Federal Pay Equity Commissioner Allows Establishment of Multiple Pay Equity Plans at NAV CANADA

The federal Pay Equity Act presumes that an employer will establish a single pay equity plan for its employees, but allows a party to apply to establish multiple plans.  The Pay Equity Commissioner has released several decisions addressing such applications, including the December 13, 2023 decision in NAV CANADA (Re), 2023 PEC 8 (CanLII).  In that case, in which NAV CANADA was advised by Emond Harnden’s Raquel Chisholm, the Commissioner permitted NAV CANADA (the “Employer”) to establish two separate pay equity plans.

Background

The Employer applied to the Commissioner to establish three pay equity plans for the following groups:

  • Plan 1: A group made up of 47.4% of the Employer’s workforce, and which included seven of the Employer’s eight bargaining units, as well as “non-unionized employees” (as defined by the Pay Equity Act and so excluding managers, directors, and senior executives);
  • Plan 2: All employees belonging to the Canadian Air Traffic Control Association, which represents Air Traffic Controllers (“ATCs”); and
  • Plan 3: Managers, directors, and senior executives.

All of the bargaining agents opposed the application.

The Applicable Test

The test for the establishment of multiple pay equity plans is as follows:

  1. Are there enough male comparators in each of the proposed plans?  This is a threshold question.  If there are not enough male comparators in one or more of the proposed plans, the Commissioner will be required to deny an application for multiple plans.
  2. Is it appropriate in the circumstances to grant the application?

Enough Male Comparators

In this case, the Commissioner found that there were enough male comparators in each of the three proposed plans to allow for the comparison of compensation.  The Commissioner specifically noted that the male comparators in Plans 1 and 3 spanned a range of classification levels and pay, and all of the job classes in Plan 2 were male.

Appropriate in the Circumstances

The Commissioner granted NAV CANADA’s request for a separate plan for the CATCA bargaining unit. The Employer successfully argued that complexity was a factor that could justify more than one pay equity plan, particularly with respect to the CATCA-only Plan 2. 

In this case, it was not the technical complexity of the ATC job itself that was relevant, but the complexity of the ATC job evaluation and classification system, which had been established by the Employer and the bargaining agent over many years.  While Unifor argued that it was not impossible to compare ATC compensation to that of the job classes in Plan 1, the Commissioner found that this complexity would create “exceptional challenges for the pay equity committee to overcome.” These “exceptional” challenges were “not proportionate or justified,” since Plan 1 included “numerous [male] comparators covering a wide range of skill, responsibility, effort and working conditions as well as a broad range of compensation levels.”  The objectives of the Act would be fulfilled even if ATCs had a separate plan.

The Commissioner found that it was not appropriate in the circumstances to establish a separate plan for managers, directors, and senior executives.  These employees therefore remained in Plan 1.  In the Commissioner’s view, including senior management in the same pay equity plan as lower-rated, predominantly female jobs did not inevitably pose a barrier to identifying and eliminating wage gaps for lower paid female jobs so as to require separate plans. 

The Commissioner also found that comparing the predominantly female job classes at the senior management level to the full range of predominantly male professional, scientific, and technical jobs in Plan 1 would best advance the objectives of the Act.  Additionally, the fact that managers, directors, and senior executives had an existing gender-neutral, point-factor job evaluation tool which had allowed the group to achieve pay equity under the Canadian Human Rights Act was not sufficient to justify granting a separate plan.

In Our View

This decision again demonstrates that multiple plans are exceptional under the Pay Equity Act.  However, it also provides an example of circumstances which the Pay Equity Commissioner considered to be appropriate for the establishment of multiple plans.

For more information, please contact Raquel Chisholm at 613-698-5892.

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