The default presumption under the federal Pay Equity Act (the “Act”) is that an employer will establish a single pay equity plan. This presumption can be rebutted, and the Pay Equity Commission may grant an employer’s application to establish multiple pay equity plans under specific circumstances. The Pay Equity Commissioner has released several decisions addressing the establishment of multiple pay equity plans, and most recently granted the Ottawa Macdonald-Cartier International Airport Authority (the “Authority”)’s application under section 30 of the Act. The Authority was represented by Emond Harnden’s Lauren Jamieson.
Background
The Authority employs approximately 255 employees, of which 80% are unionized and represented by two bargaining agents: the Public Service Alliance of Canada (PSAC), and the Ottawa Airport Professional Aviation Firefighters Association (OAPAFFA). The remaining 20% of the Authority’s workforce is made up of a management group that includes employees at the manager, director, and executive level, as well as excluded employees who perform confidential industrial relations functions. The Authority proposed to establish two plans:
- Plan 1: PSAC employees (192) and Management Group employees (42)
- Plan 2: OAPAFFA employees (21)
While all affected parties were invited to provide representations on the application for multiple plans, only PSAC responded. PSAC opposed the Authority’s multiple plan request arguing that they would limit the scope of predominantly male job classes available for meaningful pay equity comparisons in proposed Plan 1, and that they would isolate a group of highly paid male job classes (firefighters) in a distinct pay equity plan thereby limiting comparisons with lower-paid clerical, administrative, and professional female job classes.
The Applicable Test
The test for the establishment of multiple pay equity plans is as follows:
- 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.
- Is it appropriate in the circumstances to grant the application?
Enough Male Comparators
The Commissioner found that the Authority’s preliminary data demonstrated that there were enough male comparators in each of its proposed plans such that it would not be impossible to complete the comparison of compensation.
Approximately 90% of its workforce would be included in Plan 1. The Authority estimated that this plan would have 31 female predominant job classes, 66 male predominant job classes, and 6 neutral job classes. Plan 2 would contain the remaining 10% of its workforce and would have 3 job classes, all of which are estimated to be male predominant.
As such, the threshold question had been satisfied and the analysis turned to whether it was appropriate in the circumstances to grant the Authority’s application.
Appropriate in the Circumstances
Section 107 of the Act gives the Commissioner the discretion to decide whether or not to approve an application for multiple plans.
The Authority submitted that its firefighters should not be included in Plan 1 because of the unique nature of how their compensation is determined. The OAPAFFA collective agreement provides for salary parity with the firefighters and captains of the Ottawa Fire Services, originally awarded at interest arbitration. The Commissioner accepted that as a result of the incorporation of salary parity language into the Authority and the OAPAFFA’s collective agreement following the arbitration award, the Authority’s firefighters’ pay is determined by a mechanism outside of the Authority’s compensation practices and system. Effectively, when it comes to its firefighters, the Authority is bound not by its own compensation practices but by those of the City of Ottawa.
Therefore, including the Authority’s firefighters in a single plan with its other employees presents the risk that female job classes could see adjustments that are not the result of gender-based, pay discrimination in the Authority’s compensation practices and system, which would not be in keeping with the objectives of the Act.
PSAC argued that Plan 2 could not be considered a “true plan” since there are no female job classes within it to compare to the male ones. The Commissioner rejected this argument noting that approximately 10% of the Authority’s workforce—the firefighters and captains in Plan 2—would be excluded from the pay equity exercise, as long as the gender predominance of the job classes in that plan remains male. The remaining 90% of the Authority’s workforce would be in Plan 1. The Commissioner further noted that the male job classes in Plan 1 included not only male dominated technical, trades and professional roles, but also the highest paid executives up to and including the President and CEO. Thus, the Commissioner was comfortable that the objectives of the Act would be fulfilled.
In Our View
This is one of few decisions where we have seen the Commission grant an application under section 30 of the Act for the establishment of multiple pay equity plans (see our previous Focus Alert: Federal Pay Equity Commissioner Allows Establishment of Multiple Pay Equity Plans at NAV CANADA). While a single plan continues to be the operational presumption, and this most recent decision of the Commission exemplifies that if the threshold question is met and circumstances permit, applications for multiple pay equity plans may be granted. This decision also highlights that multiple pay equity plans may be granted even if one of the pay equity plans does not contain female job classes within it.
PSAC also argued that the application should be denied because it was filed close to the time that the draft pay equity plan should have been posted. In dismissing this argument, the Commissioner noted that neither the Act nor the Pay Equity Regulations set a time limit for filing an application for multiple plans.
For more information, please contact Lauren Jamieson at 613-404-5058.
