Date: 20210323

Files: 566-02-14420 and 14421

 

Citation: 2021 FPSLREB 31

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

BETWEEN

 

Pascal Genest

Grievor

 

and

 

TREASURY BOARD

(Correctional Service of Canada)

 

Employer

Indexed as

Genest v. Treasury Board (Correctional Service of Canada)

In the matter of the interpretation and application of a collective agreement

Before: Paul Fauteux, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: François Ouellette, counsel

For the Employer: Patrick Turcot, counsel

Decided on the basis of written submissions,
filed February 11, 12, and 18 and March 13 and 27, 2020.

(FPSLREB Translation)

 

OUTLINE

 

I. Introduction

 

II. Background

 

III. The relevant collective agreement provisions

 

IV. Jurisprudence

 

A. The joint statement of facts

 

B. Relevant decisions

 

V. Should the Board follow the Federal Court’s decision, which the Federal Court of Appeal upheld?

 

A. The grievor’s position

 

B. The employer’s position

 

C. My decision

 

VI. Redetermination

 

A. Is this a matter of the interpretation and application of the collective agreement or simply the application?

 

B. Which principles of interpretation apply?

 

C. The Interpretation of clause 30.07(k) of the collective agreement

 

1. The text to interpret

 

2. The grievor’s submission

 

3. The employer’s submission

 

4. The grievor’s rebuttal

 

5. My decision

 

VII. The discrimination allegation

 

VIII. Corrective measures

 

IX. Order

 

 

REASONS FOR DECISION

I. Introduction

[1] This case aims to determine whether Pascal Genest (“the grievor”) is entitled to receive parental benefits following the births of his two children. His two related applications were denied because his partner, who is also a federal employee but in a different job in another department, applied for the same type of benefit. The issue is whether the refusal was justified under the applicable collective agreement.

II. Background

[2] The grievor is a correctional officer (CX) and a member of the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO‑SACC‑CSN), the bargaining agent. When his children were born, the terms of his employment were governed by a collective agreement between the UCCO‑SACC‑CSN and the Treasury Board of Canada for the CX group (expiry date: May 31, 2014; “the collective agreement”).

[3] It contains provisions on the right to parental leave and benefits (clauses 30.03 to 30.07). That leave is divided into two categories: maternity and parental.

[4] Maternity leave without pay is granted to a female employee who becomes pregnant. It must end not later than 18 weeks after the end of the pregnancy.

[5] Parental leave without pay is granted to a male or female employee who has the effective care and custody of a newborn. It can be requested by the parent who took maternity leave or by the other parent, or they may share it. Parental leave is authorized for up to 37 weeks in the 52‑week period following the child’s birthdate, but if parental leave is combined with maternity leave, the combined period may not exceed 52 weeks.

[6] Generally, Canadians who take maternity and parental leave are entitled to maternity and parental benefits under the Employment Insurance system (EI, managed by Employment and Social Development Canada) or the Québec Parental Insurance Plan (QPIP) if they live in Quebec. The grievor and his partner are Quebec residents.

[7] The collective agreement states that employees are entitled to an allowance from the employer to supplement the amounts they will receive from EI or QPIP, up to 93% of their weekly pay rate. Clause 30.07(k) of the collective agreement states that the maximum combined maternity and parental allowances shall not exceed 52 weeks for each combined maternity and parental leave without pay. The issue in this case is determining how this provision applies to people in the situation of the grievor and his partner; namely, when both are public service employees but subject to different collective agreements with similar provisions.

[8] As I indicated, the grievor is an employee of the Correctional Service of Canada as a correctional officer and is a member of the UCCO-SACC-CSN, the bargaining agent. His partner, Marie-Ève Lapointe, is a public service employee with the Department of Natural Resources and is represented by a different bargaining agent that has another collective agreement with the Treasury Board, which contains provisions similar to the those of the collective agreement in this case with respect to maternity and parental leave.

[9] In 2012, Ms. Lapointe gave birth to the couple’s first child. She then took 52 weeks of maternity and parental leave beginning on April 15, 2012, and received maternity and parental allowances throughout that period.

