Trade union need not be involved in negotiating pay equity maintenance: Divisional Court

Maintaining pay equity not a shared responsibility, court said

Trade union need not be involved in negotiating pay equity maintenance: Divisional Court

The Ontario Divisional Court has affirmed a ruling by a tribunal that an employer was not obliged to negotiate with a trade union to maintain pay equity.

In Ontario Nurses’ Association v. 10 Community Care Access Centres, 2021 ONSC 5348, the applicant, a trade union, represented registered nurses and other healthcare professionals employed by the respondents, a group of 10 employers. It filed complaints before the Review Services Unit of Pay Equity Office, contending that the respondents had failed to maintain pay equity.

The review officer found that the respondents had not maintained pay equity and in furtherance of maintaining pay equity, were not required to negotiate with the applicant. On review, the Pay Equity Hearings Tribunal concluded that based on the interpretation of the Pay Equity Act, RSO 1990, c P.7, the provisions on maintenance of pay equity specifically pertained to the term “employer,” none to the “bargaining agent.”

 In its application for judicial review, the applicant contended that the Pay Equity Hearings Tribunal erred in concluding that the maintenance of pay equity was the responsibility of respondents alone. 

In its decision, the Divisional Court held that the ruling of the Pay Equity Hearings Tribunal was reasonable. The court determined that the Pay Equity Hearings Tribunal properly interpreted the Pay Equity Act as regards the responsibility for maintaining pay equity.

Section 7(1) of the Pay Equity Act provides that every employer shall establish and maintain compensation practices providing for pay equity. Evidently, the responsibility of maintaining pay equity lies with the employer and not the union, the court stressed.

The applicant contended that the interpretation of s. 7(1) was unreasonable given that it was considered in isolation, without reference to s. 7(2). The court disagreed.

“The bargaining referred to in s. 7(2) is not the process of establishing or maintaining pay equity. The reference is to the process of collectively bargaining compensation practices in the collective agreement which is or will be the foundation of the relationship between the employer and the union,” the court explained.

The court also determined that the Pay Equity Act has pertinent provisions contemplating negotiations between employers and trade unions on identifiable issues. However, the provisions made no specific reference to negotiations respecting the maintenance of pay equity, the court stated.

“Maintaining pay equity is not a shared responsibility. The [trade union] has a role to play but it is collateral not collaborative,” the court reiterated.

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