FPSLREB Decisions

Order

A. Consent order incorporating the Minutes of Settlement between the Office of the Superintendent of Financial Institutions 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 Minutes of Settlement with the Office of the Superintendent of Financial Institutions (OSFI) on February 26, 2013 and requested that the Board issue a consent order that would embody the Minutes of Settlement on March 14, 2013;

Whereas the Board, observing that the Treasury Board (“the TB”) was a named respondent in the complaint but not a party to the Minutes of Settlement, requested submissions from the parties to the Minutes 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 Minutes 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 OSFI;

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

Whereas in its submissions on August 7, 2013, the TB observed that part of the consideration that was negotiated between the OSFI 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 OSFI and the PSAC;

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

The Board hereby embodies the Minutes of Settlement, signed in five originals in Ottawa, Ontario, by Julie Dickson, Superintendent of Financial Institutions, and Gary Walker, Assistant Superintendent, Corporate Services, OSFI on March 1, 2013; and by Robyn Benson, National President, and Helen Berry, Classification and Equal Pay Specialist, PSAC on February 26, 2016, into an order, on consent, with its Appendices A and B, enclosed at the end of this consent order, as follows:

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

AND WHEREAS the OSFI is a separate agency, and the Superintendent has the authority under theOffice of the Superintendent of Financial Institutions Act to exercise the powers and perform the functions of the Treasury Board that relate to human resources management;

THE PARTIES HEREBY agree to the following terms and conditions ofsettlement:

1. The OSFI will pay to all Eligible Employees (as defined below in paragraph 4):
   
   1. In the case of Eligible Employees in the CR, STOCE and STSCY groups, being the only occupational group affected by the Complaint against the OSFI, the sum of fifty percent (50%) 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 Employee to be prorated based on the number of days that the Eligible Employee was employed by the OSFI during the Retroactive Period defined in paragraph 4.
   2. In the case of Eligible Employees in the CR, STOCE and STSCY groups, an additional sum of five percent (5%) 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 Employee to be prorated based on the number of days that the Eligible Employee was employed by the OSFI during the Retroactive Period defined in paragraph 4. This additional sum is being provided in lieu of a formal dispute resolution process, subject to the procedure outlined in paragraph 10 herein.
   3. In the case of Eligible Employees in the PE group, the sum of fifty percent (50%) of the retroactive payment amounts contained in Appendix B which are based on the agreement reached between representatives of the Personnel Administration National Assembly (PENA) and the Treasury Board Secretariat dated November 26, 1999, applicable to the level(s) of the Eligible Employee to be prorated based on the number of days that the Eligible Employee was employed by the OSFI during the Retroactive Period defined in paragraph 4.
   4. In the case of Eligible Employees in the PE group, an additional sum of five percent (5%) of the retroactive payment amounts contained in Appendix B which are based on the agreement reached between representatives of the Personnel Administration National Assembly (PENA) and the Treasury Board Secretariat dated November 26, 1999, applicable to the level(s) of the Eligible Employee to be prorated based on the number of days that the Eligible Employee was employed by the OSFI during the Retroactive Period defined in paragraph 4. This additional sum is being provided in lieu of a formal dispute resolution process, subject to the procedure outlined in paragraph 10 herein.
2. 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, or the agreement reached between representatives of the Personnel Administration National Assembly (PENA) and the Treasury Board Secretariat, dated November 26, 1999, shall apply to the parties or any Eligible Employee.
3. The amounts paid pursuant to paragraph 1 will be referred to by the parties as the “Pay Equity Settlement".
4. An "Eligible Employee" is defined as an OSFI employee who was in receipt of a salary, an allowance (maternity allowance or parental allowance), disability benefits or workers' compensation benefits and was classified as:
   
   1. a CR, STOCY or STSCY during the period of July 2, 1987 to December 31, 1997 ("Retroactive Period"), or
   2. a PE during the period of October 1, 1991 to December 31, 1997 ("Retroactive Period").
5. An employee who would otherwise be an Eligible Employee, will not be considered an Eligible Employee for any portion of the applicable Retroactive Period during which he or she was a temporary office assistant, a casual employee, or on secondment from another employer.
6. In the event that an Eligible Employee dies or has died before payment of his or her Pay Equity Settlement, then his or her Pay Equity Settlement shall be paid to his or her assigns, heirs or successors, as appropriate.
7. The OSFI's payment to individual Eligible Employees of the Pay Equity Settlement will be structured as follows:
   