[10] Beginning on September 9, 2012, the grievor took 5 weeks of parental leave. During that time, the QPIP paid him 70% of his salary, and the employer paid him no allowance.

[11] In 2015, Ms. Lapointe gave birth to the couple’s second child. She again took 52 weeks of maternity leave, starting this time on October 5, 2014, and again received maternity and parental allowances throughout that period.

[12] The grievor took a total of 5 weeks of parental leave, 2 weeks starting on August 9, 2015, and 3 weeks starting on September 13, 2015. During that time, the QPIP paid him 70% of his salary, and the employer paid him no allowance.

[13] In 2016, the grievor asked his employer to pay him 23% of his salary for those 2 periods of parental leave in 2012 and 2015, representing the difference between the 70% he received from the QPIP and the 93% to which he felt he was entitled under clause 30.07 of the collective agreement. The employer refused on the grounds that his partner was a member of the federal public service.

[14] The grievor filed two grievances, each related to one of the parental leave periods. Both involved the same problem, the interpretation and application of clause 30.07 of the collective agreement. On July 31, 2017, the grievances were referred to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication.

[15] In January 2020, given the undisputed nature of the facts and the legal nature of the issue to be decided, and to save legal resources, the parties jointly proposed to proceed by written arguments. They submitted a schedule for it that provided in particular for a joint statement of facts. The Board issued an order approving those proposals.

[16] The arguments show that the central issue is whether the employer correctly interpreted and applied clause 30.07 of the collective agreement, particularly clause (k), when it refused to pay the grievor the allowance he claimed that corresponded to 23% of his salary.

[17] For the following reasons, I find that it did not.

III. The relevant collective agreement provisions

[18] The parties agreed that the main provision in question is clause 30.07(k) of the collective agreement, the English and French versions of which differ and read as follows:

The maximum combined maternity and parental allowances payable under this collective agreement shall not exceed fifty-two (52) weeks for each combined maternity and parental leave without pay.

Le maximum payable pour une combinaison d’indemnité de maternité et parentale ne dépassera pas cinquante-deux (52) semaines pour chacune des périodes combinées de congés non payés de maternité et parental.

[Emphasis added]

 

[19] The full texts of clause 30.07 of the collective agreement and of all the other collective agreement clauses that at least one of the parties cited are reproduced in the appendix.

IV. Jurisprudence

A. The joint statement of facts

[20] In its response to the grievance at the final level of the grievance process on August 28, 2018, the employer upheld its decision to not pay the grievor the 93% allowance during his “[translation] paternity leave” because his partner is a member of the federal public service and, according to the joint statement of facts, “[translation] mentioned that its interpretation conforms to the collective agreement and current Public Services and Procurement Canada policies”.

[21] The joint statement of facts then states the following at paragraph 20:

[Translation]

... The Board examined the same interpretation issue in Dufour v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 130... That case involved the same parties and the same collective agreement articles. The issue was the same as in this case, mutatis mutandis....

 

[22] The joint statement of facts adds the following:

[Translation]

a) that Board decision “confirmed the employer’s preferred interpretation”,

b) following the grievor’s judicial review application, the interpretation was found unreasonable, and the adjudicator’s decision was set aside, and

c) in turn, the employer made a judicial review application for that second decision, which was dismissed.

B. Relevant decisions

[23] In Dufour v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 130, cited in the joint statement of facts, the adjudicator dismissed the grievance, accepted the employer’s interpretation, and concluded that no discrimination had taken place. As the grievor noted in his written arguments in this case, the essence of the adjudicator’s reasoning in Dufour can be summarized by paragraph 58 of the decision, as follows:

[58] In conclusion, I share the employer’s point of view that the matter at issue is not taking away a person’s right or discrimination on prohibited grounds but instead applying the admissibility criteria to the fringe benefits negotiated by the employer and the grievor’s bargaining agent and that are now governed by a collective agreement. The birth of a child can lead to a combination of applications for benefits from employees covered by the collective agreement, and the parties who negotiated the collective agreement agreed to set the maximum number of weeks payable for such a combination at 52. Neither clause 30.07 nor the employer’s interpretation of it in this case violates the right to equality or contravenes the CHRA.

