FPSLREB Decisions

Order

A. Consent order incorporating the Memorandum of Settlement between the Canadian Security Intelligence Service and the Public Service Alliance of Canada

Whereas a complaint (“the complaint”) was presented to the Canadian Human Rights Commission (CHRC) on January 9, 2002, pursuant to sections 7, 10 and 11 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (“the CHRA”);

Whereas the complaint was referred to the Public Service Labour Relations Board (“the Board”) by the CHRC on January 6, 2011, pursuant to the transitional measures under the Public Sector Equitable Compensation Act, S.C. 2009, c. 2, s. 394 (“the PSECA”), as outlined in section 396 of the Budget Implementation Act, 2009, S.C. 2009, c. 2 (“the BIA, 2009”);

Whereas the Public Service Alliance of Canada (PSAC), the complainant in this matter, entered into a Memorandum of Settlement with the Canadian Security Intelligence Service (CSIS) on March 7, 2013 and requested that the Board issue a consent order that would embody the Memorandum of Settlement on March 14, 2013;

Whereas the Board, observing that the Treasury Board (TB) was a named respondent in the complaint but not a party to the Memorandum of Settlement, requested submissions from the parties to the Memorandum of Settlement on July 4, 2013 and from the TB on July 26, 2013;

Whereas on July 17, 2013, the PSAC submitted that the release clause in the Memorandum of Settlement at paragraph 18 includes the claims against the TB and that the TB has no further liability in respect of the complaint relating to employees employed by the CSIS;

Whereas on July 17, 2013, the PSAC also submitted, and the CSIS concurred in its July 18, 2013 submissions, that the Memorandum of Settlement addresses obligations as between the PSAC and the CSIS only and that the Memorandum of Settlement constitutes the resolution of all claims arising out of the complaint as they relate to employees employed by the CSIS;

Whereas in its submissions on August 7, 2013, the TB observed that part of the consideration that was negotiated between the CSIS and the PSAC was a comprehensive release that all the parties named as respondents in the complaint would benefit from and took the position that the consent orders must reflect what was expressly negotiated by the CSIS and the PSAC;

Whereas the issuance of a consent order does not constitute a legal precedent;

The Board hereby embodies the Memorandum of Settlement, dated March 7, 2013 and signed in five originals in Ottawa, Ontario by Gaetan Ranger, Director General, Personnel Services, CSIS; and by Robyn Benson, National President, and Helen Berry, Classification and Equal Pay Specialist, PSAC, into an order, on consent, with its Appendix A, attached at the end of this consent order, as follows:

WHEREAS the parties have agreed to settle the issues raised in the complaint File Number 666-02-08, filed with the Canadian Human Rights Commission ("Complaint"), and transferred to the Public Service Labour Relations Board ("PSLRB") pursuant to the Budget Implementation Act, 2009;

AND WHEREAS CSIS is a separate agency and has the legal authority under the Canadian Security and Intelligence Service Act to exercise the powers and perform the functions of the Treasury Board of Canada that relate to human resources management, such powers emanating from the Financial Administration Act;

THE PARTIES HEREBY agree to the following terms and conditions of settlement:

A. ELIGIBLE EMPLOYEES

1. An "Eligible Employee" for the purposes of the Memorandum of Settlement is defined as a CSIS employee appointed to a position classified as (a) CR or ST during the period of March 8, 1985 to December 31, 1987 ("CR or ST Retroactive Period"), and in receipt of a salary, an allowance (maternity allowance or parental allowance), disability benefits or workers' compensation benefits and (b) IS during the period of January 1, 1988 to March 31, 1992 ("IS Retroactive Period"), and in receipt of a salary, an allowance (maternity allowance or parental allowance), disability benefits or workers' compensation benefits.
2. An employee who would otherwise be an Eligible Employee, will not be considered an Eligible Employee for any portion of the CR or ST Retroactive Period or IS Retroactive Period during which he or she was on secondment from another employer.
3. In the event that an Eligible Employee dies or has died before payment of his or her Settlement of the Pay Equity Complaint, then his or her Settlement of the Pay Equity Complaint shall be paid to his or her assigns, heirs or successors, as appropriate and subject to the terms of this Memorandum of Settlement.
4. PSAC acknowledges that in the event that an employee of CSIS has been terminated for cause from employment and has executed a comprehensive released ocument in favour of CSIS releasing CSIS from all legal eventualities, the terms of the said release will apply to this Memorandum of Settlement and the employee will not be considered an Eligible Employee.

