No. 33 November 17, 1998

FEDERAL COURT OF APPEAL OVERTURNS MULDOON DECISION

The Federal Court of Appeal has overturned the decision of Justice Francis Muldoon in the pay equity case involving the Communications, Energy and Paperworkers’ Union (CEP) and Bell Canada in its entirety.

In his decision issued in March 1998, Justice Muldoon had agreed with most of Bell Canada’s arguments that a Canadian Human Rights Tribunal established to hear CEP’s pay equity complaint on behalf of Bell Canada telephone operators should not proceed. CEP appealed his decision. From October 13 to 16, 1998, the Federal Court of Appeal heard arguments from both CEP and Bell Canada.

Treasury Board President Marcel Massé, Justice Minister Anne McLellan and the federal government have continued to use the Muldoon decision as a key factor in their decision to appeal the July 29^th Human Rights Tribunal decision in our case against the government. They have claimed on many occasions that our Tribunal decision and the Muldoon decision represent conflicting methodologies and that one of the main reasons for their appeal is to clarify the situation.

Methodology was never really an issue in the Bell case. No evidence or arguments were presented to Muldoon about methodology. Nor did the parties deal with the validity of the CHRA Equal Wages Guidelines which are binding on Tribunals hearing pay equity complaints. In spite of the lack of evidence presented before him, Muldoon included a comment in his decision that a direct job-to-job comparison was the only methodology according to the Act. Following this decision, Treasury Board suddenly embraced the job-to-job methodology, claiming it as their own. In fact their presentations before the Tribunal had nothing to do with job-to-job comparisons. And, subsequent statements by Massé that job-to-job comparisons would result in a much smaller wage gap are just so much hot air. The government has no evidence on which to base this claim because the joint equal pay study was not conducted in a way that gathered information to make job-to-job comparisons.

The Federal Court of Appeal in overturning Muldoon has essentially reiterated the decision rendered by Justice Joyal back in 1991 when the federal government was attempting to stop the work of the Tribunal established to hear our case. Justice Joyal stated that the Human Rights Tribunals were the properly constituted bodies to hear and render decisions in pay equity complaints. His decision was subsequently upheld by the Federal Court of Appeal.

While Bell Canada may seek leave to appeal to the Supreme Court, there is no guarantee that they will be allowed to do so. The appeal filed by the federal government in our case will be heard during a two week period starting on May 31, 1999. In the meantime, there are now two Federal Court of Appeal decisions which support Tribunals as the proper place to deal with pay equity complaints.

So why is the government continuing with its appeal? The government seems determined to drag this out for as long as possible in an attempt to avoid paying the large amounts of retroactive pay and interest which are owed. And, the interest bill keeps mounting. Their reluctance to accept the Tribunal decision also continues to set a bad example for other employers like Bell Canada who, instead of correcting identified wage gaps, prefer to spend hundreds of thousands of dollars on lawyers’ fees.

The Federal Court of Appeal’s decision is a clear signal to the federal government to stop the delays and get on with implementing the Tribunal decision. There is no one methodology spelled out in either the Canadian Human Rights Act or in the Equal Wages Guidelines. However, to be acceptable, any methodology must close the wage gap which has been identified.

The Alliance, together with our current and former members and our many supporters will continue to put pressure on the federal government to withdraw its appeal. By sitting down as soon as possible with the union and carrying out the Tribunal Orders, a long-standing injustice can finally be rectified.

The Federal Court of Appeal’s decision should also be good news for Alliance members employed by the Government of the Northwest Territories and by Canada Post. With the overturning of the Muldoon decision, there is no reason why the Tribunal established to hear the GNWT case can’t proceed and no reason for further delays in the Canada Post Tribunal hearings.

As part of the tentative agreement at Table 1, members in the CR, EU and ST Groups and the DA-CON sub-group are to receive special pay adjustments. While this will put some money in our members’ hands, it is still only a downpayment. The government remains liable for retroactive pay equity payments, interest and ongoing adjustments based on the methodology approved by the Tribunal. In its original offer at Table 1 back in September, interim payments were also outlined for the HS and LS Groups. Any discussion of these payments will take place at Tables 2 and 5 respectively.