FPSLREB Decisions

I. Complaint before the Public Service Labour Relations Board

1 On January 6, 2011, the Canadian Human Rights Commission referred this complaint to the Public Service Labour Relations Board ("the Board") pursuant to subsection 396(1) of the Budget Implementation Act, 2009 (S.C. 2009, c. 2; "the BIA"), which came into force on March 12, 2009. Section 396 provides 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 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.

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

(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.

(4) The Board shall review the complaint in a summary way and shall refer it to the employer that is the subject of the complaint, or to the employer that is the subject of the complaint and the bargaining agent of the employees who filed the complaint, as the Board considers appropriate, unless it appears to the Board that the complaint is trivial, frivolous or vexatious or was made in bad faith.

(5) If the Board refers a complaint under subsection (4) to an employer, or to an employer and a bargaining agent, it may assist them in resolving any matters relating to the complaint by any means that it considers appropriate.

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

(7) The Board shall determine its own procedure but shall give full opportunity to the employer, or the employer and the bargaining agent, as the case may be, to present evidence and make submissions to it.

(8) The Board shall make a decision in writing in respect of the complaint and send a copy of its decision with the reasons for it to the employer, or the employer and the bargaining agent, as the case may be.

(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.

2 On January 9, 2002, the Public Service Alliance of Canada ("the complainant" or "the bargaining agent") had filed a complaint with the Canadian Human Rights Commission based on sections 7, 10 and 11 of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; "the CHRA"). The complainant alleged that the employer discriminated against members of the bargaining unit employed as Interviewers (INs) and Senior Interviewers (Sr/INs) on the basis of sex by not extending to them pay equity adjustments due them. Furthermore, it alleged that the employer has continued to discriminate against these employees by maintaining differences in wages between these predominately female employees and employees performing predominately male work of equal value.

3 Section 7 of the CHRA provides as follows:

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

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

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

on a prohibited ground of discrimination.

4 Section 10 of the CHRA provides as follows:

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

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

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

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

       Section 11 of the CHRA provides as follows:

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

…

5 On April 7, 2011, the Board reviewed the complaint pursuant to subsection 396(4) of the BIA and referred it to the Statistical Survey Operations (SSO or "the employer"), which is the employer that is the subject of the complaint, and the bargaining agent.

6 A request was received from the parties on January 23, 2014, for a preliminary ruling on whether INs and Sr/INs at the SSO fell within the Clerical and Regulatory (CR) occupational group during the period after 1985 when they were formally employed by the Treasury Board of Canada (TBC) until the SSO was established. The purpose of this decision is to answer that question alone.

7 Briefly stated, the complaint before me alleges that the complainants are entitled to the pay equity adjustments paid to CRs in the public service as a result of the global pay equity complaint. Although the complainants are not and never were classified as CRs, their claim rests on the fact that they were treated as CRs during the period in question for pay purposes and that the question of the employer's failure to classify them as such does not deprive them of their right to pursue their claim. Section 10 of the CHRA refers to a "class" of employees rather than to the classification of employees and the pay equity provisions of the CHRA focus on the work performed by the group claiming pay inequity rather than the group's classification within the employer's classification scheme. The complainants therefore claim that they are entitled to found their complaint on the fact that, as a class of employees, they fall within the CR occupational group for the purposes of pay equity comparisons.

II. Summary of the evidence

8 Before 1985, INs and Sr/INs were not recognized as employees under the Public Service Employment Act (R.S.C., 1985, c. P-33; "the former PSEA"), which has since been repealed and replaced with the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13)) and were not employees of the TBC. In 1985, the predecessor to this Board, the Public Service Staff Relations Board (PSSRB), determined that the TBC was in fact the employer (see Public Service Alliance of Canada v. Treasury Board, PSSRB File Nos. 144-02-240 and 241 (19850501); "the Bendel decision"). In that decision, the Board member left open the issue of "… whether the persons … subject … [to this application] are included in an occupational group, be it one for which an employee organization has been certified or not." In Public Service Alliance of Canada v. Statistical Survey Operations, PSSRB File No. 144-24-282 (19880627), the PSSRB ordered that the complainant be certified as the bargaining agent for a bargaining unit comprising the employees of the employer engaged in carrying out business surveys. This order was later amended to include employees carrying out survey activities in the employer's regional offices (2000 PSSRB 7) and again amended in 2000 PSSRB 107 to include "[a]ll employees of the employer engaged in the carrying out of survey activities primarily outside of Statistics Canada offices."

