FPSLREB Decisions

Complaints before the Board

1 Diane Melançon, Michael Brandimore and Louise Ippersiel (“the complainants”) are compensation consultants in the Administrative Services (AS) occupational group. They filed identical complaints with the Canadian Human Rights Commission (CHRC), under sections 7, 10 and 11 of the Canadian Human Rights Act (CHRA) on November 25, 2004. An amended complaint was filed on March 5, 2007. In accordance with the coming into force of section 396 of the Budget Implementation Act, 2009 (BIA),the CHRC referred the complaints to the Public Service Labour Relations Board (PSLRB).

2 The complaints were filed on behalf of the complainants and on behalf of all compensation consultants employed both in the core public administration and in separate agencies. In addition to each complainant filing a complaint against the Treasury Board, each complainant also filed individual complaints against their departments. The following three departments were named as respondents: Department of Industry, Department of Health and the Canadian International Development Agency.

3 On June 10, 2009, the PSLRB wrote to the parties indicating that it had determined that the complaints were not trivial, frivolous, vexatious or made in “bad faith” and that they were being returned to the parties in accordance with the transitional provisions of the BIA.The transitional provisions specify that the complaints are to be referred to the employer and the bargaining agent. The complainants’ counsel was also given an opportunity to make submissions.

4 On June 22, 2009, the Treasury Board raised a jurisdictional objection on the basis that the PSLRB does not have jurisdiction over classification issues that do not fall within the meaning of “pay equity” or “equitable compensation.” On July 16, 2009, the Treasury Board raised a further objection about being named as the respondent for unnamed complainants employed by separate agencies. In addition, the Treasury Board objected to the referral of those parts of the complaints alleging a breach of section 7 of the CHRA, as the CHRC had dismissed that aspect of the complaints. In their written submissions, the complainants conceded that the section 7 allegations were not referred to the PSLRB.

5 Compensation consultants are part of a bargaining unit represented by the Public Service Alliance of Canada (PSAC). The complainants are represented by their own counsel, and they did not seek representation from their bargaining agent. The transitional provisions in the BIA refer to the employer and “the bargaining agent of the employees who filed the complaint”: subsection 396(4). The provisions do not refer to complainants who are not represented by their bargaining agent, which is the case here. Accordingly, the PSLRB asked for submissions from the complainants as well as from their bargaining agent.

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

Background

7 In their complaints, the complainants make a number of allegations, of which the following are relevant to the objections of the Treasury Board:

• Compensation consultants are employed by the Government of Canada and hold positions in several departments, agencies and separate employers within the government.
• The work of compensation consultants is evaluated according to a job evaluation system (the AS classification standard) that dates from August 1965.
• The classification system fails to assess the work of compensation consultants in relation to the four factors in the Equal Wages Guidelines, 1986 (skill, responsibility, effort and working conditions).
• There is inherent gender bias in the classification system.
• The classification system is discriminatory because it is not capable of measuring the relative value of work across occupational groups within the Treasury Board’s establishments.
• By pursuing a course of job classification that undervalues their work, the Treasury Board (“the employer”), adversely differentiates between compensation consultants and all employees who are properly classified according to their job value, on the ground of sex, in violation of section 7 of the CHRA.
• By pursuing a course of job classification which limits their job advancement opportunities and by classifying them in a “clerical” group, the employer deprives the complainants of employment opportunities on the ground of sex, in violation of section 10 of the CHRA.
• The Treasury Board has established and maintained differences in wages between the female-predominant compensation consultants and male-predominant groups performing work of equal value, in violation of section 11 of the CHRA. The groups ES-3, SI-4, HR-3, PC-2 and CS-2 are identified as potential male-predominant comparator groups.

8 The following are the relevant parts of the remedy requested by the complainants:

• The adoption of a non-discriminatory classification standard that measures the value of jobs on the basis of all four factors listed in section 11 of the CHRA and the Equal Wages Guidelines, 1986, for all federal public service jobs.
• The conversion of all jobs to this standard, and full compensation for the compensation consultant positions retroactive to April 1, 1997.

Issues

9 Given the complainants’ response to the section 7 allegations, only the following two jurisdictional issues need to be addressed:

• Is the Treasury Board the proper respondent for a complaint filed on behalf of individuals employed by a separate agency?
• Does the PSLRB have jurisdiction under the transitional provisions of the BIA to address classification matters?

Submissions of the Treasury Board

10 The written submissions of the Treasury Board are on file with the Board. An edited version appears in the following paragraphs.

11 The Treasury Board made the following submissions on the issue of whether it is the proper respondent for a complaint filed on behalf of individuals employed by separate agencies:

…

11.     The amended complaints are directed against the Government of Canada as the employer. The complainants allege that Compensation Consultants are employed in departments, agencies and separate employers within the Government.

12.     On April 10, 2006, the Treasury Board advised the CHRC that it represents the employer only for the core public administration. It made clear it was not the employer of individuals employed in separate agencies.

13.     As of May 2, 2007, the named complainants claimed to represent approximately 700 Compensation Consultants. The Treasury Board does not know the identity or the place of employment of these 700 individuals.

14.     On April 17, 2008, the CHRC decided to deal with the complaints filed under sections 10 and 11 of the CHRA on behalf of the named complainants and all Compensation Consultants who sign a written authorization. The CHRC never issued a decision on the point made by [the employer] in [its] letter dated April 10, 2006.

15.     In order to mount a valid pay equity complaint under section 11 of the CHRA, the complainants must demonstrate that the employees are part of the same “establishment.” According to section 10 of the Equal Wages Guidelines, 1986, to be part of the same establishment, the employees must be employed by the same employer.

16.     Similarly, in order to launch a valid complaint under sections 7 and 10 of the CHRA, the complainants must be found to be employed by Treasury Board, as section 7 deals with discrimination in “employment” and section 10 with the discriminatory practices of an “employer.”

17.     Her Majesty, represented by the Treasury Board, is the employer of employees employed in departments named in Schedule 1 of the Financial Administration Act and other portions of the federal public administration listed in Schedule IV of that Act (Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2).

18.     Her Majesty, as represented by the separate agency, is the employer for employees employed in the portions of the federal public administration listed at Schedule V of the Financial Administration Act. These separate agencies have powers or functions that are granted by statute or delegated directly from the Governor-in-Council in relation to human resources management. The Treasury Board, as employer, does not have responsibility for the classification and the wage setting practices of separate agencies and is not the proper respondent in complaints filed on behalf of persons employed by separate agencies.

19.     This statutory scheme permits the separate agencies listed in Schedule V of the Financial Administration Act to act autonomously from the core public administration in fulfilling their mandates and in all matters related to human resources management. The employer expressly designated by statute is either Treasury Board or Schedule V bodies; not both. Any deviation from this requires a legislative change. Any suggestion that there may be a de facto category of employees/employers that stands separate and apart from what Parliament intended under the PSLRA has been expressly rejected by the courts: Gingras v. Canada (1994), 2 F.C. 734 (F.C.A.) and Canada (Attorney General) v. PSAC, [1991] 1 S.C.R. 614 (Econosult).

20.     The courts have also cautioned against treating distinct parts of government as part ofa homogeneous whole. The fact that Treasury Board and separate agencies are both parts of the Crown is insufficient to conclude that one is an extension of the other or that they are indistinguishable for employment purposes: Canada (Attorney General) v. Brown (2008), F.C. 734.

21.     Accordingly, the Treasury Board asks that if the complaints proceed on behalf of Compensation Consultants other than the named complainants, these Consultants must be employed in the core public administration. This clarification is necessary to avoid creating undue expectations.

22.     It is respectfully submitted that these arguments are dispositive of the matter. However, the Treasury Board informs the PSLRB that on May 12, 2009, the Canadian Human Rights Tribunal concluded its hearing into the Harkin et al. v. Canada (Attorney General) case, CHRT file number T1266/7807. At issue in the Harkin case is whether Treasury Board is the employer of the employees of a separate agency for compensation purposes. The complainants in the Harkin case seek the benefit of a pay equity adjustment made as a result of a complaint filed on behalf of employees in the core public administration. The Tribunal reserved its decision.

…

12 The Treasury Board made the following submissions on whether classification issues are matters “…in respect of the employer establishing or maintaining differences in wages…” within the meaning of section 396 of the BIA:

…

23.     The modem approach to interpreting statutes is as stated in Sullivan on the Construction of Statutes and accepted by the Supreme Court in Rizzo & Rizzo Shoes Ltd. [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. R. Sullivan, Sullivan on the Construction of Statutes, 5^th ed. (Markham: LexisNexis, 2008) at 1.

24.     Extrinsic material can be 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: R. Sullivan, Sullivan on the Construction of Statutes, 5^th ed. at 618.

…

27.     The purpose of the PSECA is to ensure that proactive measures are taken to provide employees in female predominant job groups with equitable compensation. In regard to non-unionized employees, the PSECA will require of their employers to determine periodically whether any equitable compensation matters exist in the workplace and, if so, to prepare a plan to resolve them. In the case of unionized employees, the legislation will require the employers and the bargaining agents to resolve those matters through the collective bargaining process.