 

[24] As is also noted in the grievor’s written arguments, the adjudicator based his conclusion in particular on an argument of fairness, stating at paragraph 57 that “... if the grievor’s position were adopted, federal spouses living in the province of Quebec would receive more benefits than those working elsewhere in Canada, which is neither a fair nor a desirable outcome.”

[25] In its decision Dufour v. Treasury Board, issued on November 25, 2014 (file number T‑1921‑13; unpublished), cited in the joint statement of facts, the Federal Court concluded that the adjudicator’s interpretation of clause 30.07(k) was unreasonable. At pages 7 and 8 of the decision, the Court allowed the judicial review application, set aside the adjudicator’s decision, referred the case back to the Board for redetermination, and awarded costs to the grievor. The Court dismissed the adjudicator’s fairness argument as follows:

[Translation]

... WHEREAS the parties to the hearing recognized that fathers subject to the collective agreement, when the partner is not also an employee covered by the collective agreement, are not all entitled to the same number of weeks of parental leave benefits, as the Quebec plan is more generous than the federal Employment Insurance plan, and because the collective agreement allows fathers living in Quebec to receive a parental allowance for the maximum of 37 weeks it sets out;

WHEREAS therefore, the employer accepts situations in which all its employees do not receive the same privileges, and the differences in their treatment may result from their provinces of residence;

WHEREAS the argument of fairness in the collective agreement that the adjudicator used is unfounded;

WHEREAS therefore, the adjudicator’s collective agreement interpretation is unreasonable, as it is not one of the possible outcomes that can be justified with respect to the facts and law (Dunsmuir, at para. 47) ....

 

[26] After finding that the adjudicator’s interpretation of clause 30.07(k) of the collective agreement was unreasonable, the Federal Court found that that conclusion settled the case and that it did not need to decide the issue of the application of the Canadian Human Rights Act (R.S.C., 1985, c. H‑6) and the discrimination allegation.

[27] In Canada (Attorney General) v. Dufour, 2015 FCA 226, the brief judgment to which the joint statement of facts also refers and that dismisses the judicial review application of the Federal Court’s decision, the Federal Court of Appeal ruled as follows:

...

[2] In our opinion, the Federal Court judge did not err in concluding that the adjudicator’s decision, and, more specifically, his interpretation of clause 30.07(k) of the collective agreement, was unreasonable.

...

[5] For these reasons, the appeal will be dismissed with costs.

...

 

[28] As the joint statement of facts notes finally, although the Federal Court referred the matter back to the Board for a redetermination, it has still not happened, and no proceedings have begun.

V. Should the Board follow the Federal Court’s decision, which the Federal Court of Appeal upheld?

A. The grievor’s position

[29] The grievor submitted that given the decisions of the Federal Court and the Federal Court of Appeal dealing with an issue identical to the one in this decision, the findings of those courts apply mutatis mutandis, and the Board must follow them in this case.

[30] In support of that argument, the grievor cited the following passage from the Supreme Court of Canada’s decision in Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49:

...

[24] Of course, the doctrine of stare decisis is no longer completely inflexible. As the Court noted in Bedford, the precedential value of a judgment may be questioned “if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate” (para 42). Where, on the other hand, the legal issue remains the same and arises in a similar context, the precedent still represents the law and must be followed by the courts (Bedford, at para 46).

...

[Emphasis in the original]

[31] Specifically, in terms of arbitration, the grievor cited the following opinion of Arbitrator Randall in Toronto (City) v. Canadian Union of Public Employees, Local 79, 2011 CanLII 20312 (ON LA):

...

In my view, while the doctrine of stare decisis does not apply to previous arbitration awards, a Court’s decision is binding on subsequent arbitration cases dealing with the same issue. I find that the Divisional Court’s decision in this matter is dispositive of same.

