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Disclaimer: This Guide gives an overview of the minimum requirements of the Pay Equity Act as interpreted by the Pay Equity Office. The interpretations are drawn from our own experiences and by applying the key rulings of the Pay Equity Hearings Tribunal and the courts and is current to the date of publication.
Part IV of the Act sets out processes for making complaints and resolving disputes that may arise as pay equity is being implemented or maintained.
What is the timeframe for making a complaint?
There are no time limits. A complaint can be made for any period during which the Act has been in effect.
Who can make a complaint?
A complaint can be made by:
- any employer
- any employee (including former employees)
- any group of employees
- any bargaining agent representing the employee or group of employees in a female job class [22. (1)]
Can an employee represented by a union make a pay equity complaint?
The Act recognizes that the bargaining agent represents its members with respect to pay equity issues in the workplace. Individuals in female job classes who are represented by a bargaining agent do not have any role in the pay equity process. Represented employees do not have the right to object to a pay equity plan before it becomes "deemed approved" (for non-unionized employees, an objection period is granted through [15. (7)] of the Act). A pay equity plan that is negotiated between the employer and bargaining agent and signed by both parties becomes "deemed approved" on all employees covered by the plan once it is posted by the employer
Deemed approved plans may become the subject of a complaint brought by a represented employee. The Tribunal has recognized that that employers and unions cannot ignore their obligations under the Act with impunity. Where a member of a bargaining unit in a female job class makes a complaint under , he/she must be able to demonstrate that the deemed approved plan does not meet the minimum standards of the Act as set out in Part I. Examples of the type of contravention that might be brought forward by a represented employee include: the plan did not determine its female and male job classes, the legislated criteria of skill, effort, responsibility and working conditions were not considered when the job classes were valued, the plan did not use the appropriate job rates for the female job class or comparable male job class(es) when making comparisons.
However, if the pay equity plan did value the job classes using skill, effort, responsibility and working conditions, then the represented employee in his/her complaint must show that the valuation was unreasonable. In these situations, the Tribunal has indicated that deference must be given to the negotiating parties, because many aspects of achieving pay equity are not capable of absolute determination and there are acceptable ranges of outcomes in the valuation process Houston v. Centennial College 2002 CanLII 49436(ON PEHT), Group of Employees v. Ontario (Management Board Secretariat), 1999 CanLII 14827 (ON PEHT), Monro v.Ottawa Heart Institute 2004 CanLII 60148 (ON PEHT)).
How does the
Pay Equity Act protect employees who make pay equity complaints?
Employers are not allowed to penalize employees in any way for being involved in or asking questions about pay equity processes, objecting to pay equity plans, or otherwise exercising their rights to pay equity.
[9. (2)] No employer, employee or bargaining agent and no one acting on behalf of an employer, employee or bargaining agent shall intimidate, coerce or penalize, or discriminate against, a person:
- because the person may participate, or is participating, in a proceeding under this Act;
- because the person has made, or may make, a disclosure required in a proceeding under this Act;
- because the person is exercising, or may exercise, any right under this Act; or
- because the person has acted or may act in compliance with this Act, the regulations or an order made under this Act or has sought or may seek the enforcement of this Act, the regulations or an order made under this Act.
In cases where the complaint claims that he/she was penalized for exercising his/her pay equity rights, the complainant must show that he/she was actually engaged in an activity outlined in [9. (2)] and that he/she experienced some form of punishment by the respondent. To find a contravention of [9. (2)], the Review Officer must decide based his or her investigation of the facts that the employer's actions fell within the behaviours prohibited by the provision (Clow v. Peterborough (City), 1996 CanLII 8060 (ONPEHT).Clow v. Peterborough (City), 1996 CanLII 8060
What are reasons for filing a complaint under the Pay Equity Act?
Applicants can file a complaint about a contravention of the Act, regulations or order of the Commission. Some examples of violations include:
- Pay equity was not implemented or achieved for female job classes in the establishment [7. (1)].