28.     The PSECA sets out the procedure for informing employees whether an equitable compensation assessment was required to be conducted and, if so, how it was conducted, and how any equitable compensation matters were resolved. It also establishes a recourse process.

29.     The PSLRB is mandated to deal with disputes arising under the PSECA and to hear equitable compensation complaints filed by individual complainants.

30.     The PSECA regime means to address equitable compensation issues through established wage setting mechanisms in the federal public sector (H. Laurendeau, Assistant Secretary, Treasury Board, 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.

31.     The jurisdictional objection of the Treasury Board is founded on subsection 396(1) of the BIA. 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 Canadian Human Rights Commission (CHRC) be referred to the PSLRB:

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

32.     Section 396 outlines the manner in which the PSLRB will deal with the transferred complaints. Essentially, the PSLRB at 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 remedial powers 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.

33.     The transitional provisions maintain the continuity between the CHRA and PSECA regimes. The procedures set out at section 396 are designed to resolve equitable compensation complaints in a manner consistent with the way such matters will be dealt with under PSECA when it comes into force. In particular, the referral of the complaints back to the employer and the bargaining agent for a 180 day period aims to engage the parties who will be responsible for proactively setting equitable wages under the PSECA.

34.     Since the PSECA establishes a comprehensive equitable compensation scheme for the public sector, section 399 of the BIA 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:

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

35.     Both paragraph 396(1)(a) and section 399 of the BIA use the same language: “complaint is 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.

36.     The allegations of discrimination under sections 7 and 10 of the CHRA made in the complaints filed by the Compensation Consultants are strictly related to matters of classification, i.e. the membership of the complainants into a “clerical” occupational group; the factors to be evaluated in a classification standard; and whether the classification system should allow for comparisons of the value of work across occupational groups.

37.     The classification system is the foundation 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, 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 within the right or authority of the employer (i.e. Treasury Board for the core public administration or separate agencies for their employees).

38.     It is submitted that classification is not captured by the term “wages” in ss. 396(1) of the BIA. “Wages” are not specifically defined in the PSECA or for the purposes of sections 7 or 10 of the CHRA, but it can be understood to refer to remuneration for work performed. Internal relativity as established by the classification system is only one of 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, 2nd ed. (Scarborough: Carswell, 1995) at p. 1337.

39.     Wage-setting is an exercise separate from the classification exercise. For unionized employees such as the Compensation Consultants, wages are determined through collective bargaining between the employer and the bargaining agent, taking into account internal and external relativities and any other consideration the parties deem to be appropriate.

40.     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.

41.     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 Public Service Labour Relations Act (PSLRA) preserves the employer’s right and authority 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 BIA makes no 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.

42.     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 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.

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

11.(1) In the exercise of its human resources management responsibilities under paragraph 7(l)(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.

[Subsection 57(3) of the PSLRA provides that the PSLRB must establish bargaining units that coincide with the occupational groups or subgroups established by the employer, unless that group or sub-group would not be appropriate for collective bargaining. As well, under section 59 of the PSLRA, managerial or confidential positions may be excluded from the bargaining unit - even though excluded positions can be classified in the same occupational group as unionized positions.]

44.     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.

45.     In fact, the Federal Court has accepted that classification and wages are not necessarily congruent. In the core public administration, there are numerous allowances that are paid to various employees in addition to the rate of pay for their group and level: Professional Institute of the Public Service of Canada v. Canada (Attorney General) (1988), F.C.J. No. 948.

46.     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 example, the loss of perquisites attendant upon employment 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(1) 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…

47.     It is acknowledged that are cases in which “equality of pay” has been considered as a classification matter. In those cases, the applicant sought to include proposals before an arbitration board or a conciliation board to resolve complaints by biologists of being underpaid compared to medical doctors performing similar work: Professional Institute of the Public Service of Canada v. Public Service Staff Relations Board (1982), 1 F.C. 584 and Professional Institute of the Public Service of Canada v. Canada (Attorney General) (1988), F.C.J. No. 948.

48.     However, it is submitted that these cases are distinguishable from the subject complaints. Although framed as an issue of equality of pay, the case of the biologists was not a matter of gender-based wage discrimination. There is no indication that the biologists or the medical doctors were of predominantly different genders. Also, the cases were fact specific and depended on the particular terms and intended outcome of the proposals. Rather, the Federal Court recognized that rates of pay and classification are severable issues and that in practice, they are not necessarily congruent. See Professional Institute of the Public Service of Canada v. Canada (Attorney General) (1988), F.C.J. No. 948.

49.     The issue of the equality of pay between biologists and medical doctors described in the cases mentioned at paragraph 47 was ultimately resolved through the payment of an allowance to the biologists.

50.     Finally, it is submitted that guidance can be taken from the fact that past orders or settlements of complaints filed under section 11 of the CHRA involving employees of the Treasury Board have not involved modifications to classification. The key feature of the remedy has been to close the wage gap through the payment of a lump sum for any retroactive portion, and to adjust the wages for the future for the complainants. 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 will be assessed against it. It may well be, in the end, that a position would remain at the same level, or the position 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.

13 The Treasury Board made the following requests of the Board:

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1.       Sever the allegations made under sections 7 and 10 of the CHRA and return them to the CHRC;

2.       Rule that the named complainants can only bring the complaints on behalf of other Compensation Consultants employed in the core public administration who have signed written consent forms;

3.       Consolidate the complaints; and

4.       Order that the 180-day period to resolve the complaints start to run on the date at which the PSLRB issues its decision on the matters raised in these submissions.

…

Submissions of the complainants

14 The complainants made the following submissions on the issue of whether Treasury Board was the proper respondent for complaints against separate employers:

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2.       In its submissions, the Treasury Board argues that it is not the proper employer for employees employed by separate agencies within the public service. The Complainants submit that the Treasury Board is the employer of such employees for compensation purposes and is, in any event, a necessary respondent to these complaints.

3.       … [In] a document issued by the Treasury Board of Canada Secretariat, entitled “Negotiation Mandates for Separate Agencies” … it states as follows:

Separate Agencies conduct their own negotiations for unionized employees and determine compensation levels for non-unionized employees. The Treasury Board, however, maintains its expenditure management role in relation to separate agencies. As such, all unionized separate agencies… are required to obtain a mandate for collective bargaining from the President of the Treasury Board through the Labour Relations and Compensation Operations Branch.

4.       Similarly … a document issued by the Treasury Board entitled “Policy Framework for the Management of Compensation” … states, inter alia, the following:

Most separate agencies require the approval of the Governor in Council to enter into collective agreements with the bargaining agents representing their employees. By Cabinet directive, 1967, the Governor in Council requires separate agencies, in advance of bargaining, to obtain from the President of the Treasury Board their collective bargaining mandates, including the objectives to be pursued and the limits to be observed.

5.       The Treasury Board, therefore, remains the ultimate “paymaster” for employees of separate agencies. Any “power” provided to these agencies to set compensation levels is illusory as the Treasury Board sets the ultimate compensation mandates for these agencies.

6.       The Complainants respectfully submit that it is entirely premature for the Board to make a determination, at this early stage, about whether or not the Treasury Board is the employer of such employees for compensation purposes or otherwise a necessary respondent. It is submitted that this will be determined by the Board after it hears evidence as to how compensation levels are determined within separate agencies at the hearing of these complaints.

7.       The Treasury Board was unable to provide any case law to support its contention that the Treasury Board ought not to be considered the employer of employees for separate agencies. In fact, it admits that the issue of whether or not it is the employer in such circumstances is currently being decided in the context of a pay equity case before the Canadian Human Rights Tribunal (the “CHRT”). When the decision in Harkin et al. v. Canada (Attorney General) CHRT File No. Ti 266/7807 is ultimately handed down, it may indeed provide the Board with some guidance with respect to this issue, however, at a minimum, the fact that the matter is now under consideration by the CHRT illustrates that the issue is far from settled.

8.       While the Treasury Board did raise this issue in correspondence to the Tribunal in 2006, the Tribunal chose not to respond to the objection. The Treasury Board could then have brought a formal motion to have the matter determined but for reasons that are entirely unclear, it did nothing and waited until the matter was transferred to the Board.

9.       As the Treasury Board has now apparently decided to pursue the matter, the Complainants, by way of these submissions, request leave from the Board to bring a motion forward to add any separate agencies as respondents to these complaints.

15 The complainants made the following submissions on the jurisdiction of the PSLRB over classification matters:

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10.     In determining its powers with respect to the pay equity complaints at issue, the Board ought to look to the principles of human rights legislation and not to the principles of the Public Sector Equitable Compensation Act, which is not yet in force and which has no logical application to pre-existing pay equity complaints.