B. SETTLEMENT OF PAY EQUITY COMPLAINT

5. CSIS will pay to each Eligible Employee:
   
   1. For the CR or ST Retroactive Period, the lump sum of fifty-five percent (55%) of the Pay Equity Adjustment amount(s) set out in Chart 1 of the Memorandum of Agreement between the Public Service Alliance of Canada and the Treasury Board of Canada, dated October 29, 1999 (see Appendix A), as it applies to the occupational group(s) and level(s) of those Eligible Employees;
   2. For the IS Retroactive Period, the lump sum of fifty-five percent (55%) of the simple average of the Pay Equity Adjustment amount(s) set out in Chart 1 of the Memorandum of Agreement between the Public Service Alliance of Canada and the Treasury Board of Canada, dated October 29, 1999 (see Appendix A), otherwise payable to the CR or ST occupational groups, based on the following:
      
      ISOl = CR02 + ST-TYP-02 / 2
      
      IS02 = CR 03+ STSCY02 + STOCE02 / 3
      
      IS03 = CR04 + STOCE03 / 2
      
      IS04 = CR05 + CR 06 + STSCY03 / 3
      
      The said lump sum amounts shall, however, be adjusted in the following manner:
   3. The lump sum amount(s) will be prorated based on the number of days that the Eligible Employee was employed by CSIS during the Retroactive Periods as defined in paragraph 1;
   4. Periods of Leave Without Pay (LWOP) of the Eligible Employee during the Retroactive Periods defined in paragraph 1 will not be considered as part of the Retroactive Periods, except as specifically provided for in paragraph 1;
   5. In the case of an Eligible Employee who worked less than full-time hours, the lump sum amount shall be based on the number of hours worked as a proportion of full-time hours worked in one of the affected groups during the Retroactive Periods in paragraph1; and
   6. In the case of Eligible Employees that received a salary amount from CSIS during the CR or ST Retroactive Period that is in excess of what was paid in salary to the same employees in the CR or ST occupational groups by level employed by the core public administration, the difference between (a) salary paid by CSIS during this period and (b) the salary paid to the CR or ST occupational groups in the core public administration in the same period shall be deducted from the lump sum amounts(s) payable by CSIS under this Memorandum of Settlement for that year.
6. Subject to the terms hereof, no other provision, part, benefit, interest payment or entitlement provided under the Memorandum of Agreement between the Public Service Alliance of Canada and the Treasury Board of Canada, dated October 29, 1999 shall apply to the parties or any Eligible Employee.
7. The lump sum amounts paid pursuant to paragraph 5 will be referred to by the parties as the “Settlement of the Pay Equity Complaint”.
8. CSIS’s payment to individual Eligible Employees of the Settlement of the Pay Equity Complaint will be structured as follows:
   
   1. 40% of the Settlement of the Pay Equity Complaint will be paid as compensation in lieu of lost wages and will be subject to regular statutory deductions;
   2. 60% of the Settlement of the Pay Equity Complaint will be paid as compensation pursuant to section 53(2)(e) of the Canadian Human Rights Act, without deduction for tax; and
   3. Should the amount calculated under paragraph 8(ii) that is payable to an individual Eligible Employee exceed $20,000.00, the excess shall be treated in accordance with paragraph 8(i).
9. The Eligible Employees covenant and agree to save harmless and indemnify CSIS from all charges, taxes and penalties which may be made by the Minister of National Revenue requiring CSIS to pay income tax under the Income Tax Act in respect of income tax payable by the Eligible Employees in excess of the amounts previously withheld and in respect of any and all charges, taxes and penalties which may be made on behalf of or related to the Employment Insurance Act or the Canada Pension Plan with respect to any amounts which may in the future be found to be payable by CSIS, subject always to the rights of Eligible Employees to appeal against such assessment or re-assessments.