9 Before the Bendel decision, INs and Sr/INs were not part of the core public administration. They were hired on contract under the Statistics Act (R.S.C., 1985, c. S-19) on the recommendation of local members of parliament responsible for the area where the need existed. Their rates of pay were based on those of the CR group. On an annual basis, the minister responsible for Statistics Canada would recommend to the TBC to increase their rates of pay consistent with that received by the CR group for that same period.

10 Following the Bendel decision, the TBC became the employer of record for the INs and Sr/INs and paid them as members of the CR occupational group pending the resolution of the question posed in the Bendel decision as to their appropriate allocation and classification. Statistics Canada was worried that its interests, the nature of its operational requirements and the ministerial flexibility for staffing envisioned within the Statistics Act could not be met if the INs and Sr/INs were lumped into the larger CR group. The employer required a human resources structure that met its peculiar needs and not necessarily those of the core public administration. This was achieved with the creation of the SSO as a separate employer.

11 Statistics Canada and the complainant engaged in various levels of discussions concerning the appropriate allocation and classification of these employees. To resolve an impasse, the INs and Sr/INs were transferred to a newly created separate employer, the SSO, where they continued to be paid in unclassified positions using the CR occupational group as a benchmark. The IN and Sr/IN positions were never formally classified by the TBC and to this day have not been classified by the SSO, which uses a TBC classification standard for interviewers.

12 The TBC authorized separate agencies, including the employer, to make salary relativity payments to their employees on June 15, 1990 (see exhibit 1, tab 106). Shortly after that, the TBC announced that it would be providing the INs and Sr/INs with a retroactive lump-sum payment as a pay equity adjustment covering the 1985-1987 period, when the TBC was the employer. Any further pay equity adjustments paid to the CR group were denied to the INs and Sr/INs. This denial is the basis of the complaint and therefore the preliminary determination the parties seek.

13 Joyce Hendy testified on behalf of the complainant. She commenced employment with Statistics Canada in 1981 as an IN and since that time has held various positions within Statistics Canada and the SSO. According to Ms. Hendy, Statistics Canada's mandate is to from time to time collect, compile and report on statistical data relative to Canadians' economic situation. The INs' work was and is collecting data. While required to probe to clarify certain issues with Canadians responding to the survey, interviews were primarily conducted by reading from a prepared list of questions and recording the respondents' answers. The IN and Sr/IN job descriptions (Exhibit 1, tabs 11 and 12) accurately characterize the nature of the work performed by these employees.

14 Ann Marie Smith was accepted by the Board as a classification expert for the federal public service, having been certified by the Treasury Board Secretariat as a classification advice specialist until her retirement in 2004. Since that time, she has worked as a consultant in the same area. Ms. Smith testified concerning the development of the job classification structure within the federal public service. She explained that before 1999, the occupational groups set out in the various classification standards were also the basic units for collective bargaining. All positions had to fit within an occupational group. In 1999, changes to the classification structure resulted in the reduction of occupational groups from 72 to 29. These 29 now form the basic units for collective bargaining. The classification standards, such as CR, have been subsumed within the broader occupational definitions. They are relevant for determining pay and the relative value of work performed by employees within the classification standard.

15 Ms. Smith testified that based on her assessment of the IN and Sr/IN job descriptions, the primary purpose of their work fits within the administrative support category, where the CR occupational group exists. According to Ms. Smith, both jobs clearly fit within that definition, just like other federal public service positions that interact with the public and secure information.

16 Elizabeth Millar was employed by the bargaining agent as a research officer specializing in classification and from 1976 to her retirement was the complainant's head of classification. Her job was to determine the appropriate bargaining group for the INs and Sr/INs. She gave evidence to that effect during the post-Bendel decision hearings before the PSSRB. The positions could not be assigned to a bargaining unit without conducting a classification exercise of some sort. The conclusion she reached, based on a review of the job descriptions and interviews with the employees in those positions, was that the positions should be properly allocated to the Administrative Support Category, CR group. The hearings at which she testified were discontinued when the SSO was established and the INs and Sr/INs were made a separate bargaining unit.