11.     The classification portion of the complaints at issue are directly related to “establishing or maintaining differences in wages” within the meaning of s. 396 of the Budget Implementation Act, 2009, as it is the classification of the position that has both “established” and “maintained” the wage levels.

12.     It is respectfully submitted that, under s. 396 of the Budget Implementation Act, 2009 (“BIA, 2009”), the Board has been given broad remedial powers based on those granted pursuant to s. 53 of the CHRA. The Supreme Court of Canada has determined that the CHRA is quasi-constitutional legislation and that the remedial provisions must be broadly interpreted to counteract the effects of discrimination. The Treasury Board’s contention that classification is a “management right” that precludes an appropriate classification remedy being ordered to remedy discrimination is therefore unfounded. There is absolutely no indication in the legislation that the Board is limited to monetary awards in dealing with complaints in respect to an employer “establishing or maintaining differences in wages between male and female employees”. It is submitted that if a classification remedy is necessary or appropriate in order to mitigate or eliminate the effects of discrimination, then the Board has the power to order it.

13.     … the Treasury Board notes that the object of the Public Sector Equitable Compensation Act (“PSECA”) is to create pro-active procedures to address pay equity issues. It suggests that the PSLRB is therefore meant to decide pre-existing pay equity complaints that are transferred to it, pursuant to the procedures set out in the PSECA. In particular, the Treasury Board asserts … that the transitional provisions are “designed to resolve equitable compensation complaints in a manner consistent with the way such matters will he dealt with under the PSECA when it comes into force”.

14.     The PSECA, which was introduced by the BIA, 2009, will replace federal legislation relating to pay equity. The Complainants agree that, instead of being a reactive, complaint-driven system, it will become a pro-active system, whereby issues of pay equity will have to be dealt with between unions and employers at the time of negotiations and resolved through the collective bargaining process.

15.     The PSECA, however, is not yet in force as specifically admitted by the Treasury Board … It is submitted that the Treasury Board’s assertion that the PSLRB should apply the pay equity provisions of the PSECA ignores the fact that the BIA, 2009 had the effect of transferring matters to the PSLRB prior to the PSECA coming into effect.

16.     It is only sections 395- 398 of the BIA, 2009 that are in force at this time. Section 396 specifically provides a system for transferring certain pre-existing complaints before the Canadian Human Rights Commission to the Board. That section provides the Board with, among other powers, the power to interpret and apply the relevant provisions of the CHRA and to order any remedy that the CHRT would be permitted to order under s. 53 of the Act. Specifically, the section states, inter alia, as follows:

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 thecomplaint 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.

…

(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.

17.     Section 396 of the BIA specifically gives the Board all the powers set out in section 53 of the CHRA, when dealing with pay equity complaints. It is submitted that this would not be necessary if the provisions of the PSECA were intended to apply to pre-existing complaints transferred to the PSLRB prior to the legislation coming into force. A portion of s. 53 of the CHRA states as follows:

Complaint substantiated

53(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:

(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including

(i) the adoption of a special program, plan or arrangement referred to in subsection 160, or

(ii) making an application for approval and implementing a plan under section 17;

…

(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;

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(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.

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(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice willfully or recklessly.

18.     Once the PSECA is proclaimed, its pay equity provisions will then subject employers and unions to a scheme whereby issues of pay equity will have to be addressed at the bargaining stage. It is respectfully submitted that it would be illogical if the provisions of the PSECA were intended to apply to pre-existing complaints that had been transferred from the CHRT because those matters simply could not be addressed in the manner prescribed under the PSECA.

19.     To illustrate the illogical nature of the Treasury Board’s position on this point, the Board only need have regard to the provisions of the PSECA itself. Under the PSECA, the duty to negotiate equality of pay arises at the time parties are negotiating a new collective agreement. In this case, the relevant time period for the complaints is 1997 to date. Obviously, the relevant parties cannot negotiate collective agreements for periods from 1997 to the present; these collective agreements have already been negotiated, acted upon and in most cases expired. Therefore, the principles relevant to these can only be those arising from the CHRA and the Guidelines.

20.     Section 396(3) of the BIA, 2009 also specifically gives the PSLRB powers to apply the Human Rights Act and the Equal Wages Guidelines, 1986 (the “Guidelines”) even after the PSECA comes into effect, which would not have been necessary if the provisions of PSECA were meant to apply to complaints arising prior to the statute coming into effect, given that the pay equity scheme under the PSECA is entirely different.

21.     It is submitted, therefore, that the present dispute ought to be determined by applying the pay equity principles that have been developed pursuant to the CHRA and the Guidelines. Sections 396(3) and (9) of the BIA, make it clear that the PSLRB has the power to fashion appropriate remedies, with the only limiting factor being that a lump sum payment may be in reference to a time period only up to the day on which the PSECA comes into force.

22.     This position is also supported by the principles relating to the presumption against legislative retroactivity. Sullivan outlines the common law rules with respect to temporal application of legislation and notes the strong presumption against retroactivity, as follows (Sullivan on the Construction of Statutes, 5th ed. (Toronto: Butterworths, 2008) at pp. 669-670):

• It is presumed that the legislature does not intend legislation to be applied retroactively — that is, to be applied so as to change the past legal effect of a past situation.
• This presumption is strong. Normally it can be rebutted only if the statute or regulation in question contains language clearly indicating that it, or some part of it, is meant to apply retroactively.

23.     In Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), [1975] S.C.J. No. 116, Dickson J. outlined the presumption against retrospectivity at page 6 as follows:

First, retrospectivity. The general rule is that statutes are not to be construed as having retrospective operation, unless such a construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on a date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively.

24.     In this case, there is nothing in the legislation, express or implied, to indicate that the PSECA was intended to have retrospective effect, in fact, it is just the opposite. The present legislation specifically provides in section 396(3) that the PSLRB has the power to apply the interpretation of the CHRA and the Guidelines with respect to complaints transferred to it, even when the PSECA comes into force. Therefore, it is these principles that are intended to guide the Board in this case, not the new scheme set out in the PSECA.

25.     Secondly, the Treasury Board argues that the issues relating to classification are not properly before the Board because they are not matters relating to “establishing or maintaining differences in wages” between male and female employees as set out in section 396 (1)(a) of the BIA, 2009. The Complainants submit that this position is not supportable because it is the employer’s classification of the positions at issue that has directly “established” and “maintained” the differences in wages amongst the Complainants.

26.     Obviously, not all claims brought pursuant to section 10 of the CHRA are related, directly or indirectly, to wage disparity between male and female employees. For example, an employee could have been fired or refused a promotion on the basis of a prohibited ground of discrimination and it is clear that section 396 of the BIA 2009 was not intended to relate to these kinds of claims. In this case however, it is respectfully submitted that matters of classification are directly and inextricably related to the complaints about wage differences between male and female employees. As a result, the classification complaints must be considered as falling within the ambit of s. 396(1)(a) of the BIA 2009.

27.     The complaint of Diane Melançon (the “Melançon Complaint”), for example, states that the classification of the work of Compensation Consultants has resulted in “substantially lower wages and benefits for this group.” At page 2 of the Melançon Complaint, it refers to “… the adverse effect that the discriminatory classification has had on our wages and benefits…”

28. It is respectfully submitted that the substance of the Melançon Complaint (and of all other Complaints) relates to the disparity in wages between a female group and a male group, who are (it is alleged) conducting work of equal value. The complaints all make clear that it is classification that has caused the disparity in wages, allowed it to develop and to be maintained. In other words, the classification system was the very method whereby the employer imposed policies of lesser pay to a predominantly female group for work of equal value to a predominantly male group.

29.     As such, it is respectfully submitted that classification is directly related to the complaintsof wage disparity and falls within the ambit of the “employer establishing or maintaining differences in wages between male and female employees” within the meaning of s. 396 of the BIA, 2009.

30.     The Treasury Board suggests that reclassification is not an appropriate remedy, as classification is a management right, which is not subject to collective bargaining. The remedy requested by the Complainants is as follows:

(a) Reclassification of the Compensation Consultant position in a way that values the work of the Compensation Consultant position correctly, compensates us in a manner that is not discriminatory and which provides for the recognition of the professional status of the position, effective as of April 1, 1997, in accordance with ss. 53(2)(b) of the Canadian Human Rights Act.

31.     As argued above, the substance of the classification complaints at hand is that the employer, by its classification of the Compensation Consultants, has allowed an inequitable situation to develop and continue whereby a predominantly female group has been paid less money, for work of equal value, than a comparator male dominated group. Therefore the requested remedy relates directly to “establishing or maintaining differences in wages between male and female employees” within the meaning of s. 396 of the BIA, 2009.

32.     The request for reclassification as a remedy is, respectfully, crucial because without it, the Complainants may (or may not) be made whole for past pay inequities but certainly would not be compensated and properly valued on a going forward basis. The only way that the work can be properly valued and the Complainants paid equitably is through reclassification of the positions at issue.

