On December 13, 2023, the federal Pay Equity Commissioner (the “Commissioner”) authorized NAV CANADA to establish two pay equity plans, despite unanimous opposition from the affected unions. Establishing multiple plans is an exception to the presumption under section 12 of the Pay Equity Act (the “Act”) in favour of an employer creating a single pay equity plan for its entire workforce. This decision is significant as it is one of the first decisions approving, in part, an application for multiple pay equity plans.

In NAV CANADA (Re), 2023 PEC 8, NAV CANADA filed an application to establish multiple pay equity plans under section 30 of the Act. Section 30 provides that the Commissioner cannot authorize an application for multiple pay equity plans if they are of the opinion that it would not be possible for the employer to identify enough predominantly male job classes for a comparison of compensation to be made in respect of each of those pay equity plans.  That is to say, as a threshold for approval of multiple plans, there must be sufficient male job classes in each of the proposed plans to permit a comparison of compensation between male and female job classes.

As of December 31, 2022, NAV CANADA had approximately 4,764 employees, with close to 90% of its employees being unionized and in 8 different bargaining units.  All of the unions opposed the application.

NAV CANADA originally proposed three plans, structured as follows:

• Plan 1: 47.4% of the total workforce, including seven (7) of the eight (8) bargaining units as well as all non-unionized employees. Plan 1 would include non-unionized employees (excluding managers, directors and senior executives).
• Plan 2: all employees who belong to the Canadian Air Traffic Control Association, Unifor Local 5454 (CATCA) bargaining unit, which represents Air Traffic Controllers (“ATCs”).
• Plan 3: non-unionized managers, directors and senior executives.

The application to establish multiple plans was allowed in part. The Commissioner granted the application for a separate pay equity plan (Plan 2) for ATCs under the CATCA collective agreement, and denied the application for a separate plan for management employees. Non-unionized managers, directors, senior executives, as well as employees in the remaining bargaining units, must be included with all other employees in Plan 1. 

Regarding Plan 3, the Commissioner was not persuaded that including Senior Management in the same plan as lower-rated female-dominated job classes would inevitably pose a barrier to identifying and eliminating wage gaps, such that it would be appropriate to assign them to separate plans. The Commissioner emphasized that the objectives of the Act were most likely to be advanced if the predominantly female job classes at the Senior Management level could be compared with the full range of male-dominant professional, scientific, and technical jobs in Plan 1. NAV CANADA also acknowledged that there may be some crossover at the lower ends of Plan 3 and the upper ends of Plan 1, which made it appropriate in the Commissioner’s view to include them together in a single pay equity plan.

The Commissioner found that it was appropriate in the circumstances to grant a separate Plan 2 for CATCA employees. Specifically, the Commission determined that the inclusion of CATCA employees in Plan 1 would present exceptional challenges for the pay equity committee to overcome. This conclusion was based on the fact that job evaluation and pay structures for ATCs are highly specific to their work and have evolved through a collaborative process between the bargaining agent and employer over many years, resulting in specialized job evaluation tool for this group. Accordingly, the Commissioner reasoned that having CATCA employees in the same plan as other employees would introduce a level of complexity into the pay equity process that was not justified given the already robust set of male comparators in Plan 1 with the inclusion of Senior Management positions.

This case provides an example of the considerations that could, potentially, lead the Commissioner to approve a  multiple plan application under section 30 of the Act.   To date, the Commissioner has refused approval even in cases where the employer and affected trade unions supported the applications.   The decision concerning NAV CANADA is a potentially promising development in this quickly evolving area of the law. We will continue to monitor this situation and provide updates as they become available.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.