17 Hermel Long testified for the respondent with respect to the events that took place at Statistics Canada in the 1980s and 1990s, when he was the manager of Management Services at Statistics Canada. Between 1986 and 1987, he researched the implications of the Bendel decision.

18 Between 1985 and 1987, when the INs and Sr/INs were TBC employees, they were part of the Statistics Canada Regional Operations Branch. Their primary role was to gather information from survey respondents for Statistics Canada, which is the national statistical agency; it has a cross-country infrastructure. The hiring authority for the INs and Sr/INs was section 5 of the Statistics Act (which is explained in Exhibit 3, tab 148, at page 2). According to the "Interviewer Work Agreement" (Exhibit 1, tab 25, bullet 1 of Annex 10), Statistics Canada agreed to pay the INs according to the salary scales established by the TBC and according to relevant directives issued by Statistics Canada. On an annual basis, the minister responsible for Statistics Canada would recommend an increase to the rate of pay consistent with that received by CRs employed by the TBC. This increase required an Order in Council to be implemented.

19 Mr. Long was familiar with the Bendel decision and testified that Statistics Canada challenged it in the Federal Court. The Bendel decision required Statistics Canada to provide representations on the appropriate occupational group for the INs and Sr/INs. This process was never completed as a result of the applications for judicial review. Between 1985 and 1987, no changes were made to the recruitment or hiring process. The method for determining rates of pay continued until April 1, 1988, at which point the SSO had been established, and the respondent anticipated receiving notice to bargain from the complainant.

20 When the Bendel decision was released, there was an outstanding question of allocating the IN positions to a classification group. To determine how to respond to this question, Statistics Canada considered whether the INs fell within the CR classification. It was determined that the IN work was unique and that no other government department, at that time, conducted similar functions under similar conditions. The complainant might have argued that the INs should have been classified as CRs, but Statistics Canada disagreed. To support Statistics Canada's arguments, Mr. Long compared the duties of INs to statistical clerks classified as CRs. Based on this comparison and the opinions expressed by Statistics Canada regional directors who were responsible for INs (Exhibit 1, tabs 18, 42, 43, 44, 47 and 49), he concluded that INs were not CRs.

21 Mr. Long developed various scenarios related to classifying the INs and Sr/INs and the impact of each scenario on the minister's prerogative to hire under section 5 of the Statistics Act, the person-year consumptions and operational flexibility. Given the nature of the work, which was part-time and paid hourly with no guaranteed minimum or maximum number of hours as it was survey driven, the personnel management manuals from the TBC made it very difficult for the respondent to meet its mandate. The SSO needed its own language in collective bargaining in order to survive. Classifying the INs and the Sr/INs within the CR group would have buried them in the much larger core public administration. It was determined that a new group was required, which would allow the respondent to build collective agreements around its own operational needs. A draft classification plan (Exhibit 1, tab 70) was developed in 1988, which was later discarded in favour of the two-level IN-Sr/IN structure, although no formal evaluation was conducted of the jobs (Exhibit 1, tab 65). To this date, the jobs have not been evaluated.

22 In 1990, the TBC made pay equity payments to its employees retroactive to April 1, 1985. This was announced to the core public administration in a memo (Exhibit 2, tab 93) and was later clarified by a letter to separate employers (Exhibit 2, tab 95), which recognized that they were not obligated to adopt the same pay equity implementation methodology as that adopted by the TBC.

23 Once the TBC made the announcement for the core public administration in 1990 related to ongoing pay equity payments, the INs and Sr/INs began asking why they were not entitled to the payments. The SSO asked the TBC the same question. Its response (Exhibit 2, tab 106) was that interim measures were to be taken to ensure relativity with the CR and ST rates of pay. These interim measures were to be operative for a period of two years, during which individual agencies were to conduct their own pay equity studies.

24 The respondent never did conduct the pay equity study. It met with the complainant in early 1991 and explained that no study would be completed as the INs and Sr/INs were part of a self-contained two-level group with no male-dominated comparator within the organization. In October 1990, the interim measures were approved by the Minister of Supply and Services. Retroactive payments were approved for the period during which the INs and Sr/INs were deemed TBC employees (April 1, 1985, to November 5, 1987), which represented the entire liability under the CHRA for the INs and Sr/INs in the respondent's opinion (Exhibit 2, tabs 117 and 123). In the respondent's opinion, the INs and Sr/INs were attributed to the CR group only for pay purposes.

25 Eventually, the IN and Sr/In employees received retroactive pay for the entire period from April 1, 1985, to March 31, 1991, inclusive (Exhibit 3, tab 136). These equalization payments were relativity payments and were not to be considered pay equity payments.

26 Edith Kehoe testified at length about the former PSEA, the Public Service Staff Relations Act (R.S.C., 1985, c. P-35; PSSRA) and the Public Service Modernization Act (S.C. 2003, c. 22), which, while informative, was not particularly relevant to the question of jurisdiction. One thing that was of particular importance in this case is that to the best of her knowledge, the INs were never classified against the CR classification descriptions.

III. Summary of the arguments

A. For the complainant

27 There is little difference in the versions of the facts of the complainant and the employer. What differs is the focus. The bargaining agent's focus is on the analysis of the occupational group. The employer's focus is on a legal argument. The primary purpose of the question before the Board is whether the IN and Sr/IN positions fall into the CR occupational group.

28 This is not a classification grievance or certification application. It is a human rights complaint filed in 2002 under sections 7, 10 and 11 of the CHRA over which this Board has jurisdiction. This grievance is about wage discrimination. This grievance alleges a violation of the CHRA. The CHRA is quasi-constitutional legislation which is paramount to the collective agreement.

29 This grievance does not seek to prevent the employer from classifying the employees in question as such an action is not within the scope of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA). What this grievance does is to seek to ensure that consistent with human rights jurisprudence, management exercises its rights in a non-discriminatory fashion (see Canada (Attorney General) v. Walden, 2010 FC 490). The Board cannot impose restraints on how to classify a position, but it can review such decisions to determine if a human rights violation occurred.

30 Before 1985, the INs and the Sr/INs were contract employees. Then, in May 1985, the PSSRB determined that they were employees for the purposes of collective bargaining. The hearings on which occupational group the affected employees were to be allocated to ended when the SSO was created. Ultimately, the bargaining agent was certified as bargaining agent for those employees.

31 The employer did not deny that the primary purpose of the IN and Sr/IN positions was to gather information and data from survey responders. The nature of the work is not in dispute. The uncontradicted evidence in this case about the primary purpose of their work and the application of the relevant standards confirms that they did fall within the CR classification standard. This determination falls squarely within the Board's jurisdiction, and the complaint should be heard on its merits. The critical evidence in the present case is uncontested and uncontradicted. Mr. Long and Ms. Hendy both testified that the primary purpose of the work was to collect and gather data on behalf of Statistics Canada. This conclusion was confirmed by Ms. Smith's analysis. There is no basis on which the respondent can challenge Ms. Smith's expert analysis as it failed to contest the substance of that analysis on cross-examination. It failed to put forward any alternative possibilities to Ms. Smith's conclusion that the positions clearly fit within the CR occupational group. Nor did the respondent tender any evidence from a similarly qualified witness that another analysis was plausible.

32 As to the matter of prejudice to the employer, as a result of the passage of time, it too is not plausible. The issues in the present case date back to the complaint filed in 2002 of which the employer was completely aware.

33 The respondent objected to the Board's jurisdiction to determine this matter as both the PSSRA and the PSLRA protect the TBC's authority to classify positions. This protection of management's right to classify positions is narrowly construed to actually classifying positions and does not restrict the Board's authority to determine occupational group allocation for other purposes, such as collective bargaining.