33.     The Treasury Board argues further that classification is not a matter that is subject to collective bargaining and points out that section 7 of the PSLRA maintains the ability to assign duties and classify positions as a management right to the Treasury Board.

34.     In making this argument, the Treasury Board refers to the decision of ESSA v. Canada (Public Service Staff Relations Board), in support of its position that management has the right to assign duties and classify positions. In fact, in that case, the Federal Court of Appeal held that the PSSRB was wrong to declinejurisdiction because a proposal related in part to reclassification.

35.     More importantly, the Treasury Board’s argument ignores the fact that in the present case, we are dealing with remedies that would be ordered pursuant to powers under human rights legislation. It is settled law that human rights legislation can be considered second only to constitutional law. Where there is a conflict between human rights legislation and any other legislation of general application, the human rights law will prevail. Courts and other decision makers must give the legislation a broad and liberal interpretation and robust remedies are available to counteract the effects of discrimination: Insurance Corp. of British Columbia v. Heerspink, 1982 CarswellBC 224 (S.C.C.); Canadian National Railway v. Canada (Canadian Human Rights Commission), 1987 CarswellNat 831 (S.C.C.); Robichaud v. Canada, 1987 CarswellNat 1105 (S.C.C.)

36.     In Insurance Corp., Lamer J. noted at paragraph 32:

When the subject matter of a law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have, through their legislature, clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Human Rights Code, 1973 (B.C.) 2nd Sess., c. 119 [now R.S.B.C. 1979, c. 186], or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.

37.     In CNR, Dickson C.J.C., for a unanimous Court, observed at paragraph 26:

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a Court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact.

38.     In Robichaud, La Forest J. observed at paragraph 13:

This is all the more significant because the Act, we saw, is not aimed at determining fault or punishing conduct. It is remedial. Its aim is to identify and eliminate discrimination. If this is to be done, then the remedies must be effective, consistent with the “almost constitutional” nature of the rights protected.

39.     … when dealing with a complaint brought pursuant to the CHRA, the PSLRB has broad remedial powers. Therefore, if it becomes clear to the Board that a matter of classification is an integral component of any remedy for pay equity, it should be able to order such a remedy. It simply cannot be concluded that management rights pursuant to the PSLRA allow the Treasury Board the right to institute or maintain classification that are contrary to human rights legislation.

40.     The Treasury Board declared, in its submissions, that there are no human rights cases where classification was awarded as a remedy to a pay equity complaint. However, in the decision of P.S.A.C. v. Canada (Treasury Board) 1991 CarswellNat 1551 (CHRT), the Tribunal did deal with matters of classification in the context of pay equity complaint.

41.     P.S.A.C. v. Canada (Treasury Board), involved a complaint alleging that the Treasury Board had discriminated in the classification and pay of employees in the female dominated Hospital Services (HS) in comparison to the male dominated General Services (GS), contrary to sections 7, 10 and 11 of the CHRA. When the matter came on for hearing, the parties presented the Tribunal with a consent order. The terms of the consent order required that the Treasury Board make wage adjustments to equalize the wages for the HS employees with GS employees at comparable classification levels. The consent order also reserved jurisdiction to the Tribunal to settle certain issues, if they could not be agreed upon by the parties. The complainant later applied to have the Tribunal exercise its reserved jurisdiction.

42.     The complaint consisted of two main arguments: (1) that there was discrimination in wages between the HS and GS groups; and (2) that there was discrimination in classification between HS and GS groups of employees.

43.     The Tribunal noted that the wage disparities between the two groups arose from the values attached to the different levels in the classification system, observing at paragraphs 32 and 33:

While the facts agreed to at the time of the Consent Order stopped short of an acknowledgement of discrimination in classification there was no real dispute between the parties that some such discrimination did exist. 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. Thus, the original complaint was also substantiated with respect to discrimination in classification.

44.     The Tribunal went on to determine that the discrimination in classification which resulted in lower pay was not the result of deliberate discrimination; rather, it was the result of systemic discrimination. In addition to ordering compensation to the parties for the historical wage disparity, the Tribunal also ordered the following at paragraph 182:

182(1) That the Respondent cease classifying Hospital Services employees on the basis of either the Hospital Services Classification Standard dated December, 1966, as amended, or the Hospital Services Classification Standard dated July, 1989, or any other classification standard for Hospital Services employees which is similarly discriminatory in comparison to the General Services Classification Standard dated June, 1969;

(2) That, in consultation with the Canadian Human Rights Commission, the Respondent adopt and implement as soon as practicable a Hospital Services Classification Standard which is free of systemic gender bias in comparison to the General Services Classification Standard;

45.     Therefore in that case, the Tribunal was dealing with the issue of pay equity, and determined that the classification system was the method by which the disparity in wages arose between the predominantly female group and the predominantly male group. It is submitted that this situation illustrates that the present complaints fall within the ambit of “establishing or maintaining differences in wages between male and female employees” and is therefore a proper subject matter for the PSLRB to deal with.

46.     Additionally, it is submitted that the Board should have regard to the decision of P.S.A.C. v. Canada (Treasury Board) (2005), CarswellNat 2983 (F.C.). In that case, the union brought a complaint to the CHRC with respect to sections 7, 10 and 11 of the CHRA. The section 11 complaint was referred to the Tribunal and a decision was made ordering wage compensation in the form of pay equity adjustments. The CHRC had suspended an investigation into the section 7 and 10 aspects of the complaint while the section 11 complaint proceeded. In the interim, the parties attempted to work together to establish a new classification standard as a job evaluation tool but were unsuccessful. The CHRC prepared an Investigative Report and recommended that the CHRC take no further proceedings in the complaint made under sections 7 and 10.

47.     At the Federal Court level, the Court noted that the Investigative Report was of an unacceptably narrow focus, observing at paragraph 39:

In its Report, the Investigator focused exclusively on the fact that the CR and PM groups were no longer segregated, but were subsumed in one group the PA group. However, the Report failed to acknowledge the crucial fact that the classification system was never actually modified or changed in order to eliminate the discriminatory aspects which clearly existed. It was the purpose of the UCS initiative, but it was abandoned by the Respondent because it was apparently “unworkable”. As a result, and even if the CR and PM groups have formally been subsumed in one larger group, the fact remains that the old classification standards continue to be applied, as evidenced by the pay schedules from the most recent PSAC/Treasury Board collective agreement.

48.     It was the determination of the reviewing Court that the CHRC committed an error in relying solely on the defective Investigative Report to make its decision not to proceed on the other complaints. As noted by the Court, the fact that the pay schedules were still based on the old classification standards was problematic and meant that discrimination still existed and should have been pursued by the Commission. Absent ordering an overhaul of the classification standards, discrimination could not be remedied. This case further illustrates therefore that a remedy relating to a classification system can be appropriate in the context of a pay equity complaint.

49.     The remedies that may be ordered under section 53 of the CHRA are broad and flexible. Where necessary to ensure the issues of discrimination are dealt with, the powers under this section extend to making orders that might otherwise be considered to interfere with the management rights of employers. These types of powers and remedies have been exercised by the Tribunal in its capacity as the interpreter of the “quasi-constitutional” legislation that it is dealing with. The following are examples of the exercise of this broad remedial power:

• In Green v. Canada (Public Service Commission) [2001] F.C.J. No. 778 (T.D.), the Federal Court upheld remedies imposed by the Tribunal, including what was referred to as “systemic remedies”, including ordering that: (1) the Treasury Board work with the CHRC to create an education and training program for all its employees relating to accommodation; (2) the program developed be implemented within 18 months of the release of the decision; (3) a procedure be implemented to review cases where a disabled individual does not come within the parameters of any one specific policy or procedure; (4) the Treasury Board review its policies concerning access to language training to ensure that proper accommodation measures were applied; and, (5) the Public Service Commission create an alternative testing mechanism for persons with learning disabilities in the context of the language training program.
• In Swan v. Canada (Canadian Armed Forces), [1994] C.H.R.D. No. 15 (CHRT), the Tribunal ordered a “policy remedy” requiring the Canadian Armed Forces to make a number of specific changes to its draft harassment policies within 90 days of the decision. The Canadian Armed Forces was also ordered to amend its compassionate leave policy.
• In Grover v. Canada (National Research Council) [1992] C.H,R.D. No. 12 (CHRT) the National Research Council was ordered to “enter into consultation with the Commission in order to review thoroughly its human rights program and policy”.
• In Kurvitz v. Canada (Treasury Board), [1991] C.H.R.D.No.7 (CHRT) the Treasury Board was ordered to make amendments to the Collective Agreement between the parties to eliminate the discriminatory effect of check-off provisions.

50.     … the Board is possessed of the same broad and flexible remedy powers when dealing with a pay equity complaint. There is nothing in the legislation suggesting that the Board is limited to giving monetary remedies only. Rather, the legislation states only that any monetary remedies are limited to a lump sum form of payment to compensate for any period up to the coming into force of the PSECA. In fact, the Board has been given all of the remedial powers inherent in section 53 of the CHRA. It is submitted that if reclassification of the positions at issue in this case is required, in order to remedy discrimination, then the Board has the necessary power to make that remedial order.

51.     At a minimum, … it is far too premature at this stage, prior to the Board having heard any evidence on the issues, to determine that it is precluded from dealing with a classification remedy. It is the Complainants’ position that the Board should be given the opportunity to determine whether addressing classification matters or reclassifying employees is an appropriate remedy, in the event that it ultimately upholds all or any part of the complaints before it.

…

[Emphasis in the original]

Submissions of the bargaining agent

16 The bargaining agent limited its submissions to the objection of the Treasury Board to the inclusion of matters relating to classification. The full written submissions of the bargaining agent are on file with the PSLRB. The edited version of the submissions is as follows:

…

3.       The jurisdiction which is conferred on the PSLRB in respect of these complaints is outlined at paragraph 396(1)(a) of the BIA, which directs the PSLRB to deal with certain complainants filed under sections 7 and 10 of the Canadian Human Rights Act (“CHRA”).

4.       The Employer submits that classification issues are not matters “in respect of the employer establishing and maintaining wages” within the meaning of section 396(1) of the BIA. The Employer submits two headings of argument in support of its submission: the legislative context and statutory interpretation, and the nature of classification in the core public administration.

5.       The Employer’s arguments however, fail to take into account the clear intent and proper interpretation of s. 396(1) of the BIA, and ignore the fact that it is through systems of classification that discriminatory wages are established and maintained.

…

6.       Subsection 396(1) of the BIA reads as follows:

396(1) The following complaints with respect to employees that are before the Canadian Human Rights Commission on the day on which this Act received royal assent, or that are filed with the Commission during the period beginning on that day and ending on the day on which section 399 comes into force, shall despite subsection 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 s. 11 of the Canadian Human Rights Act.

7.       It is well established that the words of a statute are to be given their grammatical and ordinary meaning, and must be read in a manner which makes sense in the context of the statute overall, and which is reflective of the purpose of that statute. (R. Sullivan, Sullivan on the Construction of Statutes, 5^th ed., p. 1)

8.       Where the legislation in question can be characterized as “benefits-conferring legislation,” “it ought to be interpreted in a broad and generous manner” (Re Rizzo and Rizzo Shoes Ltd. at para. 36).

9.       The Employer offers no commentary on the meaning to be assigned to the phrase “establishing or maintaining differences.” The words of s. 396(1) of the BIA do not refer solely to “wages,” nor do they refer to the “paying” or the “negotiating through collective bargaining” of wages, although these are the concepts that appear in the Employer’s submissions. s. 396(1) of the BIA instead refers to “establishing or maintaining differences in wages.”

10.     This critical distinction is one which the Employer deliberately avoids at several instances of its argument. The Employer repeatedly stresses that “classification and wages are not necessarily congruent.” This Employer statement sidesteps entirely the obvious and established fact classification is inextricably linked to “establishing or maintaining differences in wages,” which is the language which the relevant section of the BIA actually uses… the Employer refers to “wage-setting,” another term which is not found in the BIA.

11.     Similarly, “establishing or maintaining differences in wages” cannot be equated with the term “pay,” as suggested by the Employer… “Establishing or maintaining differences in wages” is clearly a broader issue than mere pay, if ordinary meaning is given to these words. “Wages” and “pay” may be roughly equivalent terms, referring to the compensation an employee receives. However, the word “wages” is used in the BIA in a broader and more qualified context of “establishing or maintaining differences in wages.” This context cannot be ignored, and must expand the meaning of what is included under s. 396(1) of the BIA beyond mere “wages” alone. The phrase “establishing or maintaining differences in wages” must refer to a variety of activities involved in the establishment or maintenance of wages, and not just the receipt of the wages by an employee. Classification is clearly part of “establishing or maintaining” wages.

12.     Further, it is of no relevance that classification is not currently the subject of collective bargaining between the parties, as cited in the Employer’s submissions at paragraphs 40 and 41. While the PSECA (which is not yet in force) will place a positive obligation on both the Employer and on bargaining agents, s. 396 makes no limiting reference to aspects of wages which may be, or are currently, the subject of collective bargaining. To read such a reference into s. 396 would violate the established principles of statutory interpretation.

13.     While reference may be made to certain extrinsic aids to statutory interpretation, especially where the legislative intent is vague or unclear, such recourse should not be used to vary or contradict statutory language which is clear and unambiguous (R. Sullivan, Sullivan on the Construction of Statutes, 5^th ed., p. 1, ).

14.     The broad and vague statements of Ms. Laurendeau while testifying before the Senate Standing Committee on Finance, while of academic interest, are merely the self-serving comments of one of the parties to this litigation. They do not reflect the will of Parliament, for which Ms. Laurendeau does not speak. As such, they should be disregarded as a tool of legislative interpretation.

15.     Further, the PSECA, to which the Employer makes extensive reference in its submissions, is not yet in force. There is nothing in this legislation which indicates that it is to have retrospective application, absent which no such application could be construed.

16.     In turning to the broader context of the BIA, several aspects of the legislation indicate that the phrase “establishing and maintaining differences in wages,” must not be given the narrow interpretation which the Employer proposes.

17.     First among these is the constitutionally protected nature of the rights which are the subject of the transitional provisions of the BIA. Legislation protecting such rights is to be read and interpreted in a broad, purposive manner (Canada (Canadian Human Rights Commission) v. Canadian Airlines International Ltd., [2006] SCJ No. 1, at 15 and 16 and Robichaud v. Canada, 1987 CarswellNat 1105 (SCC)).

18.     Second, the broad remedial powers granted to the Public Service Labour Relations Board under the transitional provisions of the BIA are not consistent with a jurisdiction which is limited to wages alone, which would require only the authority to award a monetary remedy. The Public Service Labour Relations Board (“PSLRB”) has been given the power to interpret and apply sections 7, 10 and 11 of the CHRA and the Equal Wages Guidelines, 1986. These powers are not limited to granting a monetary remedy, and as such indicate that broad remedial authority was needed to allow the Board to address non-monetary aspects of the complaints which would come before it (s. 396(1)(c)).

19.     Finally, the purpose of the overall Act must be taken into consideration in any exercise of legislative interpretation. The purpose of this portion of the BIA is to transfer matters related to pay equity to the PSLRB in the interim period prior to the coming into force of PSECA. The preamble of the BIA makes reference to a comprehensive equitable compensation scheme for the federal public sector. Such purpose would be inconsistent with a partial transfer to the Public Service Labour Relations Board of complaints relating to “establishing or maintaining differences in wages.”

…

20.     The connection between wages and classification is indisputable, and is expressly or implicitly admitted at several points in the Employer’s submissions (see paras. 37, 38, 39).

21.     The nexus between classification and “establishing or maintaining differences in wages” is even stronger, as the Employer also implicitly acknowledges.

22.     The words “to establish or maintain differences in wages” do not exist in a jurisprudential vacuum, nor are they original to the BIA. They appear in s. 11(1) of the CHRA, and it must be assumed that it was the will of Parliament, in choosing the same phrase which was included in the CHRA, to import this phrase as it has been defined in the context of that Act (R. Sullivan, Sullivan on the Construction of Statutes, 5^th ed., p. 1).

23.     Discriminatory classification systems are so termed because they render impossible any non-discriminatory comparison of the work done by male and female dominated groups, and thus form a cornerstone in the establishment and maintenance of discriminatory wages. As such, it is impossible to separate the discriminatory “classifying” of work performed from the “establishing or maintaining” of the wages paid for that work (PSAC v. Canada (Treasury Board), (2001) CarswellNat 1551 (CHRT) at 32-33 and PSAC v. Canada (Treasury Board), (2005) CarswellNat 2983 (FC).

24.     This becomes abundantly clear through a close examination of the Equal Wages Guidelines, 1986, (“the Guidelines”) which the Board has been given jurisdiction to interpret and apply in respect of the Complaints transferred to it under s. 396(1)(c) of the BIA. Sections 3 through 9 of the Guidelines, read in conjunction with s. 11, demonstrate the inextricable nature of the assessed value of work through a classification system, and the wages which are ultimately paid for that work.

25.     Assessing the relative value of the work performed by male and female dominated occupational groups is an integral part of the job evaluation process, and results, ultimately, in the differing and possibly discriminatory wages which may be paid to these groups (Ontario Nurses Association v. Women’s College Hospital, [1992] OPED No 20 and Ontario Nurses Association v. Haldimand-Norfolk (Regional Municipality) [1991] OPED No 52.

26.     While not all CHRA s. 10 complaints are wage related, by definition all wage complaints (whether under s. 10 or s. 11 of the CHRA) must, by their very nature, relate either directly or indirectly to the way in which the work performed is classified or valued. Such classification or evaluation may be formal (as in the case of the federal public service), or may simply be expressed through the relative values informally assigned by an employer to the work of different groups of employees, as ultimately reflected by their total compensation.

