No. 37 July 13, 1999
No agreement on implementation one year after tribunal decision: Union asks for Tribunal to be reconvened
It has been almost one year since the Canadian Human Rights Tribunal issued its decision in the Alliance’s pay equity complaint against the federal government and we are not close to an agreement with Treasury Board. As a result, the Alliance’s lawyer has just written to the Tribunal Registrar asking that the Tribunal be reconvened and that blocks of dates for hearings be set aside in the event that the parties have not reached an agreement by the end of July. We will be asking that hearings be set up at the earliest possible dates and that the process be expedited, given the history of this complaint. While the Alliance is prepared to continue meeting with Treasury Board, the union is not prepared to contribute to the delay in implementing the Tribunal decision.
How did we get to this stage?
In its decision, the Tribunal said that the actual wage adjustment for the levels and sub-groups within each occupational group was to be determined by mutual agreement between the Alliance and the government, as long as it did not exceed the total pot of money calculated for each group. It went on to say that the parties would have one year from the date of the decision to agree upon the distribution of the payout. If the parties couldn’t agree, the Tribunal could be reconvened to deal with the outstanding issues.
For the past year, the Alliance has been making every attempt to discuss the implementation of the Tribunal decision with Treasury Board. Back on September 22, 1998, the union held its first meeting with Treasury Board representatives. In early October, the Alliance asked Treasury Board to put forward their position. Later in October, Alain Jolicoeur, the Chief Human Resources Officer, stated that the Treasury Board position was limited to discussing and coming to an agreement on the total pot of money, not the distribution of the total pot by level.
For the next several months, correspondence went back and forth between PSAC President Daryl Bean and Treasury Board’s Jolicoeur regarding calculations of the wage pay outs, interest and a number of technical questions. Information came from Treasury Board in bits and pieces. After the Alliance proposed meeting dates in April, Treasury Board agreed to meet in May.
The parties met on May 4 and while Treasury Board stated their objective was to determine the pay equity "pot" before July 29, they were clear they were not there to agree on actual payments. The Alliance’s objective for these meetings has been to achieve full implementation. In May a number of technical meetings took place dealing with issues such as interest, the calculation of the population of current and former employees involved, and the HS group. Treasury Board was asked to provide a position on all outstanding issues by the end of June. The parties met again on June 25 and Treasury Board indicated that it would provide more information on their calculations, assumptions and numbers but not until later in July.
What are the outstanding issues?
The agreement reached between the Alliance and Treasury Board has been mainly in areas where the Tribunal decision is clear and not controversial. The parties are still far apart on the major issues. Some of these issues include the following.
Methodology
Negative Amounts: There are a few levels in female-dominated groups where the existing salaries are higher than what the tribunal methodology would provide. Both Treasury Board and the Alliance agree that employees at these levels should not have to pay back these "overpayments" or have their salaries reduced.
Where there is disagreement, however, is that Treasury Board wants to deduct the extra amounts which it has voluntarily paid to these levels before 1997 from the amounts it owes to other levels. The Alliance believes that this is not fair and is supported in this by the testimony of the Head of Pay Equity at the Canadian Human Rights Commission.
Regional rates, weighting of male jobs: There are differences in opinion about these two issues. If Treasury Board were serious about reaching an agreement, we’re sure these could be resolved.
Conversions: Some groups were converted to new classification standards during the retroactive period. There are differences in opinion on how these conversions should be dealt with. Once again, if Treasury Board were serious, we’re sure these could be resolved.
Interest
Treasury Board only wants to credit interest at the end of six month periods, not as it is earned. They also want to use only the lowest possible interest rate in those years in which a variety of rates applied to Canada Savings Bonds (CSBs). We believe that interest should be credited as it is earned, at the most representative rate in each year, that is the rate applied to the largest number of CSBs in a given year.
Hospital Services (HS) Group
Treasury Board is trying to do something different with this group than the other female-dominated groups although all were treated equally in the 1998 Tribunal decision.
Distribution
Treasury Board has been reluctant to do what the Tribunal ordered which is to come to an agreement on how the total amount of money owed will be divided up among the various levels based on the equal pay study results.