- Pay equity has not been maintained in the establishment [7. (1)].
- Compensation to a male job class was reduced to achieve pay equity [9. (1)].
- An employee has been fired, coerced, penalized, or harassed because of pay equity [9. (2)].
Concerning pay equity plans, complaints can be made because:
- A pay equity plan was not prepared or posted by a Part II employer [13, 21.18, 21.4].
- The posted pay equity plan does not meet the minimum standards set out in Part I of the Act.
- A union and employer fail to agree to a pay equity plan or fail to agree to amendments to a plan required because of changed circumstances or sale of business [14. (5)].
- A non-unionized employee objects to a posted pay equity plan or amendments within the objection period [16. (4)].
- There have been changes in the workplace such that the pay equity plan is no longer appropriate for the female job class to which the employee or group of employees belongs [22. (2) (b)].
- The plan is not being implemented according to its terms [22. (2) (a)].
What happens in the application process?
Applicants must complete, sign and submit an Application for Review Services to the Pay Equity Office to start the process. Once the Office receives the application, the applicant will be notified that his or her application has been received. The applicant may be asked to provide further information to clarify the nature of the complaint. Failure to respond to requests for information may delay the assignment of the file for investigation.
What is the role of a Review Officer?
Review Officers are employees of the Pay Equity Office who have powers under the Act to investigate complaints, attempt to settle disputes about pay equity and make orders for compliance. Review Officers also monitor the preparation of pay equity plans [24.1, 34, 35]. The Review Officer is neutral: he/she represents neither the applicant nor the respondent.
Review officers shall monitor the preparation and implementation of pay equity plans, shall investigate objections and complaints filed with the Commission, may attempt to effect settlements and shall take such other action as is set out in this Act or in an order of the Hearings Tribunal [34. (2)].
[34. (3)] A review officer, for the purpose of carrying out his or her duties:
- may enter any place at any reasonable time;
- may request the production for inspection of documents or things that may be relevant to the carrying out of the duties;
- upon giving a receipt therefore, may remove from a place documents or things produced pursuant to a request under clause (b) for the purpose of making copies or extracts and shall promptly return them to the person who produced them;
- may question a person on matters that are or may be relevant to the carrying out of the duties subject to the person's right to have counsel or some other representative present during the examination; and
- may provide in an order made under subsection 16 (2) or 24 (1) that any job class is a female job class or a male job class.
What are the possible outcomes of investigations?
- The Review Officer may try to bring about a settlement between the parties [23. (1)]. Settlement efforts generally proceed only after the Review Officer determines that the issue is one that is within the authority of the Act to address.
- The Review Officer may issue an order on the outstanding issue(s) if the Officer believes based on his or her investigation that a contravention has occurred [24, 16. (2)]. An order generally sets out steps that the employer, and union if necessary, must take to comply with the law. An order is binding on the parties named in it. The terms can be varied or revoked as a result of either party requesting a hearing at the Pay Equity Hearings Tribunal.
- The Review Officer may issue a "Notice of Decision" in situations where the Officer finds no violation of the Act [23. (2)], or the complaint is not within the within the jurisdiction of the Commission, or because subject of the complaint is trivial, frivolous, vexatious or made in bad faith [23. (3)].
What happens when an employer or union complain about changed circumstances?
The Review Officer will investigate the substance of the claim. Settlement efforts will be undertaken once it has been determined that there is a legislative basis for the complaint. If the Review Officer is of the opinion that no changed circumstances exist that render a plan inappropriate for the establishment or bargaining unit, the parties will be so informed of this decision and the Review Officer will in most cases conclude his/her involvement.
What happens when the complaint is that pay equity is not being maintained?
