Common use of ANALYSIS AND DECISION Clause in Contracts

ANALYSIS AND DECISION. [9] For each issue in dispute, we will, as the case may be, summarize the applicable rules of law, relevant evidence, the parties’ claims and their respective latest proposals, and come to a decision. [10] It goes without saying that this issue is the most complex and was the subject of much of the evidence heard as part of the first award and in the discussions during the mediation/arbitration process. As reported in the May 31, 2018 award, the complexity stems from differences in the compensation methods of the two comparable groups (RSMCs and letter carriers), and from differences in the allocation of workloads and time measurement systems or estimated volume for each route assigned to each RSMC and letter carrier. [11] Before starting the analysis of the parties’ latest proposals, a reminder of some critical legal guidelines is required, as they constitute the framework for analysis. The Canadian Human Rights Act (the Act) is considered fundamental and quasi-constitutional because of the fundamental nature of the rights it protects. Thus, it must be interpreted in a broad and liberal way, in light of its objectives and context, in this case the eradication of gender-based wage discrimination. Once discrimination has been demonstrated, the applicable standard is that of “reasonable reliability”: “[215] [...] since perfect gender neutrality is probably unattainable and pay equity is not susceptible to precise measurement, “one should be satisfied with reasonably accurate results based on what is, according to one’s sense, a fair and equitable resolution” of a wage gap between men and women performing work of equal value.”2 [12] Finally, in addition to these elementary considerations, there are the following: “[653] From these more general principles, the Undersigned retains the following as essential to the analysis of either party’s methodology: the direct wage compensation methodology must be analysed in a flexible, case-by-case, approach that complies with the intention and purpose of the Act and the Guidelines. However, the data must still be correct, and the job rate has to be calculated as accurately as possible, in a manner that is least disruptive to the collective agreement and that aligns with the compensation practices of the parties. To this end, similarly to what is done with the job evaluation outcome, the results must be tested against the evidence to ensure they correspond to the realities of the workers. Thus, it is through this lens that the Tribunal shall evaluate the appropriateness of each consultant’s methodology.”3 [13] In this case, as previously reported, the undersigned has decided that a method comparing the hourly rate of letter carriers with a derived wage rate for RSMCs is the most reliable method among those discussed during arbitration and she has referred this issue back to the parties. While respecting the guidelines set out in the award of May 31, 2018, the parties therefore explored how this method could be improved and lead to a relatively reliable or fair result. [14] On the issue of management systems and comparative methodology, the undersigned has retained the following from all the evidence presented in arbitration: “[680] The use of a wage rate based on RMS hours has been a point of contention of the utmost importance for both parties. In his October report, ▇▇ ▇▇▇▇▇▇ used the so-called RSMC “hourly rate” and multiplied it by eight RMS hours per day as his basis to evaluate what he called a full-time daily hourly rate of pay; he deemed that the Corporation was erring in its reservations concerning the RMS hours and that, in any event, the latter hours were as inaccurate as the LCRMS hours. On the contrary, CPC and its consultant have argued that RMS hours cannot be relied upon by the Union to obtain an “hourly rate” equivalent to the LC, since it too unreliable and inaccurate. [681] A great deal of evidence has been adduced by both parties regarding the components and reliability of both systems. The Tribunal, after careful consideration, has retained the following as essential in dealing with that issue, which shall be presented alongside the Undersigned’s conclusions on the matter.