27.     Classification is not ancillary to wage differences, or even merely related to wage differences; it is the source of the establishment of differential wage rates, and it provides the rationale whereby these differences are maintained. Where the differences in question are discriminatory, it is classification which is the source of the discrimination. As such, the distinction between discriminatory wages and discriminatory classification structures which the Employer posits in its written submissions is entirely illusory.

28.     Given that the classification of work performed clearly forms part and parcel of the “establishing or maintaining” of wages as described by both the CHRA and the BIA, the words of s. 396(1) of the BIA must be given their ordinary and grammatical meaning, in harmony with the legislative context and the purpose of the statute. The Employer’s objections should, therefore, in the respectful submission of the Bargaining Agent, be dismissed.

…

[Emphasis in the original]

Reply submissions of the Treasury Board

17 The Treasury Board made the following general submissions in reply to the complainants’ submissions on the issue of separate agencies:

• Holding that the Respondent is the employer of employees employed by separate agencies is inconsistent with the established legislative framework governing federal public service employment and labour relations. The approval by the President of the Treasury Board of the collective bargaining mandate of most separate agencies is an extension of the Treasury Board’s control over government expenditures, not its role as employer.
• The Treasury Board opposes the Complainants’ motion to add separate agencies as respondents to the complaints, as they do not have a relevant role with respect to the employment issues at hand.

18 The Treasury Board made the following general submissions in reply to the submissions with respect to the classification-related issue:

• The jurisdiction of the PSLRB under section 396 of the Budget Implementation Act, 2009 (BIA) must be interpreted in light of the whole of the statute book enacted by Parliament, including the Public Service Equitable Compensation Act.
• Classification is not “in respect of establishing and maintaining differences in wages.” In a unionized environment, that is the role of collective bargaining.
• Classification is not the source of wage discrimination. Classification as a means to define and organize the goals and values of management is distinct from job evaluation for pay equity purposes.
• There is no justification to adopt a broad and liberal interpretation of section 396 of the BIA.
• Granting the remedial powers found at section 53 of the Canadian Human Rights Act (CHRA) to the Public Service Labour Relations Board (PSLRB) is irrelevant to the definition of its jurisdiction.

19 The Treasury Board made the following specific submissions on whether it is the proper respondent for a complaint filed on behalf of individuals employed by a separate agency:

…

3.       The Complainants allege that … the Treasury Board, is the employer for separate agencies for compensation purposes, due to the fact that the President of the Treasury Board pre-approves the collective bargaining mandate of separate agencies.

4.       The Treasury Board is a committee of the Queen’s Privy Council chaired by the President of the Treasury Board. It is entrusted with a wide variety of powers, including:

• Acting for the Queen’s Privy Council on matters relating to financial management, including estimates, expenditures, financial commitments, accounts, fees or charges for the provision of services or the use of facilities, rentals, licences, leases, revenues from the disposition of property, and procedures by which departments manage, record and account for revenues received or receivable from any source whatever; and
• Acting for the Queen’s Privy Council on matters relating to human resources management in the federal public administration, including the determination of the terms and conditions of employment of persons employed in it (Financial Administration Act (FAA), R.S. c. F-11, s. 5, 7(1)c) and 7(1)e))

5.       The powers of the Treasury Board are subject to direction by the Governor-in-Council, who may also revoke or amend any action of the Board. With respect to the exercise of powers related to the management of human resources, the powers of the Treasury Board do not extend to any matter that is otherwise provided for by statute or that has been delegated by the Governor-in-Council to a separate agency (FAA, s. 8, 11.1(2), 11.2, 12(2) and 12.1).

6.       Responsibility for the management of personnel in a separate agency is typically provided to the separate agency by Parliament by statute, or provided by Order in Council (FAA, s. 11.2, 12(2); Parks Canada Agency Act, S.C. 1998, c. 31, s. 13 and Canadian Food Inspection Agency Act, S.C. 1997, c. 6, s. 12 and 13.

7.       Thus, subject to terms and conditions set by Parliament or the Governor in Council, separate agencies have the authority to manage personnel in their organizations including the classification of positions, the determination of the terms and conditions of employment of their employees, the setting of wages and the adoption of human resources management policies.

8.       On November 30, 1967, Cabinet agreed that separate agencies can exercise the powers and functions of the Governor in Council and Treasury Board in relation to the matters specified in Section 7(1) of the FAA, including the determination and regulation of pay for employees. The Record of Cabinet Decision contained the following conditions:

• such authority be granted on the understanding, first, that separate employers consult with the Treasury Board staff on any new or modified policies they propose to implement, or to be presented at the bargaining table, and, second, that they hold such consultations in sufficient time to permit representations to the Governor-in-Council, if need be, before any action is taken;
• separate employers be required, in advance of bargaining, to obtain, from the same Ministerial source giving direction to Treasury Board negotiators, terms of reference defining the objectives to be pursued and the limits to be observed by their negotiators in collective bargaining.

9.       Following this Cabinet decision, most separate agencies seek the approval of the President of the Treasury Board for their collective bargaining mandate. The Canada Revenue Agency is an exception. It has the sole authority to enter into a collective agreement with a bargaining agent for a unit composed of Agency employees. This is subject to consultations – but not approval – with the Treasury Board on its human resources plan (Canada Revenue Agency Act, S.C. 1999, c. 17, s. 58).

10.     It does not follow that the Treasury Board is the employer for separate agencies for compensation purposes. First, as noted in the Respondent’s first Submissions, there is no room for de facto employment relationships in the public service: Canada (Attorney General) v. PSAC, [1991] 1 S.C.R. 614 (Econosult).

11.     Second, this would be incompatible with the powers granted by statute or delegated to separate agencies, and Parliament’s clear intent to separate from the core public administration organizations that can best fulfill their mandates and serve the public interest by being employers in their own right. The federal public service labour relations regime reflects this separation, for example:

• By prohibiting Treasury Board to enter into a collective agreement in relation to a bargaining unit composed of employees of a separate agency.
• By providing for successor rights and conversions when a new separate agency is created or an existing agency is re-integrated into the core public administration. Such provisions serve no purpose if the core public administration and separate agencies are the same employer (PSLRA, s. 79-93, 111).

12.     The separation is further supported in case law. The argument that a public servant is employed by the “federal government” was rejected in Zimmermann v. Treasury Board (DIAND) 2008 PSLRB 87. In Peck v. Parks Canada 2009 FC 686 (at para. 28), the Federal Court recognized that Parks Canada, a separate agency, was “an employer independent of the Treasury Board.”

13.     Third, it has been recognized in case law that the Treasury Board’s obligations with respect to pay equity do not extend to employees of other employers (in these cases, Crown corporations): Stevenson v. Treasury Board (Canadian Museum of Nature) (1994) 25 PSSRB No. 24; MacLean v. Treasury Board (National Gallery of Canada) (1993) 24 PSSRB No. 30; upheld (1994) F.C.J. No. 549.

14.     Finally, separate agencies are funded through appropriations approved by Parliament though a supply bill. The Treasury Board has a broad responsibility over direct program spending across government.

15.     The Complainants rely on the Treasury Board Policy Framework for the Management of Compensation in support of a contention that it is the employer for separate agencies for compensation purposes. However, the Policy Framework explains that the role and responsibilities of the Treasury Board with respect to compensation management vary depending on whether it is dealing with the core public administration, separate agencies, the Canadian Forces, the RCMP and appropriation-dependent Crown corporations. The Policy Framework indicates that the Treasury Board manages compensation for the core public administration as part of its role as the employer. With respect to separate agencies, the quote relied upon by the Complainants at paragraph 4 of their Submissions is preceded by the following:

Separate agencies: Separate agencies may exercise their own human resources authority granted by their enabling statute or by Order in Council. This authority may be unconditional or subject to conditions such as prior consultation with or approval by Treasury Board. Separate agencies are employers in their own right.

16.     Similarly, the document titled Negotiation Mandates for Separate Agencies specifies in its second paragraph that Treasury Board exercises this oversight as part of its authority over expenditure management.

17.     The Respondent opposes the Complainants’ motion to add separate agencies as respondents to these complaints.

18.     There are presently 27 separate agencies. Each agency has its own framework within which it manages its human resources. It would unduly delay the proceedings and prejudice organizations by having them respond to litigation involving numerous complainants with which they may have no relationship.

19.     Simply adding separate agencies as respondents disregards the fact that blanket parallels cannot be made between Compensation Consultants across the federal public administration. For example, Compensation Consultants employed at the Communications Security Establishment (CSE) are classified as UNI-06. The current annual rate of pay for a UNI-06 is between $61,302 and $72,122. By comparison, Compensation Consultants classified as AS-2 in the core public administration are paid between $50,854 and $54,793.