Why go back to the Tribunal?
The Tribunal’s order to the parties to come to an agreement on the distribution of the money owed was based on an assumption that the parties would actually want to implement the decision. This assumption was misplaced. Agreements are only possible when both parties are prepared to take the process seriously and to actually reach conclusions. Compromise is possible, but only when both parties are prepared to be reasonable.
Treasury Board has done what it must in order to appear to be discussing the matter in accordance with the Tribunal orders. However, their position before the Federal Court is that no money is owed. And, the bottom line is that even if they are prepared to discuss the payout, interest and other outstanding issues, they’ve given every indication that they have no intention of paying anytime soon. The government is obviously waiting for the decision to be rendered on their appeal.
The payout of retroactivity and interest requires agreement on the calculation of the impact of the adjustments on such items as overtime, acting pay, maternity leave, etc. The Alliance believes that agreement can be reached on this issue without having to return to the Tribunal but Treasury Board is stonewalling.
In its 1998 decision, the Tribunal made reference to a Phase III set of hearings which could look at this issue. Therefore, in asking the Tribunal to reconvene to settle the outstanding issues from decision, we have also asked them to deal with this issue as well. given that an agreement with Treasury Board is unlikely. The Alliance will ask the Tribunal to make a final decision on all the outstanding issues, such as specifying the amount to be paid to each level, precisely what interest rates will be used, etc.
Can’t the union go to court to have the Tribunal’s decision enforced?
The Tribunal’s decision ordered the parties to agree on the calculations. No amounts can be paid - or ordered - until the calculations are in place. There are two ways to achieve this. The parties can either come to an agreement on the calculations, including the distribution of amounts among the levels - which is unlikely to happen - or the Tribunal can be reconvened to make a determination on the issues on which the parties cannot agree.
How long with the Tribunal take this time to hear the parties and issue a decision?
Unfortunately, there is no way of telling. There are three parties involved - the Alliance, the Canadian Human Rights Commission and the government. Therefore, we can’t control the time it will take. If it wants to, the government can try to delay the process. However, the union is asking for early dates and will ask the Tribunal to speed up the hearings.
Can’t the government just appeal another decision by the Tribunal?
Yes, any of the parties have the right to appeal the decision. However, asking the Tribunal to resolve the outstanding issues moves the process forward.
Why not take the money that was offered earlier?
Any money the government had offered before the Tribunal decision was issued is well below what is actually owed as a result of the decision. Treasury Board has given no indication that they are prepared to pay the retroactive pay equity and interest payments owed or anything else at this time.
When can we expect the decision on the government’s appeal?
The appeal hearings in the Federal Court (Trial Division) took place from May 31 to June 10 with Justice John Evans hearing the case. [Note: The union’s daily reports of the hearings are available from the PSAC’s regional offices and on the union’s web site - www.psac-afpc.com.] At the close of the hearings, Justice Evans indicated that he understood the importance of the case and its impact and intends to do it justice. He also indicated that his workload continues over the summer months. There is no formal deadline for the decision to be issued. Given the judge’s remarks, it seems likely the decision will not be issued until sometime late in the fall, at the earliest.
What happens then?
Once this decision is issued, it can also be appealed to the Federal Court of Appeal. All parties have 30 days in which to file an appeal. However, if the decision goes against the federal government, the union will renew its pressure on the government to live up to its legal obligations and stop wasting taxpayers dollars dragging the issue through the courts.
Good news from the Supreme Court
On July 8, the Supreme Court announced that it had dismissed Bell Canada’s request to appeal a decision made by the Federal Court of Appeal in November 1998. The Federal Court of Appeal had overturned in its entirety an earlier decision by Justice Muldoon in a pay equity case involving Bell Canada and the union representing its telephone operators. The Federal Court of Appeal’s decision made it clear that Human Rights Tribunals are the legitimate bodies to make decisions about pay equity complaints and that there can be more than one methodology used to close a wage gap. Now that the Supreme Court has refused to hear Bell’s appeal, the government has lost one more argument for delaying implementation of the Tribunal’s decision in our federal complaint.