ANALYSIS AND DECISION. [9] For each issue subject in dispute, dispute we will, as depending on the case may becase, summarize the applicable rules of law, the relevant elements of evidence, the parties’ claims and claims, their latest respective latest proposals, and come to a decisionthen decide. [10] It goes without saying that this issue This subject is naturally the most complex and was the subject of much comprises a major portion of the evidence heard as part of the first initial award and in the discussions during the mediation/arbitration processdiscussions. As reported stated in the May 31, 2018 31 award, the complexity stems arises from differences in the compensation methods of the compensating two comparable groups (RSMCs RSMC and letter carriers)) on the one hand, and from differences in the allocation of workloads assigning workloads, measuring time and time measurement systems or estimated volume estimating volumes for each route assigned to each RSMC and letter carriercarrier on the other. [11] Before starting the analysis of analyzing the parties’ latest proposals, a reminder of some critical certain essential legal guidelines is requirednecessary, as since they constitute the framework for analysisanalysis framework. The Canadian Human Rights Act (the Act) is considered fundamental and quasi-quasi- constitutional because of due to the fundamental nature of the rights it protects. Thus, it It must therefore be interpreted in a broad broadly and liberal way, liberally in light of its objectives and context, in this case the eradication of instance eradicating gender-based wage discrimination. Once discrimination has been demonstratedis shown, the applicable standard is that of “reasonable reliability”: ““ [215] [...] since perfect gender neutrality is probably unattainable and pay equity is not susceptible to precise measurement, “one should be satisfied with reasonably accurate results based on what is, according to one’s sense, a fair and equitable resolution” of a wage gap between men and women performing work of equal value.”2 value”2 [12] FinallyLastly, in addition to the following also complements these elementary considerations, there are the following: “[653] From these more general principles, the Undersigned retains the following as essential to the analysis of either party’s methodology: the direct wage compensation methodology must be analysed analyzed in a flexible, case-by-case, approach that complies with the intention and purpose of the Act and the Guidelines. However, the data must still be correct, and the job rate has to be calculated as accurately as possible, in a manner that is least disruptive to the collective agreement Collective Agreement and that aligns with the compensation practices of the parties. To this end, similarly to what is done with the job evaluation outcome, the results must be tested against the evidence to ensure they correspond to the realities of the workers. Thus, it is through this lens that the Tribunal shall evaluate the appropriateness of each consultant’s methodology.”3 [13] In this case, as previously reportedstated, the undersigned has Undersigned decided that a method comparing the hourly rate of for letter carriers with a derived wage pay rate for RSMCs is the most reliable method among those discussed during arbitration debated in arbitration, and she has the undersigned referred this issue back matter to the parties. While The parties, respecting the guidelines set out dictated in 2 Extract from the award Canada Post Corporation and Canadian Union of Postal Workers (collective) award, previously cited note 1, para 457. PSAC v. Canada Post Corp, 2010 FCA, para. 215. Judge ▇▇▇▇▇ cited another pay equity award: PSAC v. Canada (Treasury Board), (1996) 29 C.H.R.R. Award 36. 3 Canada Post Corporation and Canadian Union of Postal Workers (collective grievance), previously cited note 1, para. 653. the May 3131 award, 2018, the parties therefore explored how this said method could be improved and upon to lead to a relatively reliable or fair result. [14] On the issue matter of management systems and comparative methodology, the undersigned has retained Undersigned upheld the following elements from all the evidence presented in arbitration: “[680] The use of a wage rate based on RMS hours has been a point of contention of the utmost importance for both parties. In his October report, ▇▇ ▇. ▇▇▇▇▇▇ used the so-called RSMC “hourly rate” and multiplied it by eight RMS hours per day as his basis to evaluate what he called a full-time daily hourly rate of pay; he deemed that the Corporation was erring in its reservations concerning the RMS hours and that, in any event, the latter hours were as inaccurate as the LCRMS hours. On the contrary, CPC and its consultant have argued that RMS hours cannot be relied upon by the Union to obtain an “hourly rate” equivalent to the LC, since it too unreliable and inaccurate. [681] A great deal of evidence has been adduced by both parties regarding the components and reliability of both systems. The Tribunal, after careful consideration, has retained the following as essential