Proxy Pay Equity Saga Continues: Opportunity For Intervention On Procedure Announced

Pay Equity for employers subject to Proxy Pay Equity has been in flux for almost a decade.  A recent decision of the Pay Equity Hearings Tribunal (PEHT) indicates that we will soon have direction on how employers who achieved pay equity through the proxy method ought to be maintaining pay equity.  Importantly, on May 19, 2023 the PEHT issued a decision (not yet publicly available) that will open up an opportunity for members of the public to apply for intervenor status and ensure that their interests are considered by the PEHT on this issue.

Background of this Case

In Glen Hill Terrace Christian Homes Inc. (the “Employer”) v Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110 (“CUPE”) (“Glen Hill Terrace”) the Employer has sought an order that the proceedings brought against it by CUPE in relation to pay equity maintenance be stayed pending the outcome of another matter.  Specifically, the Employer has pointed to the Ontario Court of Appeal (ONCA) decision in Participating Nursing Homes, 2021 ONCA 148 (CanLII), in which the PEHT was directed to provide direction to “specify what procedures should be used to ensure that those employees, represented by the Unions, who have established pay equity through the proxy method, will continue to have access to male comparators to maintain pay equity”.  The PEHT has not issued such procedures leaving all employers who achieved pay equity through the proxy method in a state of limbo.

The PEHT has now indicated that it is not appropriate to wait for the outcome in the ONA v. Participating Nursing Homes case and that the PEHT would move forward with a decision in Glen Hill Terrace on how maintenance should be conducted.

The Update

On May 19, 2023, the PEHT directed that the issue of how employers who achieved pay equity through the proxy method is a matter of public interest and as such the PEHT will be opening up the opportunity for members of the public to seek intervenor status.  Stakeholders wishing to apply for intervenor standing must do so by July 7, 2023, and the Union and Employer can file objections to the intervenors proposed until August 7, 2023. After this date, the Tribunal will consider the requests and objections and set out the next steps of the process.

Impact on Disability Service Agencies

The matter of pay equity maintenance for employers who achieved pay equity using the proxy method will have a significant impact for agencies in the disability and developmental services sector.  The vast majority of employers in these sectors were subject to proxy orders.  Many have spent the last 28 years making incremental 1% of payroll per year payments towards achieving pay equity.  Historically, the wisdom was that once you achieved that milestone, you could simply maintain pay equity by ensuring that no new internal wage gaps emerged by intermittent review of job values etc. Now, however, the jurisprudence means that these employers will have to maintain pay equity by reference to another employer that does have internal male dominated job classes.

This raises a number of important questions with significant implications for agencies in the developmental services sector:

        • Will employers have to refer back to the hospitals that were their original comparators or can employers now compare to in-sector comparators instead?
        • Will employers be permitted to consider new male dominated job classes within their own organization even if they were once subject to a proxy order?
        • What if their original proxy comparator no longer exists?
        • What does this mean for employers who achieved pay equity in 2000?
        • Will retroacting adjustments be required?
        • What will this mean for non-union employers, or non-union groups of employees within unionized environments?

Whether pay equity was achieved decades ago or has only just recently been achieved with the receipt of Permanent Compensation Enhancement, this decision is going to shake up pay equity and compensation more broadly in our sector with a direct impact on funding needs.

Intervenor standing presents an opportunity to ensure the interim impact of these changes on organization in the disability and developmental sectors are taken into consideration. Advocacy and representation at each stage of this process will be vital to ensuring our sector specific interests are considered.

PooranLaw will continue to monitor the ongoing legal developments related to pay equity. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.