November 30, 1998

On November 17th a panel of three Federal Court of Appeal judges
unanimously overturned Justice Frances Muldoon's decision of March 17, 1998
which closed the Canadian Human Rights Tribunal hearing CEP's pay equity
complaint against Bell Canada on behalf of telephone operators.  This
decision now opens the way for the CEP to return before a Tribunal to get
on with the hearing.
 
As with other legal decisions at this level, there is an option to appeal
to the Supreme Court.  However, an appeal to the Supreme Court is not
automatic.  Permission must be requested.  It is often denied, especially
in cases where the panel of judges was unanimous in its decision, as they
were in this case.   There are some 4,000 to 5,000 requests made to the
Supreme Court every year but only about 200 are heard.  Bell has until
mid-January 1999 to decide whether or not they will appeal.  It would then
take some 6 to 8 months before that request is heard.  If the right to
appeal is granted, it will then be up to the Court to decide how long it
will take to make their decision.
 
In the meantime, CEP is proceeding.  We have written to the Canadian Human
Rights Tribunal asking them to establish a new Tribunal to hear the case.
We have asked for full time Tribunal panel members to be appointed to hear
it since we are concerned about the delays that have taken place to date
when only part-time panel members were previously assigned.  We anticipate
that a new Tribunal could be in place by March 1999.  If our request is
granted for full-time Tribunal panel members we believe that this could
shorten the normal length of time before a Human Rights Tribunal panel to
about two years.
 
Many operators who have recently left Bell and others who are about to
leave in the near future have raised questions regarding their status in
these complaints.  In general, when claims have been won before Tribunals
of this kind, they have granted retroactive payments back 12 months before
the date of filing the claim.  In this case that would be back to January
1993.  There have been other decisions regarding the amount of back pay.
In addition, the Tribunals normally include anyone who was an employee
during the period as part of the award.

We cannot say in advance what the Tribunal will decide, but we strongly
recommend that Locals attempt to stay in touch with Operators who are
leaving and Operators who are leaving also stay in touch with their Local.

We will keep you informed of developments in the case.
 
 

Issued by CEP Ontario Region    opeiu 343
 

The Globe and Mail                        Wednesday, November 18, 1998

BELL PAY-EQUITY RULING A SETBACK FOR OTTAWA

        Judge hands powerful new ammunition to public-service union

        Daniel Leblanc

Ottawa -- The Federal Court of Appeal has handed a victory to Bell Canada
employees and their unions with a ruling that could also spell trouble for the
federal government in a multibillion-dollar pay-equity case.

In a unanimous decision yesterday, the Federal Court of Appeal overturned a
ruling made last March by Mr. Justice Francis Muldoon of the Federal Court of
Canada. Judge Muldoon had overruled the Canadian Human Rights
Commission's decision that the Canadian Human Rights Tribunal could hear
seven pay-equity complaints filed by unions representing Bell Canada
employees.

Yesterday's ruling could also destroy one of the federal government's most
powerful arguments in an appeal of its own pay-equity case.

Unless Bell appeals to the Supreme Court of Canada, the Bell employees may
now take their case to the quasi-judicial body for a decision on whether
20,000
mostly female telephone operators were underpaid by millions of dollars in
comparison to mostly male telephone technicians since 1992.

Last July, the same tribunal awarded a settlement estimated at $4-billion to
200,000 mostly female federal public servants who for up to 14 years were
underpaid in comparison to employees in male-dominated jobs.

"There is no reason, no logic, no justification not to implement the tribunal
decision immediately," PSAC President Daryl Bean said.

Mr. Massé said yesterday that the Federal Court of Appeal's decision has not
cleared the legal confusion. "Mr. Speaker, the basic issue has not changed.
There are two groups of women [Bell employees and PSAC members] that
would be submitted to two different systems of pay equity and we have to
appeal to make sure that the law is clarified."

Critics say that the government is trying to further delay payment.

"I heard what Mr. Massé said in the House and it is pure, unadulterated
bullshit," NDP Leader Alexa McDonough said. "What is clear is that the last
excuse that this government could use to delay and not pay its debt to its own
employees is gone."

At issue is how to translate the principle of "equal pay for work of equal
value"
into dollars. The tribunal ruling in the PSAC case decided on a complicated
formula that compares a group of female-dominated jobs with a group of
male-dominated jobs, and then figures out a wage gap between jobs of equal
value in the two groups to determine a settlement.

Judge Muldoon ruled that the formula should be a much simpler comparison of
a woman's job to a man's job. If a female employee can't find an equivalent
male-dominated job, there is no pay-equity adjustment.

According to the federal government, applying Judge Muldoon's job-to-job
formula to PSAC members would reduce the settlement from about $4-billion
to about $100-million.

The Federal Court of Appeal ruling ysterday said that Judge Muldoon, who
heard no evidence on this issue, had no reason to offer his opinion on a
formula. "That was simply not the issue at this stage," Judge Robert Décary
wrote in the judgment.

Judge Décary referred the issue of what formula should be applied to Bell
employees back to the Human Rights Tribunal without further comment.

"Those who expected this court to resolve issues with respect to the
interpretation and application of Section 11 [of the Human Rights Act] without
the benefit of the decision of a tribunal in this issue in the instant case
will be
disappointed," the ruling states.

In an interview, the lawyer for Bell Canada, Roy Heenan, said he was
disappointed by the ruling. "The court does not say that [Judge] Muldoon is
wrong," Mr. Heenan said about the formula. "The central point has not been
dealt with."

Mr. Heenan said yesterday's ruling will have no impact on pay-equity cases at
Canada Post and Air Canada, among other places, because the formula issue
was not addressed. He would not say if he will recommend an appeal.

PSAC, on the other hand, is preparing to ask the Federal Court to rule that
the
federal government is in contempt of the Human Rights Tribunal's decision,
Mr. Bean said, and to force the government to implement it.