20.     Furthermore, naming the Treasury Board as a respondent to a gender-based wage discrimination complaint filed against a separate agency is unnecessary. Whether a separate agency is consulting or seeking approval for its collective bargaining mandate or it is engaged in discussions over the approval of its yearly overall budget, it is up to the agency to present a business case establishing its operational requirements, including any legal liabilities. This internal process does not call for the Treasury Board, as the keeper of public funds, to be made a respondent to any and all complaints that could have a monetary impact.

21.     We note that the Treasury Board is not typically named as a respondent in other types of proceedings involving separate agencies. This has not prevented separate agencies from fulfilling financial obligations to their employees. See Peck v. Parks Canada and In the matter of an interest arbitration between the Canadian Nuclear Safety Commission and PIPSC, PSLRB file 585-03-01.

22.     It is therefore respectfully submitted that the complaint against the Treasury Board should only proceed on behalf of Compensation Consultants employed in the core public administration who have or who will file a signed consent. Compensation Consultants employed by a separate agency, who believe that they have been the victim of gender-based wage discrimination, can file a complaint against the specific separate agency that employs them.

23. … the Complainants state that the Respondent brought this issue to the attention of the Canadian Human Rights Tribunal and could have filed a motion to have it determined. This is inaccurate. The Respondent raised this issue with the Canadian Human Rights Commission, not the Tribunal. There was no determination of the Commission for the Respondent to have judicially reviewed. The Complainants have been on notice since 2006 that this was an issue.

20 The respondents made the following specific submissions on the issue of jurisdiction over classification-related matters:

…

24.     The Respondent does not take the position that the provisions of the PSECA apply to the present complaints, nor does it suggest that the PSECA, once in force, will have a retroactive or retrospective application.

25.     It is the position of the Respondent that the jurisdiction of the PSLRB in this matter is defined at section 396 of the BIA. Section 396 of the BIA should be interpreted in light of the whole of the related statute book produced by Parliament. The governing principle is described as follows in Sullivan on the Construction of Statutes (at 411):

The presumptions on which statute interpretation is based apply not only to single Acts but also, albeit with lesser force, to the entire body of legislative provisions of which the law is comprised at a given time. This includes delegated legislation. It also includes law that has been enacted, but yet come into force. The legislature is presumed to know its own statute book and to draft each new provision with regard to the structures, conventions and habits of expression as well as the substantive law embodied in existing legislation.

When courts examine a provision in the context of the statute book as a whole, they are concerned primarily with two things. One is avoiding conflict with the provisions of other statutes. It is presumed that the legislature does not intend to contradict itself; it is presumed to create coherent schemes. Therefore, interpretations that avoid the possibility of conflict or incoherence among different enactments are preferred.

The other thing courts look for is patterns. Patterns may be substantive, reflecting recurring legislative preferences, or formal, reflecting recurring habits of expression. When a pattern appears frequently throughout the statute book, a departure from it may be significant. The more established and striking the pattern, the more persuasive the inference that can be drawn when the legislature varies or disregards it.

26.     The Respondent submits that, even if they are not yet in force, the PSECA and section 399 of the BIA can be used not only to determine the will and intention of Parliament, but also to interpret the enacted provisions in the statute, and to interpret other legislation: Reference re Criminal Law Amendment Act, 1968-69 [1970] S.C.R. 777; Royal Bank of Canada v. Saskatchewan Power Corp. (1990), 73 D.L.R. (4th) 257 (Sask. C.A.) and R. v. United Kingdom (Secretary of State for the Home Department), [1995] 2 All ER 244 (H.L.) at p. 11, 37-38.

27.     Also, the issue of whether classification is “in respect of establishing and maintaining wages” should be examined in light of the place classification occupies in the broader federal public service labour relations and employment regime, as framed in the Public Service Labour Relations Act. In Canada (Attorney General) v. PSAC, the Supreme Court considered three other statutes referring to federal employees in order to determine the scope of “employee” in section 33 of the Public Service Staff Relations Act: Canada (Attorney General) v. PSAC, [1991] 1 S.C.R. 614 (Econosult).

28.     The present complaint is governed by the transitional provisions of the BIA. Under those provisions, the PSLRB is granted the authority to interpret and apply sections 7, 10 and 11 of the Canadian Human Rights Act (CHRA) and the Equal Wages Guidelines, 1986 for those complaints referred to it under subsection 396(1), i.e. complaints based on section 7 or 10 of the 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:

396 (3) The Board has, in relation to a complaint referred to it, the power, in addition to the powers conferred on it under the Public Service Labour Relations Act, 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.

29.     Simply stated, while the CHRC complaints are being referred to the PSLRB to be addressed, the obligations in the CHRA and Equal Wages Guidelines, 1986 continue to apply for those complaints. This ensures 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 its final disposition.

30.     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 restrictions for monetary remedies) for those complaints referred to it under subsection 396(1):

396 (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.

31.     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

32.     When the PSECA comes into force, complaints filed under the PSECA will be addressed by the PSLRB exclusively under the provisions of the PSECA.

33.     The rights of employees to file complaints under the 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)).

34.     In addition to the above list, a non-unionized employee may file a complaint with the PSLRB if he or she is dissatisfied with any matter in the employer’s response under subsection 9(3) or if he or she believes that he or 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.

35.     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 he or 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 he or 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)).

36.     If classification is found to be “in respect of establishing and maintaining wages between female and male employees,” it will follow that the Canadian Human Rights Commission (CHRC) and the CHRT will not have jurisdiction over such matters once section 399 of the BIA comes into force. As seen above, the PSECA does not contain provisions to address classification complaints. Furthermore, under the PSECA, arbitration boards will continue to be prevented from looking at classification, as they are presently under the Public Service Labour Relations Act.

37.     If classification is found to be “in respect of establishing and maintaining wages between female and male employees,” the cumulative impact would be that public sector employees would not have a 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.

38.     Given the large size, diversity of work and complexity of accountability of the core public administration, 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 uses a predominantly position-based human resources management 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.

39.     In a position-based HRM system, the 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, Labour and Employment Law in the Federal Public Service (Irwin Law Inc., 2007) at page 433):

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.

40.     The Respondent acknowledges that there is a relationship between a position’s classification and the salary for that position. 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 the standards to be mapped to salary levels.

41.     On one occasion, however, the PSSRB 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), CPSSRB No. 143.

42.     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. 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: Treasury Board Policy on Terms and Conditions of Employment.

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

• 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;
  • 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;
• Affordability within the government’s commitments to provide services to Canadians, its fiscal circumstances and the state of the Canadian economy.

44.     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 incumbents of that position which would support that the classification system “establishes” wages. It merely serves as the organizational framework to which wages are applied.

45.     The Complainants allege that classification is “in respect of the employer establishing and maintaining differences in wages” because they claim in their complaint that it is the source of disparity in wages. With respect, the mere fact that the Complainants make this assertion does not determine the issue of jurisdiction: Parkolub and Hu v. Canada Revenue Agency 2007 PSLRB 64 at par. 106.

46.     The PSAC relies on the Equal Wages Guidelines, 1986 to support its argument that classification is the source of wage discrimination.

47.     Section 9 of the Equal Wages Guidelines, 1986 lists criteria which the method of assessment of value of work must meet, if that method of assessment is to be used for the purpose of a pay equity complaint filed under section 11 of the CHRA. These criteria are:

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.

48.     Section 9 of the Equal Wages Guidelines, 1986 merely sets out the criteria for a job evaluation system to be used for the purposes of a pay equity complaint filed under section 11 of the CHRA. It has no application for job evaluation for purposes other than pay equity. A classification system is not required to meet the above criteria unless it is being used as a job evaluation tool for the purposes of conducting a pay equity analysis under section 11 of the CHRA: Public Service Alliance of Canada v. Canada (Treasury Board), 32 C.H.R.R. 349 at paragraph 18; application for judicial review dismissed Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 and Ontario Nurses’ Association v. Haldimand-Norfolk (Regional Municipality).

49.     Jobs in the core public administration that are related in broad terms by the nature of the functions performed are classified in occupational groups and sub-groups. Classification standards determine the relative value of the work within the group or sub-group. Different classification standards, reflecting the often very different nature of the work they are designed to measure, have various numbers of levels and place differing degrees of emphasis on the varying criteria evaluated by them. Thus, the classification standards are not used to evaluate jobs for the purpose of comparing different classifications or occupational groups in a pay equity analysis. For example, in the present case, the relevant classification standards would not permit the measurement of the relative value of the work done in the AS classification with the work done in the Complainants’ chosen comparator groups: SI, ES, CS or HR.

50.     Furthermore, 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 a form of job evaluation is a component of each exercise does not defeat this separation.

51.     Equal pay for work of equal value can be achieved even if a classification standard does not meet the criteria for the job evaluation system for the purpose of assessing a complaint filed under section 11 of the CHRA: Wiseman v. Canada (Attorney General), [2009] C.H.R.T. No. 19.

52.     The PSAC asserts that the scope of the jurisdiction of the PSLRB is a matter of human rights and therefore must benefit from a broad and liberal interpretation.