   1. 50% of the Pay Equity Settlement 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 Pay Equity Settlement 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 7(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 7(i) and 8 herein.
8. The parties agree that 100% of the Lost Wages Compensation shall be considered to be wages for all purposes, including superannuation.
9. The Eligible Employees covenant and agree to save harmless and indemnify the OSFI from all charges, taxes and penalties which may be made by the Minister of National Revenue requiring the OSFI 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 to be found to be payable by the OSFI, subject always to the rights of Eligible Employees to appeal against such assessment or re-assessments.
10. The OSFI and PSAC agree to meet to resolve any outstanding items as they arise. PSAC agrees that all claims relating disputed amounts shall be brought to PSAC by Eligible Employees. PSAC agrees that no dispute involving payment amounts to an individual Eligible Employee will be brought to the OSFI unless the Eligible Employee has provided evidence to PSAC to support the claim, and the disputed amount exceeds the 5% additional payment provided under paragraph l(ii) herein.
11. The OSFI agrees to provide PSAC with a list of all Eligible Employees within thirty (30) days after the OSFI receives the data reports that the OSFI has requested from Public Works and Government Services Canada.
12. The OSFI agrees to provide Eligible Employees who are currently employed by the OSFI with their Pay Equity Settlement by July 31, 2013.
13. The OSFI 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 OSFI.
14. The OSFI agrees to send a Notice of Settlement to all Eligible Employees who are not currently employed by the OSFI to the address provided by the Public Service Pension Centre or the last known address available to the OSFI by October 1, 2013. The OSFI will include with the Notice of Settlement an Acknowledgement Card which the Eligible Employee is required to send back to the OSFI confirming their contact information by October 1, 2014.
15. With respect to an Eligible Employee who was classified as a PE, OSFI will include a form of release and waiver which that Eligible Employee is required to complete and send back to OSFI by October 1, 2014.
16. All Eligible Employees who are not currently employed by the OSFI are required to provide written notification of their current mailing address by October 1, 2014. The written notification must be postmarked no later than October 1, 2014 and addressed to the attention of the Managing Director, Human Resources Division, Office of the Superintendent of Financial Institutions, 255 Albert Street, Ottawa, Ontario, K1A OH2.
17. The OSFI shall issue payment to all Eligible Employees who have complied with the Notice requirements in paragraphs 14, 15 or 16 above, by the later of March 31, 2014 or 90 days following the date of written notification or Acknowledgment Card is received by the OSFI.
18. Those Eligible Employees who are not currently employed by the OSFI and have not complied with paragraph 14, 15 or 16 above shall be deemed to no longer be Eligible Employees.
19. The OSFI and PSAC undertake to place on their respective websites information pertaining to the Pay Equity Settlement including the requirement for all Eligible Employees who are not currently employed by the OSFI to contact the OSFI by October 1, 2014.
20. PSAC agrees that this settlement is in full and final compensation for all incidents alleged in the Complaint against the OSFI and forever releases and discharges Her Majesty the Queen in Right of Canada, and all of Her servants, and the OSFI, its directors, officers and all other employees from all claims or causes of action arising out of or relating to the allegations in the complaint relating to the OSFI.
21. The parties agree that this settlement shall in no way constitute a precedent in any future or like cases.
22. PSAC and the OSFI 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 OSFI 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 consent to these Minutes of Settlement being made an order of the Public Service Labour Relations Board for the purposes of enforcement.

B. Closure of file 666-23-13

File 666-23-13 is now closed.

September 10, 2013.

David Olsen,
A/Chairperson

An agreement to settle Pay Equity complaints for the PE Group was reached between the representatives of the Personnel Administration National Assembly (PENA) and Treasury Board Secretariat (TBS) on November 26, 1999. This agreement was ratified by employees in the PE Group, and was then approved by the Canadian Human Rights Tribunal (CHRT) on February 24, 2000.

Retroactive payments under that agreement were based on the level within the PE Group between October 1, 1991 and September 30, 1999 as follows: