FPSLREB Decisions

Order

A. Consent order incorporating the Memorandum of Settlement between the Canadian Institutes of Health Research 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 Medical Research Council/Canadian Institutes of Health Research (CIHR) on February 26, 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 19 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 CIHR;

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

Whereas in its submissions on August 7, 2013, the TB observed that part of the consideration that was negotiated between the CIHR 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 CIHR 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 February 26, 2013, and signed in five originals in Ottawa, Ontario, by Diane Massicotte, Director, Human Resources, CIHR; and by Robyn Benson, National President, and Helen Berry, Classification and Equal Pay Specialist, PSAC, 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 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 MRC (CIHR) is a separate agency and has the legal authority under the Canadian Institutes of Health Research 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. ELIGIBL EEMPLOYEES

1. An “Eligible Employee” for the purposes of the Memorandum of Settlement is defined as an MRC (CIHR) employee appointed to a position classified as CR, DA or ST during the period of March 8, 1985 to March 31, 1999 or PE during the period of October 1, 1991 to September 30, 1999 ("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 MRC (CIHR) has been terminated for cause from employment and has executed a comprehensive release document in favour of the MRC (CIHR) releasing the MRC (CIHR) 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 MRC (CIHR) will pay to each Eligible Employee (as defined above in paragraph 1) for the Retroactive Period:
   
   1. In the case of an Eligible Employee in the CR, DA or ST groups, 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), as it applies to the occupational group(s) and level(s) of the Eligible Employee; and
   2. In the case of an Eligible Employee in the PE group, the sum of fifty-five percent (55%) of the retroactive payment set out in the Memorandum of Agreement reached between the Personnel Administration National Assembly and the Treasury Board of Canada, dated October 29, 1999 (see Appendix B), as it applies to the level(s) of the Eligible Employee.
      
      The said amounts shall, however, be adjusted in the following manner:
   3. The amount(s) will be prorated based on the number of days that the Eligible Employee was employed by the MRC (CIHR) during the Retroactive Period as defined in paragraph 1;
   4. Periods of Leave Without Pay (LWOP) 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
   5. In the case of an Eligible Employee who worked less than full-time hours, the 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 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 or under the Memorandum of 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. For the purposes of this paragraph, an entitlement shall include overtime, separation pay or paid vacation for the Retroactive Period.
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 MRC’s (CIHR’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; 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 as Lost Wages Compensation in accordance with paragraphs 8(i) and 9.
9. The parties agree that 100% of the Lost Wages Compensation shall be considered to be wages for the purposes of superannuation.
10. The Eligible Employees covenant and agree to save harmless and indemnify the MRC (CIHR) from all charges, taxes and penalties which may be made by the Minister of National Revenue requiring the MRC (CIHR) 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 the MRC (CIHR), subject always to the rights of Eligible Employees to appeal against such assessment or re-assessments.

C. MANDATORY NOTICE REQUIREMENTS

11. The MRC (CIHR) 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 MRC (CIHR) agrees to provide Eligible Employees who are currently employed by the MRC (CIHR) with their payment under this Settlement of the Pay Equity Complaint by September 30, 2013.
13. The MRC (CIHR) 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 MRC (CIHR).
14. By December, 1, 2013, the MRC (CIHR) shall send a Notice of Settlement to each Eligible Employee who is not currently employed by the MRC (CIHR) to the address provided by the Public Service Pension Centre or the last known address· available to the MRC (CIHR). The MRC (CIHR) will include with the Notice of Settlement an Acknowledgement Card which the Eligible Employee is required to send back to the MRC (CIHR), postmarked no later than March 31, 2014, to the attention of the Director, Human Resources, Canadian Institutes of Health Research, 160 Elgin Street, Ottawa, Ontario, KIA OW9, confirming their contact information.
15. The MRC (CIHR) shall issue payment to each Eligible Employee who has complied with the Notice requirements in paragraph 14 above, by the earlier of June 30, 2014 or 90 days following the date on which the written notification or Acknowledgement Card is received by the MRC (CIHR).
16. PSAC shall have sixty calendar days (60) following the issuance of the payment to an Eligible Employee by the MRC (CIHR) 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 MRC (CIHR) upon the expiration of the said sixty (60) calendar days.
17. Those Eligible Employees who are not currently employed by the MRC (CIHR) and have not complied with paragraph 14 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.
18. The MRC (CIHR) 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 MRC (CIHR) to contact the MRC (CIHR) by March 31, 2014.

D. FULL AND FINAL SETTLEMENT AND MUTUAL RELEASE

19. PSAC agrees that this settlement is in full and final compensation for all matters covered by the Complaint against the MRC (CIHR) and forever releases and discharge Her Majesty the Queen in Right of Canada, including but not limited to, the MRC (CIHR), 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 MRC (CIHR).
20. The parties agree that this settlement shall in no way constitute a precedent in any future or like cases.
21. PSAC and the MRC (CIHR) 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 MRC (CIHR) with respect to the allegations in the Complaint.
22. 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.
23. The parties estimate that the maximum amount of $500,000 will be sufficient to cover MRC's (CIHR's) liability for all payments to Eligible Employees as set forth herein. Notwithstanding anything contained in this Memorandum of Agreement, the total amounts to be paid by the MRC (CIHR) under this Settlement Agreement shall at no time exceed the lesser of (a) $500,000 ("Monetary CAP") or (b) fifty-five percent (55%) of the Annual Pay Equity Adjustment amount(s) set out in:
    
    1. 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, DA or ST occupational groups, and without any interest amounts applied to these amounts for the period of March 8, 1985 to present; and
    2. the Memorandum of Agreement reached between representatives of the Personnel Administration National Assembly (PENA) and the Treasury Board Secretariat dated November 26, 1999 (Appendix B) and as it applies to employees in the PE occupational group, and without interest amounts applied to these amounts for the period of October 1, 1991 to present.
24. Notwithstanding paragraph 23, the MRC (CIHR) may, at its sole discretion adjust and increase the Monetary CAP provided for in paragraph 23 herein, but only for the sole purpose of making adjustment to the total amounts required by the MRC (CIHR) 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 the MRC (CIHR).
25. In the case of an Eligible Employee appointed to the position of PE during the Retroactive Period, the parties agree that each individual Eligible Employee shall execute a full and final release in a form acceptable to MRC (CIHR) prior to receiving payment under this Memorandum of Settlement.
26. The parties consent to this Memorandum of Agreement 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 666-35-14

File 666-35-14 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: