FPSLREB Decisions

Order

A. Consent order incorporating the Memorandum of Settlement between the Communications Security Establishment 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 Communications Security Establishment on March 1, 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 20 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 CSE;

Whereas on July 17, 2013, the PSAC also submitted, and the CSE concurred in its submissions on July 18, 2013, that the Memorandum of Settlement addresses obligations as between the PSAC and the CSE 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 CSE and the Treasury Board has no further liability in respect of the complaint relating to the employees employed by the CSE;

Whereas in its submissions on August 7, 2013, the TB observed that part of the consideration that was negotiated between the CSE 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 CSE 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 1, 2013 and signed in five originals in Ottawa, Ontario, by John Forster, Chief, and Bruce Hirst, Deputy Chief, Corporate Services, CSE; 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 the CSE is a separate agency and has the legal authority to exercise the powers and perform the functions of the Treasury Board 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 CSE employee appointed to a position classified as a CR or DACON during the period of March 8, 1985 to July 22, 1997 (“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 Retroactive Period during which he or she was a temporary office assistant, a casual employee, or 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 the CSE has been terminated for cause from employment and has executed a comprehensive release document in favour of the CSE releasing the CSE 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. The CSE will pay to all Eligible Employees (as defined above in paragraph 1) for the Retroactive Period:
   
   (i) In the case of Eligible Employees in the CR and DACON groups, being the only occupational groups affected by the Complaint against the CSE, the sum of fifty-five percent (55%) of the Annual 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), applicable to the occupational group(s) and level(s) of the Eligible Employees. The said amounts shall, however, be adjusted in the following manner:
   
   1. The amount(s) will be prorated based on the number of days that the Eligible Employee was employed by the CSE during the Retroactive Period as defined in paragraph 1;
   2. Periods of Leave Without Pay of the Eligible Employee during the Retroactive Period defined in paragraph 1 will not be considered as part of the Retroactive Period, except as specifically provided for in paragraph 1; and
   3. The amounts for Eligible Employees whose normal hours of work were less than the scheduled hours of work of a full-time employee shall be prorated to the number of hours worked in one of the affected groups during the Retroactive Period in paragraph 1.
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 amounts paid pursuant to paragraph 5 will be referred to by the parties as the “Settlement of the Pay Equity Complaint”.
8. The CSE’s payment to individual Eligible Employees of the Settlement of the Pay Equity Complaint will be structured as follows:
   
   1. 50% of the Settlement of the Pay Equity Complaint will be paid as compensation for lost wages and interest (“Lost Wages Compensation”) and will be subject to regular statutory deductions;
   2. 50% 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 to a maximum of $20,000.00.
   3. Should the amount calculated under paragraph 8(ii) that is payable to an individual Eligible Employee exceed $20,000.00, the excess amount payable shall be treated as Lost Wages Compensation in accordance with paragraphs 8(i) and 9 herein.
9. The parties agree that 100% of the Lost Wages Compensation shall be considered to be wages for all purposes, including superannuation.
10. The Eligible Employees covenant and agree to save harmless and indemnify the CSE from all charges, taxes, assessments and penalties which may be made by the Minister of National Revenue requiring the CSE 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, assessments 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 to be found to be payable by the CSE, subject always to the rights of Eligible Employees to appeal against such assessments or re-assessments.

C. MANDATORY NOTICE REQUIREMENTS

11. The CSE agrees to provide PSAC with a list of all Eligible Employees within thirty days (30) after the signing of this Memorandum of Settlement.
12. The CSE agrees to provide Eligible Employees who are currently employed by the CSE with their Settlement of the Pay Equity Complaint by September 30, 2013.
13. The CSE will make its best efforts to obtain addresses from the Public Service Pension Centre for all Eligible Employees who are not currently employed by the CSE.
14. The CSE agrees to send a Notice of Settlement to all Eligible Employees who are not currently employed by the CSE to the address provided by the Public Service Pension Centre or the last known address available to the CSE by December 1, 2013. The CSE will include with the Notice of Settlement an Acknowledgement Card which the Eligible Employee is required to send back to the CSE confirming their contact information by March 31, 2014.
15. All Eligible Employees who are not currently employed by the CSE are required to provide written notification of their current mailing address by March 31, 2014. The written notification must be postmarked no later than March 31, 2014 and addressed to the attention of the Director General of Human Resources, Communications Security Establishment, P.O. Box 9073, Terminal, Ottawa, Ontario K1G 3Z4.
16. The CSE shall issue payment to all Eligible Employees who have complied with the Notice requirements in paragraphs 14 and 15 above, by the later of June 30, 2014 or 90 days following the date on which the written notification or Acknowledgement Card is received by the CSE.
17. PSAC shall have sixty calendar days (60) following the issuance of the payment to the Eligible Employee by the CSE 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 the CSE upon the expiration of the said sixty (60) calendar days.
18. Those Eligible Employees who are not currently employed by the CSE and have not complied with paragraphs 14 and 15 above shall be deemed to no longer be Eligible Employees and forfeit the right to received or claim any amounts under this Memorandum of Settlement.
19. The CSE 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 the CSE to contact the CSE by March 31, 2014.

D. FULL AND FINAL SETTLEMENT AND MUTUAL RELEASE

20. PSAC agrees that this settlement in in full and final compensation for all matters covered by the Complaint against the CSE and forever releases and discharges Her Majesty the Queen in Right of Canada, including but not limited to, the CSE, 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 CSE.
21. The parties agree that this settlement shall in no way constitute a precedent in any future or like cases.
22. PSAC and the CSE agree that this settlement is entered into without prejudice to either party and without any admission of liability or wrongdoing on the part of the CSE with respect to the allegations in the Complaint.
23. 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 the 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.
24. The parties estimate that the maximum amount of $1.75 million will be sufficient to cover CSE’s liability for all payments to Eligible Employees as set forth herein. Notwithstanding anything contained in this Memorandum of Settlement, the total amounts to be paid by the CSE under this Memorandum of Settlement shall at no time exceed the lesser of (a) $1.75 million (CAD) (“Monetary CAP”) or (b) fifty-five percent (55%) of the Annual 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) and as it applies to employees in the CR and DACON occupational groups, and without any interest amounts applied to these amounts for the period March 8, 1985 to present.
25. Notwithstanding paragraph 24 herein, the CSE may at its sole discretion increase the Monetary CAP provided for in paragraph 24 herein, but for the sole and only purpose of making adjustments to the total amounts required by the CSE to make payment to all Eligible Employees under this Memorandum of Settlement and such adjustments to the Monetary CAP are to be made at amounts that are to be decided upon solely by the CSE.
26. The parties consent to this Memorandum of Settlement being made an order of the Public Service Labour Relations Board for the purposes of enforcement.
27. The parties agree that this Memorandum of Settlement can be signed in counterpart, but by no later than March 1, 2013.

B. Closure of file 666-13-11

File 666-13-11 is now closed.

September 10, 2013.

David Olsen,
A/Chairperson,