...

 

[32] The grievor deduced from this that in this case, the Board must respect the conclusions of the Federal Court and the Federal Court of Appeal that the adjudicator’s interpretation in Dufour was unreasonable.

B. The employer’s position

[33] On the other hand, the employer’s position as to whether the Board should follow the Federal Court’s decision, upheld by the Federal Court of Appeal, is conspicuously absent.

[34] Indeed, the employer’s written argument does not mention the existence of the decisions of the Board, the Federal Court, and the Federal Court of Appeal in Dufour, the relevance of which to this case is nevertheless acknowledged in the noted passages from the parties’ joint statement of facts.

[35] That absence is all the more remarkable because those decisions are among the documents that the parties agreed to jointly file, are listed at the end of the joint statement of facts, and are identified respectively as Exhibits S-5, S-6, and S-7.

[36] Certainly, the absence is remarkable but is perhaps not surprising, given that the Federal Court and the Federal Court of Appeal rejected the employer’s position in this case in another case involving the same parties (i.e., the grievor’s bargaining agent and the employer are the same) and the same issue, namely, the interpretation and application of clause 30.07(k)) of the same collective agreement.

C. My decision

[37] I draw the following negative inferences from the employer’s silence on the jurisprudence that the parties agreed to in the joint statement of facts.

[38] I conclude that the employer wishes for the Board to ignore those decisions because they are detrimental to its case.

[39] I also conclude that the employer has no argument to make in response to the grievor’s arguments that in this case, the Board must respect the findings of the Federal Court and the Federal Court of Appeal that the adjudicator’s interpretation in Dufour was unreasonable.

[40] I am persuaded by those arguments. In light of the findings of the Federal Court and the Federal Court of Appeal in Dufour, I find that the employer’s interpretation and application of clause 30.07(k) in this case, which are the same as its interpretation and application of the same clause in Dufour, are also unreasonable.

[41] Consequently, the employer did not properly apply clause 30.07(k) of the collective agreement when it refused to pay the grievor the allowance that he claimed corresponding to 23% of his salary. Therefore, his grievances are founded.

[42] In my view, these reasons would be sufficient to allow the grievances.

[43] However, given that the Federal Court referred Dufour back to the Board for a redetermination, that it still has not taken place, and that no proceedings have been initiated for it, I find that it is in the interests of justice that I decide the employer’s arguments in support of its refusal to pay the grievor the allowance corresponding to 23% of his salary and on certain other of the grievor’s arguments.

VI. Redetermination

A. Is this a matter of the interpretation and application of the collective agreement or simply the application?

[44] In his written arguments, the grievor stated, “[translation] The dispute is specifically about the interpretation and application of clause 30.07 of the said collective agreement, including paragraph (k)” (emphasis added).

[45] On the other hand, the employer submitted, “[translation] The employer respectfully submits that this case relates to the application and not the interpretation of the collective agreement” (emphasis added).

[46] The employer draws no conclusions from that argument but seems to suggest that because the collective agreement is unambiguous, the Board does not need to interpret it but simply to apply it to the facts, which are not disputed in this case.

[47] However, such a suggestion does not stand up to analysis, for the following reasons.

[48] First, as I noted at paragraphs 20 to 22, in their joint statement of facts, the parties agreed as follows:

· in its final-level response to the grievance, the employer mentioned that its interpretation is consistent with the collective agreement;

· in Dufour, the Board examined the same interpretation issue;

· that Board decision upheld the employer’s preferred interpretation; and

· following the grievor’s judicial review application, the interpretation was found unreasonable.

[Emphasis added]

 

[49] Additionally, although the Federal Court set aside the adjudicator’s decision in Dufour and the Federal Court of Appeal upheld that decision, the adjudicator and the trial and appeal judges unanimously felt that this case also involved the interpretation, not just the application, of the collective agreement, as follows:

· at paragraph 53 of his decision, Adjudicator Bertrand states, notably, “Although I concluded that the clauses in question should be interpreted as a whole ...”;

· in its last whereas statement, the Federal Court concluded that
“... the adjudicator’s interpretation [of clause 30.07(k)] is ... unreasonable”; and

· the Federal Court of Appeal stated that “... the Federal Court judge did not err in concluding that the adjudicator’s decision, and, more specifically, his interpretation of clause 30.07(k) of the collective agreement, was unreasonable.”

[Emphasis added]

 

[50] For those reasons, my view is that this case concerns both the interpretation of clause 30.07(k) of the collective agreement and the employer’s application of it in the context described in the joint statement of facts.

B. Which principles of interpretation apply?

[51] The grievor’s written argument contains a detailed analysis of the applicable interpretation principles, which I have summarized as follows:

a) The modern principle of interpretation, as formulated by Arbitrator Eliott in Communication, Energy and Paperworkers Union, Local 777 v. Imperial Oil Strathcona Refinery, [2004] A.G.A.A. No. 44 (QL; “Imperial Oil”), and repeated many times in doctrine, including by authors Brown and Beatty in Canadian Labour Arbitration, 4^th Ed. (Brown and Beatty), at 4:2100, requires that the words of collective agreements be read in their entire context, in their grammatical and ordinary sense, and harmoniously with the scheme of the agreement, its object, and the parties’ intention.

 

b) The ambiguous terms of a collective agreement provision are interpreted in the sense most appropriate to its purpose.

 

c) All the words used by the parties are presumed to have meaning (Brown and Beatty, at 4:2120).

 

d) An adjudicator cannot add or eliminate words to or from a collective agreement (Nadeau v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 82).

e) The search for the parties’ intention is the cardinal principle (Brown and Beatty, at 4:2100).

f) Once an interpretation has been made, it should be tested by asking the following questions (Imperial Oil, at para. 48):

i) Is it plausible and reasonable?

ii) Is it effective? In other words, does it address the issue within the bounds of the collective agreement?

iii) Is it acceptable in the sense that it is within the bounds of acceptability for the parties and the legal values of fairness and reasonableness?

g) The parties cannot have sought discriminatory or absurd results (Côté, Beaulac, and Devinat, Interprétation des lois, 4^th Ed., page 569).

h) If the parties’ joint intention cannot be determined, the collective agreement provision is interpreted in favour of the party that could not otherwise benefit from the full realization of the provision based on its true meaning, spirit, and purpose (Blouin and Morin, Droit de l’arbitrage de grief, 6^th Ed., page 498, paragraph 11).

 

[52] The employer did not address applicable interpretation principles or comment on those that the grievor advanced.

[53] For my part, I find that the grievor correctly identified the principles he cited.

[54] I would add one; namely, when interpreting a bilingual text, one must first seek the meaning common to the two versions. When the words of one version may raise an ambiguity, courts should first look to the other official language version to determine whether its meaning is plain and unequivocal (see R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856, at para. 5).

C. The interpretation of clause 30.07(k) of the collective agreement

1. The text to interpret

[55] The English and French versions of clause 30.07(k) of the collective agreement are reproduced for convenience as follows:

The maximum combined maternity and parental allowances payable under this collective agreement shall not exceed fifty-two (52) weeks for each combined maternity and parental leave without pay.

Le maximum payable pour une combinaison d’indemnité de maternité et parentale ne dépassera pas cinquante-deux (52) semaines pour chacune des périodes combinées de congés non payés de maternité et parental.

[Emphasis added]

2. The grievor’s submission

[56] The grievor affirmed that the use of the expression “shall not exceed” indicates that the parties wanted to put a “ceiling” on the number of weeks of allowance payable under the collective agreement. He submitted that in light of the words that the parties used, the ceiling does not apply to partners but to just one person, in this case a woman who benefitted from maternal and parental leave.

[57] Still according to the grievor, the parties knowingly used the expression “combined maternity and parental allowances”, without referring to “paternity benefits”, a term used elsewhere in the collective agreement, in its provisions referring to maternity and “paternity” benefits under the EI and QPIP systems. The employer interpreted clause 30.07(k) as meaning “combined maternity and paternity allowances” to establish a ceiling on benefits payable to a couple, but the parties did not use those terms.

[58] The grievor believes that the merits of his interpretation are confirmed by the context of the provision under consideration, including clause 30.07(c)(iii) of the collective agreement, which provides that in addition to the 18 weeks of maternity benefits and the 32 weeks of parental benefits under the QPIP, a female employee may receive an additional parental allowance for a period of 2 weeks, for a total of 52 weeks. The grievor noted that obviously, a man could not benefit from the maximum of 52 weeks of benefits (mentioned in clause 30.07(k)) as he would not be able to receive the 18 weeks of maternity benefits.

[59] From this contextual analysis, the grievor concluded that the 52‑week ceiling applies individually to female employees (the bold, which I emphasize, is from him) who avail themselves of the full 52 weeks of benefits under clause 30.07(c)(iii), to prevent them from accumulating more than 52 weeks of benefits under other collective agreement provisions. He cited as an example the fact that under this interpretation of clause 30.07(k), a female employee could not claim the maximum of 18 weeks under clause 30.04 (maternity allowance), in addition to the maximum of 37 weeks under clause 30.06 (parental leave without pay) — and not 30.07 as the grievor, in my view, incorrectly wrote — for a total of 55 weeks.

[60] The grievor believes that that interpretation is consistent with the collective agreement’s purpose and context, which provides for benefits for employees only individually, regardless of marital or family status.

[61] The grievor also argued that his partner works for another federal public service department, at which her terms of employment are governed by another collective agreement, under which she received maternity and parental allowances. Neither the grievor nor the UCCO‑SACC‑CSN are bound by Ms. Lapointe’s collective agreement. Under the well-known legal principle that contracts cannot bind third parties, therefore, the allowances that she receives under that other collective agreement cannot bind members governed by the agreement for which the interpretation is in dispute in this case.

[62] In support of this aspect of his interpretation, the grievor cited the English version of clause 30.07(k) of his collective agreement, which reads as follows: “The maximum combined maternity and parental allowances payable under this collective agreement shall not exceed fifty-two (52) weeks ...”. The emphasis is his. He noted that indeed, only 5 weeks of allowances that he requested were “under this collective agreement”, which was well below the 52-week limit that that provision sets.

[63] Turning to the parties’ intention, the grievor affirmed that the employer’s recommended interpretation leads to unfair, absurd, and discriminatory results. He noted that under that interpretation, had his partner received the same parental and maternity allowances, but had she not worked in the federal public service, he would have been entitled to the allowances set out in clause 30.07. Similarly, had his partner worked in the public service but had not received the 52 weeks of maternity and parental benefits under her collective agreement, he would have been entitled to the allowances under clause 30.07.

[64] The grievor concluded that the parties could not have intended to specifically penalize partners who are both federal public service employees and who receive parental allowances that can be combined to be greater than 52 weeks, when that ceiling would not apply to other couples, as in his view, such an interpretation would be absurd and unreasonable.

[65] The grievor submitted that instead, the parties intended to provide CSC employees with allowances to narrow the gap between QPIP benefits and their actual salaries, despite their marital or family statuses, and he stated that this interpretation is consistent with the principle that I cited in paragraph 51(h).

3. The employer’s submission

[66] Defining the issue as “[translation] [t]he maximum benefit associated with the parental allowance” and relying on a Federal Court decision, the employer based its arguments on the fact that “[i]n the executive branch of the federal government there is only one ‘employer’ and that is Her Majesty the Queen in Right of Canada ...” (Gingras v. Canada (C.A.), [1994] 2 FC 734). That decision confirms that Her Majesty delegates her employer functions to the Treasury Board (except in the case of a separate employer, which is not so in this case).

[67] It follows for the employer that since the grievor and his partner are both federal public service employees, therefore, they have the same employer, the Treasury Board of Canada.

[68] The employer noted that the collective agreements for the grievor and Ms. Lapointe have essentially the same purpose and scope: ensuring harmonious and mutually beneficial relationships between the employer, the bargaining agent, and the employees.

[69] The employer stated that it did not pay the benefit he requested under his collective agreement because of his partner’s collective agreement, which is why the employer felt that it was appropriate to examine his partner’s agreement.

[70] The employer cited clause 40.02(k) of his partner’s collective agreement, which reads as follows:

40.02(k) The maximum combined, shared maternity and parental allowances payable under this collective agreement shall not exceed fifty-two (52) weeks for each combined maternity and parental leave without pay.

[Emphasis in the original]

 

[71] The employer stated that “[translation] the main distinction” between the grievor’s collective agreement and that of Ms. Lapointe is the word “shared” and that she received QPIP and employer benefits for 52 weeks, while the grievor received benefits only from the QPIP. As she had already received the maximum benefit, the employer considered that it was unable to pay the grievor the requested 23%.

[72] The employer submitted the following in support of its position that the grievor would be entitled to full benefits (93% of his salary) for the 5 weeks of his parental leave only had Ms. Lapointe received full benefits (93% of her salary) for a maximum of 47 weeks, and not the 52 weeks she received:

[Translation]

... Ms. Lapointe’s collective agreement, although it does not apply to Mr. Genest or his bargaining agent, nonetheless applies to the employer. The employer is bound by Ms. Lapointe’s collective agreement and by Mr. Genest’s collective agreement ... the partners are bound by their marital status....

[Emphasis added]

 

[73] The employer then stated this:

[Translation]

... if the bargaining agent and grievor insist that the employer pay the 23% of his salary, to which he is entitled under his collective agreement, the employer will be required to take steps to recover the overpayment to Ms. Lapointe, i.e., the 38% that was overpaid for the 5 weeks, under her collective agreement....

[Emphasis added]

 

[74] In support of this latter claim, the employer cited the following:

a) Section 155(3) of the Financial Administration Act (R.S.C., 1985, c. F‑11), which states, “The Receiver General may recover any over‑payment made out of the Consolidated Revenue Fund on account of salary, wages, pay or pay and allowances out of any sum of money that may be due or payable by Her Majesty in right of Canada to the person to whom the over‑payment was made” (emphasis added).

 

b) Section 15, Part 3, of the Appendix to the Treasury Board Secretariat’s Directive on Terms and Conditions of Employment, which addresses the Receiver General’s authority to recover overpayments.

 

c) A human resources information notice entitled, “Recovery of Amounts Due to the Crown” and addressed to heads of human resources and to directors and chiefs of labour relations and compensation that explains the process to follow to recover overpayments.

4. The grievor’s rebuttal

[75] In his response to the employer’s submissions, the grievor first noted that his partner’s collective agreement does not bind him and then added this:

[Translation]

... A collective agreement is a contract between two parties, the employer and the bargaining agent, which cannot bind third parties. This dispute is related to the interpretation of the collective agreement between the Correctional Service of Canada and the UCCO‑SACC‑CSN, not the interpretation of a different article from a collective agreement negotiated between other parties....

 

[76] The grievor also noted that according to the modern principle of interpretation, the goal of any interpretive exercise is to determine the parties’ intention by observing the scheme of the collective agreement, and concluded with this:

[Translation]

... it is impossible to determine the parties’ intention by analyzing an entirely different collective agreement from the one binding them, and furthermore, which they did not negotiate.

In short, interpreting an article based solely on a different article from a collective agreement between different parties, as the employer is doing, is not only contrary to the fundamental principles of contract law but also the teachings of the courts on interpretation. The agreement binding the parties must be analyzed and applied....

[Emphasis added]

 

[77] Even if his partner’s collective agreement could be examined, the grievor’s view was that the employer’s proposed interpretation did not fall within a range of possible and acceptable outcomes.