34 The jurisdiction of this Board to deal with complaints under sections 7, 10 and 11 of the CHRA alleging discrimination is found within section 396 of the BIA. In transferring jurisdiction to the Board, there is no indication that Parliament intended to restrict the scope of the protection provided under the CHRA. It has clearly established that human rights protections are not limited by management rights, whether statutorily enacted or otherwise (see Walden, at para 14 to 20). There is no basis in human rights law to suggest that the employer's management right to classify a position allows it to classify that position in a discriminatory manner.

35 Furthermore, the Supreme Court of Canada and the Federal Court of Appeal have recognized that human rights legislation is paramount over other legislation (see Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145). In Canada (Attorney General) v. Druken, [1989] 2 F.C. 24, at 5 and 6, the Federal Court sets out the quasi-constitutional nature of human rights legislation and the interpretive principles that flow from the designation.

36 On that basis, there is nothing to support the respondent's assertion that this Board is without jurisdiction in this matter, which involved the determination of whether wage discrimination occurred pursuant to sections 7 and 10 of the CHRA.

37 Any Board decision as to allocating positions to an occupational group would not interfere with the employer's right to classify positions. This Board has repeatedly ruled that the prohibition against interfering with management's right to classify positions does not limit the Board's authority to determine whether certain positions fall within an occupational group definition for other purposes, such as bargaining unit determination (see the Bendel decision, at para 15, Federal Government Dockyards Trades v. Treasury Board (National Defence), [1974] C.P.S.S.R.B. No. 74 , at para 30-32, Public Service Alliance of Canada v. Treasury Board, PSSRB File No. 147-02-34 (19890717) at 23, Canadian Federal Pilots Association v. Treasury Board, 2008 PSLRB 42, and International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board and Public Service Alliance of Canada, 2010 PSLRB 109).

B. For the respondent

38 The complainant has asked the Board to find that when the SSO was created in November 1987, the INs and Sr/INs brought with them their CR classification from the core public administration. There is no evidence that the SSO or TBC ever classified the IN positions as CRs for the period they were deemed to have been employed by the TBC. Furthermore, it makes no sense 30 years later to rewrite history by classifying these employees as CRs when the Board in the Bendel decision referred the matter back to the parties for resolution. The classification issue was ultimately resolved between the complainant and the employer with the SSO's creation.

39 If the Board determines that the INs fell within the CR bargaining unit during the 1985-1987 period, it would not automatically establish that these positions would have been classified in the CR group and level for that period. The respondent would have clearly opposed a CR classification as it precluded the operational flexibility for which the SSO was created.

40 To be successful in obtaining for its members the pay equity compensation paid to the core public administration as a result of the 1999 Canadian Human Rights Tribunal (CHRT) order, the complainant would need the Board to retroactively classify the INs at a specific CR classification level, which the Board should not entertain. The threshold question of whether INs and Sr/INs fell within the CR occupational group during the 1985-1987 period should be answered in the negative. The employer, the TBC, chose not to classify IN positions within the CR classification, and the Board cannot impose a classification on positions that the employer has chosen not to classify.

41 Mr. Long testified that during the 1985-1987 period, Statistics Canada took no steps to create and classify the IN positions in any federal occupational group. INs were not recruited under the former PSEA but rather pursuant to ministerial prerogative under the Statistics Act. Mr. Long testified that he was personally involved in the IN classification and that if any type of official departmental classification had occurred, he would have known of it.

42 When the Bendel decision was released, there was an outstanding question of allocating the IN positions to a classification group. It was determined that the IN work was unique and that no other government department, at that time, conducted similar functions under similar conditions. The complainant might have argued that the INs should have been classified as CRs, but Statistics Canada disagreed. To support Statistics Canada's arguments, Mr. Long compared the duties of INs to statistical clerks classified as CRs. Based on this comparison and the opinions expressed by Statistics Canada regional directors who were responsible for INs (Exhibit 1, tabs 18, 42, 43, 44, 47 and 49), he concluded that INs were not CRs.

43 Mr. Long developed a draft classification plan for the INs (Exhibit 1, tab 18). The purpose of the draft classification was to provide senior management with a visual representation of what a classification standard for the INs would look like. After the SSO was created, the employer used the draft classification to consider whether a new classification for the INs was even required. The draft was never finalized as the employer determined that it was not required, and it continued to simply use one group with two levels in order to pay the employees. The SSO had the right to choose to use a classification standard from the core public administration, create one of its own or not use one. Ultimately, the SSO decided that a formal classification standard was not required given that there are two positions within the SSO, i.e., IN and Sr/IN.