The Review Officer's initial investigation will focus on determining whether the employer's current administration of compensation practices shows a pay equity gap between female job classes and male job classes. The Review Officer may also make inquiries as to whether the organization has a formal or informal system in place to ensure that changes to the job classes are assessed for pay equity consequences. If pay equity gaps are found, the Review Officer may make such orders as are necessary to ensure that the employer has adequately maintained pay equity.
What happens when the complaint is about the preparation of a pay equity plan?
- If the complaint is about an objection to a pay equity plan in non-unionized workplace, a Review Officer will be appointed to investigate to determine if the objection is valid and whether the objection has been filed within the appropriate time frame. If there is a basis for the objection, the Review Officer may help the parties to reach a settlement. If the parties are unable to settle, the Review Officer will issue an order under [16. (2)]. A plan that reflects the settlement or order must be posted in the workplace [16. (3)].
- If any employee covered by the plan objects to the plan that reflects the order, they have 30 days to request a hearing before the Tribunal. Similarly, any employee not party
- If the 30-day period following the re-posting passes without objections being filed with the Commission, the plan is deemed approved by the Commission and must be implemented by the employer according to its terms [16. (5)].
to a settlement may request a Tribunal hearing within 30 days of the posting of a plan that reflects a settlement reached with other employees [16. (4)].
- If the complaint is about a failure to agree to a plan the Review Officer will first determine if it is an appropriate situation for there to be negotiations. If it is a situation where negotiation between the employer and the bargaining agent is required, for instance a Part II employer and its then existing bargaining agent never negotiated a pay equity plan, the Review Officer will provide such assistance as may be necessary to help the parties arrive at a plan.
- If the complaint is about a failure to agree to amendments to a deemed approved plan in a unionized workplace, a Review Officer will be appointed to investigate whether an amended plan is necessary and may help the parties to reach a settlement. Where the parties are unable to reach an agreement on a plan, the Officer may issue such Orders as are necessary to resolve the matters in dispute under [24. (1)] in order to allow negotiations to continue. The Review Officer may monitor the continued efforts of the parties until a plan is completed.
- Alternatively, the Review Officer may order on all the remaining issues and provide a completed plan to the parties. This type of order is issued under [16. (2)]. The employer must post a copy of the plan that reflects the settlement or order. Review Officers may also notify the parties and the Hearings Tribunal that an order will not be made, or he/she may notify the complainant of a decision not to consider the complaint under the grounds listed in [23. (3)].
How does someone make anonymous complaints?
If a complainant does not wish to have the employer know his/her identity, the employee or group of employees making the complaint must arrange for an individual to act as their representative. This person represents the complainant during the process and his/her name will be made known to the employer. Anonymous applications cannot proceed until the Office receives written confirmation of the appointed representative and his/her contact information and consent [32. (3)–(5)].
How does someone get a hearing before the Tribunal?
If the parties fail to act on an order, the Review Officer may refer the matter to the Tribunal for enforcement [24. (5)]. Also, any party objecting to a Review Officer's Order or Notice of Decision may request a hearing before the Tribunal regarding the issue(s) in dispute [23. (4), 24. (6)].
In some cases, the parties may access the Tribunal directly where a Review Officer is unable to effect a settlement and has not issued an Order or a Notice of Decision.
Are there offences and fines for failing to comply with the Act?
The Act describes offences and penalties for anyone who:
- Prevents a Review Officer from exercising his or her duties [35. (5)].
- Violates [9. (2)] by intimidating a person who is exercising their rights to pay equity.
- Fails to comply with an order of the Hearings Tribunal [25. (2)].
- Breaks confidentiality of information provided under the proxy method [21.17 (7)].
If convicted of the above offences, the guilty party can be fined up to $5,000 in the case of an individual, or $50,000 in any other case .
If a corporation or bargaining agent commits the above offences, any of its officers, officials or agents who authorize, permit or acquiesce in the contravention is a party to and guilty of the offences. They are subject to the penalty regardless of whether the corporation or bargaining agent has been prosecuted or convicted [26. (2)].
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