in dealing with that issue, which shall be presented alongside the Undersigned’s conclusions on the matter. [682] On the LC side, the Corporation relies on the LCRMS, which is an extremely detailed and sophisticated system used to build routes of around eight daily hours for the approximately 12,000 full-time LCs and the approximately 900 part-time LCs. Every activity is timed to the second and other inputs allow to adjust for mail volume, POC coverage, walking distances, the optimal delivery sequence, etc. With all those elements accounted for, the system produces routes that should, on average, require eight hours per day for the LCs to complete. Because LCs are paid for eight hours if their route is assessed to last at least six hours, building eight-hour routes is important to maximize productivity. For CPC, this system is highly reliable and can be trusted to produce accurate results. [683] However, the evidence shows that the system is far from perfect. LCs can finish their route earlier or later than its intended finish time, which can require that the employees work overtime. In fact, overtime has been steadily increasing over the years. The variations can be attributed to many factors: seasonal peak demands, time of the week, mail and parcel volume fluctuations, weather conditions, delayed trucks, etc. As recognized by the Corporation’s witnesses, the LCRMS is not designed to account for these variations and cannot react to them. It is a system that is based on averages and is not predictive, on a daily or even weekly basis, of time actually worked by LCs. [684] Another factor that influences the accuracy of the LCRMS is the fact that volume counts are not done regularly by the Corporation; yet, consideration for volume has repeatedly been lauded by CPC’s representatives throughout the hearing as a hallmark and distinguishable feature of the LCRMS. Likewise, some of the time values have not been updated in decades. [685] Also, there are several constraints which the LCRMS cannot adapt to, such as the total number of POCs to be serviced for a LC depot. Consequently, 94% of LC routes are assessed to last between seven and nine hours daily, meaning that despite the sophistication of the LCRMS, some routes are nevertheless over or under-assessed. [686] The LCRMS does not evaluate workload for a predictable environment, the high variability in the work means that the LCRMS eight hours do not necessarily equate to eight hours actually worked in practice. Furthermore, the eight-hour day includes 55 minutes of paid breaks and a 7% fatigue rate to account for the employee’s personal fatigue and usual work delays, such as washroom breaks. It has been recognized that such situations arise, but no evidence has been adduced to precisely quantify the time paid but not worked. [687] Finally, it was shown that the LCRMS is a very costly and litigious system. CPC spends $10M annually on the maintenance of the system and $3M for route restructures, while 11 national and 400 regional grievances have been filed since 2011 concerning route restructures. CPC representatives have recognized that the Corporation is considering replacing the actual system with one that can account for fluctuations in ways that the LCRMS cannot. [688] Overall, the evidence shows that the LCRMS is a very intricate system that allows the Corporation to maximize daily productivity, but that system is not as accurate as the Corporation would want to portray it. As indicated by ▇▇. ▇▇▇▇▇▇ in her reports, the LCRMS is truly a unique system in its sophistication. [689] On the RSMC side, no comparable time-based system exists. Nevertheless, there is a time dimension to the work of RSMCs. The latter each receive company documentation pertaining to their route, the Schedule A, which includes approximate times to sort and deliver mail each day. The Schedule A is designed by CPC, which retains control over the assessment of time values and, as such, the time estimated to complete one’s route. The estimated time to complete one’s route excludes time for variable pay. The Schedule A forms part of the RSMC job description as per article 27.01 of the Collective Agreement. [690] Undeniably, the estimated time, as the name suggests, is not a precise calculation of the employee’s time required to do the work. To reinforce that notion, the Corporation has recently added plus or minus fixed 25 minutes range to the estimated time, no matter the length of the route. As shown by the 2,205 approximate routes whose RMS hours are above the available delivery time, RMS hours clearly do not always equate to actual hours worked, similarly to the LCs. [691] The time studies conducted by the parties show that some RSMCs finish early while others finish later than their estimated time required; the intensity of the variance is not dramatic either. ▇▇. ▇▇▇▇▇▇, in his reply report, showed that the majority, 66% to be exact, of the RSMC routes are assessed to last between 5.1 and 8.0 RMS hours daily. Once again, the same pattern, although it is less pronounced, can be observed on the LC side, where 94% of route last between 7 and 9 hours.