44 Mr. Long went on to testify that INs were never paid pursuant to CR wage rates. Rather, for the purposes of determining annual pay increases, Statistics Canada looked at the pay increases that the TBC authorized for employees in the core public administration, including CRs. Statistics Canada based its requests for pay increases for the INs pursuant to section 11 of the Statistics Act on those provided to employees in the core public administration. However, the Interviewer Work Agreement (Exhibit 1, tab 25) specifically states that INs would be paid according to salary scales established by TBC. To this end, for pay purposes only, INs were compared to CRs.

45 It is not sufficient for the Board to determine that the INs should have been part of the CR bargaining unit for the 1985-1987 period. Payments to CR employees pursuant to the 1999 CHRT consent order are based on group and level. The INs have not been attributed to any group or level. Thus, ultimately, to direct payment under the order to the INs, the Board must engage in a classification exercise, which is prohibited under what was section 7 of the PSSRA, which is now section 7 of the PSLRA (see Public Service Alliance of Canada v. Treasury Board, PSSRB File No. 125-02-41 (19851113), at para 15). The employer's authority to classify positions rests with the TBC and the department it authorizes to exercise such responsibility, as is the case with the SSO (see Brochu v. Canada (Treasury Board), [1992] F.C.J. No. 1057 (C.A.) (QL)).

46 It is unfair and unnecessary for this Board to retroactively make findings on the appropriate allocation of INs to a bargaining group. By May 1986, the complainant knew of the plan to create a separate employer for whom the INs would work, as is confirmed in Ms. Millar's memo of May 28, 1990, to the complainant's regional offices concerning the payment of pay equity awards (Exhibit 2, tab 103). In 1990, the complainant continued to maintain that INs belonged to the CR group and referred the issue to the PSSRB for a determination of the appropriate bargaining unit for INs between 1985 and 1987. The PSSRB made no such determination as the question was resolved with the SSO's creation. Now, 28 years after the initial Bendel decision, the complainant seeks to resurrect its plan to have the Board rule on the appropriate bargaining unit for the INs. Such an extreme delay makes it difficult for the employer to put forward relevant evidence, given that most government witnesses have since retired and very few have any specific recall of the key facts. This Board has held that in the case of lengthy delays, there is a presumption of prejudice to the respondent (see McConnell v. Professional Institute of the Public Service of Canada, 2005 PSLRB 140, at para 17).

47 If the Board chooses to proceed with the determination of this matter, it must consider the employer's classification plan when making its determination of the appropriate bargaining unit for the INs. When considering the bargaining unit issue, the Board is prohibited from taking any action that directly or indirectly alters an employees' classification. The respondent was expressly opposed to including INs in the CR group and ultimately took steps that resulted in the creation of an IN classification within a separate employer organization. Furthermore, while the SSO and the TBC provided the INs with the pay equity adjustments even though they were not formally classified CRs, they did so in response to the INs' request and to ensure that the INs maintained pay relativity with the core public administration. This goodwill gesture should not be interpreted as an admission by the respondent that the INs were properly classified as CRs, a position it has consistently rejected.

48 The Board should not entertain the complainant's request that a determination be made that the CR group would have been the appropriate bargaining group for INs in 1985.

IV. Reasons

49 In making a decision related to the preliminary question posed by the parties, it is essential that a certain degree of clarification be provided as to the true nature of a pay equity complaint. While s.10 of the CHRA refers to a "class" of individuals and the Equal Wages Guidelines refer to occupational groups, neither indicate that the employer's classification structure is determinative in assigning complainants to either a class or occupational group for the purposes of pay equity. A group of employees may file a pay equity complaint provided they can establish that they represent a class of employees who are discriminated against in the area of pay. The CHRA does not require that employees who file a complaint be classified at all or within the same group according to an employer's classification system. Rather, the legislation requires that they constitute a group of employees with characteristics in common enough so as to enable them to be seen as a class of employees for the purposes of pay equity. An employer's failure to classify employees cannot be used to deny them the right to file a pay equity complaint.

