of the date of this decision.

42 For all of the above reasons, the Board makes the following order:

VII. Order

43 The objection to the Board’s jurisdiction is dismissed.

44 The complainants are to provide further particulars to the respondent on the effective date of the complaint within 30 days of the date of this decision.

February 4, 2010.

Ian R. Mackenzie,
Vice-Chairperson