53.     The jurisdiction conferred upon the PSLRB by Parliament under the BIA is not a substantive issue of human rights. Rather, it is a question of who, between the PSLRB and the CHRC/CHRT, will deal with a human rights complaint over classification under the CHRA. The complainants are not being deprived of any right or possibility of effective remedy.

54.     The PSAC also argues that the broad remedial powers granted to the PSLRB are inconsistent with a jurisdiction which is limited to wages alone.

55.     Granting the PSLRB the broad remedial powers found at section 53 of the CHRA does not mean that classification was meant to be captured within the jurisdiction of the PSLRB. It would be inappropriate to speculate on the specific type of non-monetary remedy that the PSLRB may see fit to order if it finds that the complaints have merit; the grant of the full powers of section 53 of the CHRA to the PSLRB allows it to order the following remedies other than a wage adjustment:

• Compensation for any expenses incurred by the victim as a result of the discriminatory practice (53(2)c) of the CHRA)
• Compensation for pain and suffering (53(2)e) of the CHRA)
• Special compensation (53(3) of the CHRA)
• Interest (53(4) of the CHRA)

56.     … the Complainants portray PSAC v. Treasury Board (HS/GS complaint) as an example of how changing the classification system solved a pay equity problem.

57.     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.

58.     Furthermore, the facts at issue in the HS/GS complaint were 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 AS-2 Compensation Consultants and their proposed comparators.

59.     PSAC v. Treasury Board, to which the Complainants refer [in] … their Submissions, does not support the proposition that a classification remedy can be appropriate for a pay equity complaint. To the contrary, the case is an example of how classification and wage discrimination are severable. As indicated by the complainants, the pay equity (section 11 of the CHRA) aspect of the complaint was severed and resolved in 1999. Wage adjustments were made and pay equity was reached without the need to make changes to the classification structure: PSAC v. Canada (Treasury Board) (2005), CarswellNat 2983 (F.C.) and Canadian Human Rights Tribunal Consent Order dated 16 November 1999.

60.     Contrary to what the Complainants assert … the Federal Court never held that the CR and PM classification standards were problematic or discriminatory. The Court only held that the CHRC failed to properly investigate the merits of the CR/PM complaint:

[42] In a nutshell, I am of the view that the PSAC was entitled, on behalf of its CR members, to a thorough examination of its allegations of discrimination. (…)

[43] Having said this, I agree with the respondent that the Commission has never accepted the complaint as valid, contrary to what the applicant argues. This would be tantamount to saying that once a complaint is accepted for filing, the Commission must appoint a tribunal or that once an investigator initially determines that a further inquiry is warranted, he/she cannot change his/her mind based on subsequent evidence.

[44] Similarly, the respondent has never conceded that the CR classification standard is discriminatory. There is simply no evidence suggesting that the employer’s efforts to introduce either UCS or any other classification reform are an admission that the present standard is, in fact, discriminatory. The same can be said of the decision to consolidate the CR and PM groups in the new PA group: nowhere is there any indication that this is in recognition that the former separation of the CR and PM groups was discriminatory.

[45] It is precisely because there is disagreement as to the discriminatory nature of the present scheme that the Commission should have looked into this matter more carefully.

61.     The CHRC accepted the withdrawal of the CR/PM complaint on July 9, 2009, prior to the completion of its investigation into its merits.

Reasons

21 The parties made no submissions on the naming of the Department of Industry, the Department of Health and the Canadian International Development Agency as respondents to these complaints. The relevant CHRA sections refer to the “employer.” It is clear that, for purposes of compensation, a department is not an employer. Accordingly, the complaints against the three named departments will be dismissed.

22 The Treasury Board has objected to being the respondent for those parts of the complaints that relate to separate employers. It appears that the CHRC never addressed this objection when the employer initially raised it in 2006. The complainants have, in addition to their complaints, made a motion to add separate employers to their complaints. The three complainants are employed in the core public administration, and their employer is the Treasury Board. Complaints can only be filed against the employer of the person filing the complaint. Accordingly, I order that separate employers be removed from the complaint and I also dismiss the motion to add separate employers to these complaints.

23 The Treasury Board’s position is that the PSLRB does not have jurisdiction over those aspects of the complaints that relate to classification and to the classification standard for the AS group as it applies to the compensation consultant positions. The Treasury Board’s position is that those aspects of the complaints 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 (PSECA) is proclaimed. For the reasons set out below, I have dismissed the Treasury Board’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 if the statutory provisions are ambiguous. In any event, the evidence of witnesses before a parliamentary committee, including an employer representative, cannot assist in determining the intent of Parliament in passing this legislation.

25 I also agree that legislation that has not come into force 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 were 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 (see subsection 396(1) of the BIA). Those complaints are to be “dealt with” by the PSLRB, “as required by this section” (see subsection 396(2) of the BIA). The PSLRB has been given additional powers under these transitional provisions. In addition to the powers that it already has under the PSLRA, the PSLRB has been given the power “to interpret and apply” the provisions of the CHRA (its sections 7, 10 and 11) and the Equal Wages Guidelines, 1986. The PSLRB has that power “even after” the coming into force of the PSECA. This reinforces the view that the regime for complaints during the transitional period is to be treated differently than those complaints that may arise after proclamation. The PSLRB 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 directing an end to a discriminatory practice.

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

28 Similarly, the Treasury Board argues that, since an arbitration board does not have jurisdiction over classification, it is not possible that the PSLRB would have jurisdiction over that matter. As noted earlier in this decision, the regime for addressing “equitable compensation” under the PSECA is different from the regime for resolving pay equity complaints under the BIA’s transitional provisions. Therefore, I do not need to make any determination on the scope of the PSLRB’s jurisdiction for complaints that may be filed after the coming into force of the PSECA.

29 The Treasury Board has admitted that classification may have some relevance to the determination of wages. In its initial submission, the employer stated as follows:

…

38.     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 Treasury Board also stated the following:

…

40.     The Respondent acknowledges that there is a relationship between a position’s classification and the salary for that position. 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 the standards to be mapped to salary levels.

…

42.     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 be obtained only through a full hearing of the complaints.

32 In the hearing of the complaints, the PSLRB will have the power to interpret and apply the Equal Wages 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 Treasury Board asserts that the classification standard does not have to meet the requirements of that section of the Equal Wages Guidelines, 1986, unless it is being used as a job evaluation tool for the purposes of conducting a pay equity analysis under section 11 of the CHRA. Evidence at the full hearing of the complaints will be required to determine if this assertion is valid.

34 The Treasury Board 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 Wages Guidelines, 1986. In that case, the complainants 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 complainants 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 Treasury Board also referred me to the decision of the Federal Court in Public Service Alliance of Canada v. Treasury Board (2005), CarswellNat 2983 (2005 FC 1297). That decision was a judicial review of the determination by the CHRC not to refer a complaint that a classification standard was discriminatory to the CHRT. The decision focused on the procedural fairness and the obligation of the CHRC to give 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 the Public Service Alliance of Canada v. Treasury Board [1991] C.H.R.D. No. 4 (QL), the CHRT 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 these complaints. Therefore, this is a matter that must be determined at the time of 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 The Treasury Board submits that, if I conclude that the Board has jurisdiction, “…it will follow that the…CHRC and…CHRT will not have jurisdiction over such matters…” once the PSECA comes into force (paragraph 36 of the reply submissions). My determination in this case relates solely to the transitional provisions of the BIA. I do not need to determine the jurisdiction of the PSLRB under the provisions of the PSECA. Any determinations of the PSLRB’s jurisdiction under the PSECA will have to wait until it is proclaimed into force.

40 There is no dispute between the complainants and the Treasury Board that those aspects of the complaints alleging a breach of section 7 of the CHRA are not properly before the PSLRB. The parts of the complaints alleging a breach of section 7 of the CHRA were dismissed by the CHRC. The complaints that were forwarded to the PSLRB were not amended in accordance with that dismissal. Accordingly, for greater certainty, I am ordering that the complaints be amended to exclude references to section 7 of the CHRA.

41 The Treasury Board has also requested that the 180-day time requirement before the scheduling of a hearing (see subsection 396(6) of the BIA) start afresh from the date of this decision. The Treasury Board 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. This period has now expired. There were no submissions from the parties on whether they 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 PSLRB for an extension at that time. Such a request will be considered by the PSLRB based on the submissions of the parties.

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

Order

43 The complaints against the Department of Industry, the Department of Health and the Canadian International Development Agency are dismissed.

44 The complaints are amended to remove any reference to “separate employers.”

45 The motion of the complainants to add separate employers as respondents to the complaints is dismissed.

46 The jurisdictional objection of the Treasury Board about the allegations relating to the classification standard is dismissed.

47 The complaints are amended to remove all references to allegations of a breach of section 7 of the CHRA.

February 5, 2010.

Ian R. Mackenzie,
Vice-Chairperson