50 The employer in this case equates the complainant's position that they be "classed" as CRs for the purposes of the analysis of their complaint under the CHRA as a request that the INs be retroactively classified under the employer's classification system as having occupied positions in the Clerical and Regulatory occupational group. For its part, the union argues that the complainants should be "identified" or "classed" or "found" to be equivalent to the CR group for the purposes of comparison in terms of pay equity. I find that both parties are mistaken in their assertions.

51 First, and contrary to the employer's argument, the complainants do not need to be "classified" as CRs in a retroactive manner in order for this complaint to proceed. This is supported by paragraph 18 of the Canadian Human Rights Tribunal in Public Service Alliance of Canada v. Canada (Treasury Board), (1998) 32 CHRR 349:

18. Once all the job fact information has been gathered the Commission normally establishes a job evaluation committee, usually consisting of three individuals, to perform job evaluations. If the employer has an existing job evaluation system the Commission uses s. 9 of the Guidelines to analyse that system and to determine its suitability for a pay inequity complaint. Otherwise, the Commission uses the Aiken or Hay job evaluation plan. Section 9 of the Guidelines reads:

Method of Assessment of Value

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 work conditions determined in accordance with sections 3 to 8.

[Emphasis added]

52 This statement confirms that a group of employees who are not formally classified may still constitute a class of employees for the purposes of pay equity and that the employer's failure to classify employees according to its classification system will not prevent that class of employees from proceeding with a pay equity complaint. Indeed, this quote demonstrates that a group which is appropriate for the purposes of pay equity is not necessarily determined by identifying a group that has already been identified as appropriate for the purposes of bargaining. The determination of whether or not a class of employees is appropriate for the purposes of pay equity is a factual determination which may be influenced by the employer's classification system but which is not determined by it.

53 My role in this case is to first determine whether or not the complainant group forms a class of employees or occupational group appropriate for the purposes of pay equity, and I find that it does. In coming to my determination, I have considered many things, including the history of the bargaining unit, the work performed by the members of the bargaining unit, the working conditions under which it was performed, the pay structure and the evidence regarding how it was arrived at, as well as the testimony of the witnesses.

54 The purpose of classifying positions is twofold: to allocate a position to a bargaining group, and to determine the appropriate level of pay. There is not necessarily a primacy of these purposes as either may occur first. In this case, Statistics Canada required a pay scale in order to pay Canadians hired under the Statistics Act to perform the IN function. Each year, Statistics Canada looked to the core public administration to determine the annual pay increase it would recommend be implemented for the INs. Other methods of determining appropriate annual pay increases were available to the employer, yet it chose, on an ongoing basis, to use the pay increases allocated to the group that the complainants argued was the appropriate occupational group to which to allocate the INs for the purposes of bargaining.

55 The testimony and the exhibits do not support the respondent's statement that Statistics Canada sought to determine only the level of annual increase to be paid to the public service as a whole. The evidence demonstrated that in the core public administration during the period in question, not all bargaining groups received the same level of annual increase. The documentary evidence also demonstrated that Statistics Canada specifically sought to determine what the IN group was entitled to as an annual increase. Further, according to Mr. Long, the minister of Supply and Services then recommended that the rate applied to the CR's was the appropriate rate of increase to be applied, which was then implemented through an Order in Council. Furthermore, Mr. Long's testimony that INs were never compared to the CR group is contradicted by the Interviewer Work Agreement (exhibit 1 tab 25) which clearly states that INs were to be paid according to wage scales established by TBC. To that end, the scale used was the CR salary scale.

56 In my opinion, the reason for this was Statistics Canada's recognition that INs (including SR/INs), had it not been for the working conditions applicable to this group in particular, performed duties which would have been properly classified within the CR group. In other words, if it walks like a duck and quacks like a duck, it must be a duck. This is confirmed by the fact that the INs received pay equity adjustments, under the guise of relativity payments, for the period during which the TBC was deemed the employer. It was open to Statistics Canada to classify the positions alternately, but it chose not to, lending credence to the complainant's argument that the CR classification group was appropriate for the INs. For all intents and purposes, the INs were treated as CRs by the employer for pay and pay-related purposes.