C. MANDATORY NOTICE REQUIREMENTS

10. CSIS agrees to provide PSAC with a list of all Eligible Employees within ninety days (90) after the signing of this Memorandum of Settlement.
11. The CSIS agrees to provide Eligible Employees who are currently employed by CSIS with their payment under this Settlement of the Pay Equity Complaint by November 30, 2013.
12. CSIS will make its best efforts to obtain addresses from the Public Service Pension Centre for all Eligible Employees who are not currently employed by CSIS.
13. By December 31, 2013, CSI Sshall send a Notice of Settlement to each Eligible Employee who is not currently employed by CSIS to the address provided by the Public Service Pension Centre or the last known address available to CSIS. CSIS will include with the Notice of Settlement an Acknowledgement Card which the Eligible Employee is required to send back to CSIS, postmarked no later than May 1, 2014, to the attention of the Director General, Personnel Services, CSIS, P.O. Box 9732, Ottawa, Ontario, K1G 404, confirming their contact information.
14. CSIS shall issue payment to each Eligible Employee who has complied with the Notice requirements in paragraph 13 above, by the earlier of August 1, 2014 or 90 days following the date on which the written notification or Acknowledgement Card is received by CSIS.
15. PSAC shall have sixty calendar days (60) following the issuance of the payment to an Eligible Employee by CSIS to contest the amounts of the payment. Notwithstanding anything contained in the herein Memorandum of Settlement, no further adjustments, corrections or demands for payment whatsoever shall be made or considered by CSIS upon the expiration of the said sixty (60) calendar days.
16. Those Eligible Employees who are not currently employed by CSIS and have not complied with paragraph 13 above shall be deemed to no longer be an Eligible Employee and shall forfeit the right to receive or claim any amounts under this Memorandum of Settlement.
17. CSIS and PSAC undertake to place on their respective websites information pertaining to the Settlement of the Pay Equity Complaint including the requirement for all Eligible Employees who are not currently employed by CSIS to contact CSIS by May 1, 2014.

D. FULL AND FINAL SETTLEMENT AND RELEASE

18. PSAC agrees that this settlement is in full and final compensation for all matters covered by the Complaint against CSIS and forever releases and discharge Her Majesty the Queen in Right of Canada, including but not limited to, CSIS, the Treasury Board of Canada, their respective directors, officers, employees and agents, from all claims, demands for payment or causes of action arising out of or relating to the issues and matters raised in the Complaint made on behalf of the Eligible Employees employed by CSIS.
19. The parties agree that this settlement shall in no way constitute a precedent in any future or like cases.
20. PSAC and CSIS agree that this settlement is entered into without prejudice to either party and without any admission of liability or wrongdoing on the part of CSIS with respect to the allegations in the Complaint.
21. PSAC acknowledges that it is aware that it has the right to obtain independent legal advice before signing this agreement. PSAC hereby acknowledges and agrees that either such advice has been obtained or that PSAC does not wish to seek or obtain such independent legal advice. PSAC further acknowledges and agrees that PSAC has read this agreement and fully understands the terms of this agreement and further agrees that all such terms are reasonable and that PSAC signs this agreement freely, voluntarily and without duress.
22. The parties estimate that the maximum amount of $3.6 million will be sufficient to cover CSIS's liability for all payments to Eligible Employees as set forth herein. Notwithstanding the aforesaid and anything contained in this Memorandum of Agreement, the total amounts to be paid by CSIS under this Settlement Agreement shall at no time exceed $3.6 million ("Monetary CAP").
23. Notwithstanding paragraph 22, CSIS may, at its sole discretion adjust and increase the Monetary CAP provided for in paragraph 22 herein, but only for the sole purpose of making adjustment to the total amounts required by CSIS to make payment to all Eligible Employees under this Memorandum of Settlement and such adjustments to the Monetary CAP are at amounts that are to be decided solely by CSIS.
24. The parties consent to this Memorandum of Agreement being made an order of the Public Service Labour Relations Board for the purposes of enforcement.
25. The parties agree that this Memorandum of Settlement can be signed in counterpart, but by no later than March 15, 2013.

B. Closure of file 666-20-10

File 666-20-10 is now closed.

September 10, 2013.

David Olsen,
A/Chairperson