57 It is disingenuous for the employer to argue that the pay equity relativity payments were made out of the goodness of its heart. Obviously, it had concluded that the INs, with respect to duties, could be properly classified within the CR group, but at the same time realized that doing so would engender operational problems for it. This was the source of its preoccupation to ensure that collective bargaining recognized the particular needs of Statistics Canada. In fact, that recognition resulted in the SSO's creation. Although the employer's actions in authorizing these retroactive pay equity adjustments is not recognition on its part that pay equity is owed to the complainant group, it is nonetheless a factor in my decision that INs and Sr/INs constitute a class of employees for the purposes of pay equity as these payments recognize the homogeneity of the group.

58 The INs and Sr/INs all worked for the same employer, under the same job description, for a common purpose, were paid the same, subject to the same working conditions and received the relativity payments as a group. In the Bendel decision, they were determined to be a group appropriate for the purposes of bargaining. Following the creation of the SSO, they remained a distinct group and do to this day. All of this evidence leads me to conclude that they are also a group that is appropriate for the purposes of pay equity. Further, the employer has provided me with no argument to refute such a conclusion. The employer never denied that the complainant group was a relatively homogenous group with similar characteristics, working conditions and community of interest. Instead, the employer focused its arguments in trying to convince me that the group should not be retroactively classified as CRs, something which I specifically decline to do in this decision.

59 In making this determination, I am not retroactively classifying the INs at a specific classification or classification level. Statistics Canada and the TBS, by their own actions in determining the appropriate pay level for the INs based on the CR group pay levels, treated the positions as being comparable to the CR classification group for pay purposes. My determination merely prohibits the respondent from denying the impact of its actions.

60 This is not a classification question but rather a pay question, which is within the Board's jurisdiction to determine. Furthermore, a determination that the INs and Sr/INs constituted a class of employees for the purposes of pay equity does not automatically entitle those employees to pay equity adjustments. What it does entitle them to is the process of comparing their jobs to a comparator group, which group has yet to be identified, in order to determine if the level of compensation for their work was comparable to that of the comparator group. In order to get to that stage, the INs and Sr/INs must establish that they constituted a female dominated group and identify an appropriate male dominated comparator group.

61 With the Bendel decision, the question of employee status was resolved. The INs were TBC employees. The question of their allocation to a bargaining unit remained until the SSO's creation. When the INs were transferred to the SSO, they became a separate bargaining group for which the complainant was certified as the bargaining agent (see Public Service Alliance of Canada v. Statistical Survey Operations). Their terms and conditions of employment continued until a collective agreement between the certified bargaining agent and the SSO was concluded and a first collective agreement was signed.

62 One of the terms and conditions of employment, which were frozen by the application for certification, was the INs' classification for pay purposes and rate of pay. Therefore, for the period commencing with the Bendel decision until a new collective agreement was concluded, the INs continued to be paid as CRs for pay purposes. Once the INs became employed by a separate employer, an internal relativity study was required for the purposes of determining whether a pay equity issue existed. That study had to be conducted within the walls of that organization and not within the core public administration as a whole.

63 The respondent also argued laches (undue delay in pursuing a legal claim). It also indirectly argued that the doctrine of estoppel applied (a legal rule that prevents somebody from stating a position inconsistent with one previously stated, especially when the earlier representation has been relied upon by others) by arguing that the complainant agreed that the SSO's creation would resolve the question of allocating the INs to a bargaining group that was raised by the Bendel decision. I have insufficient evidence before me to make a ruling on those arguments. Therefore, they should form part of the argument on the merits of this application.

64 For these reasons, I conclude that for the period from 1985 to the SSO's creation, the INs fell within a class of employees or occupational group that is appropriate for the purposes of pay equity and that this complaint should be heard on its merits.

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

V. Order

66 The Board has jurisdiction to hear this complaint on its merits.

67 The matter will be referred to the Board's Registry Operations for scheduling.

September 17, 2014.

Margaret T.A. Shannon,
a panel of the Public Service
Labour Relations Board