[78] Disagreeing with the employer’s claim that the mere presence of the word “shared” in clause 40.02(k) of his partner’s collective agreement would mean that unlike the grievor’s collective agreement, partners who are both public service employees can benefit jointly only from a combined 52 weeks of parental allowance, the grievor submitted the following:

[Translation]

... nothing in the employer’s analysis or in the scheme of the collective agreement allows for such an inference. The term “shared” must be read in conjunction with the terms “combined maternity and parental allowances” and simply means that such a combination of the 2 allowances cannot exceed 52 weeks, without any reference to a paternity allowance or the fact that the allowances are shared “between the partners”.

Had the parties intended that the partners of public service employees could jointly benefit only from a maximum of 52 weeks of parental allowance, they would have clearly written it. We respectfully submit to the Board that it should be careful not to add terms to the collective agreement that the parties did not expressly provide for....

[79] The grievor concluded with this:

[Translation]

... [r]ather, the appeal court’s interpretation in Dufour must prevail. The Federal Court of Appeal’s decision binds the Board, based on the principle of stare decisis, which requires that administrative tribunals follow the directives given by the reviewing courts (Bank of Montreal v. Li, 2020 FCA 22 at para. 37, citing Tan v. Canada (Attorney General), 2018 FCA 186). However, Dufour clearly goes against the employer’s interpretation of clause 30.07(k) of the collective agreement....

 

5. My decision

[80] At paragraphs 37 to 41, I explained why I agree with that last conclusion of the grievor. In light of the decisions of the Federal Court and the Federal Court of Appeal in Dufour, I find that the employer’s interpretation and application of clause 30.07(k) in this case, which are identical to its interpretation and application of the same clause in Dufour, are just as unreasonable as they were in that case.

[81] For the following reasons, I also agree with the grievor that even without the Board’s obligation to follow the Federal Court’s decision, upheld by the Federal Court of Appeal, in Dufour, the employer’s arguments on the interpretation of clause 30.07(k) are unfounded. Consequently, the grievances must be allowed.

[82] First, with respect to the employer’s use of clause 40.02(k) of Ms. Lapointe’s collective agreement, I am satisfied that both because of the principle of the relative effect of contracts and because the employer recognizes this in the passage I quoted at paragraph 72, Ms. Lapointe’s collective agreement does not apply to the grievor or his bargaining agent. The fact that the Treasury Board of Canada, the sole employer of all public service employees, is bound by that collective agreement does not change the fact that it does not bind the grievor or his bargaining agent.

[83] Therefore, I find that since I am seized of grievances about the interpretation and application of the grievor’s collective agreement, I need not decide the interpretation and application of Ms. Lapointe’s collective agreement.

[84] However, I note that if I had to, I would be sensitive to the grievor’s arguments summarized at paragraphs 78 and 79. Indeed, the employer did not persuade me that the use of the word “shared” in clause 40.02(k) of Ms. Lapointe’s collective agreement demonstrates that its interpretation of that clause is valid.

[85] Returning to the task before me, I recall that as I noted at paragraph 69, the employer acknowledged that its interpretation of clause 40.02(k) of Ms. Lapointe’s collective agreement formed the basis of its refusal to pay the benefit that the grievor requested.

[86] As I have determined that that clause does not bind the grievor or his bargaining agent, it follows that the employer’s refusal to pay him the requested benefit is unfounded.

[87] If necessary, this conclusion is supported by the fact that in the passage I cited at paragraph 73, the employer seemed to acknowledge that under his collective agreement, the grievor is entitled to the other 23% of this salary that he claims.

[88] Now, with respect to interpreting clause 30.07(k) of the grievor’s collective agreement, as apposed to clause 40.02(k) of his partner’s agreement, I observe that as did the grievor in the passage I cited at paragraph 76, the employer interpreted it based solely on a different article in a different collective agreement between different parties.

[89] The employer, which had received the grievor’s written arguments on February 18, 2020, had the opportunity to respond to his arguments in support of his interpretation of clause 30.07(k) in its written arguments of March 13, 2020.

[90] However, as with the employer’s arguments about whether the Board should follow the decisions of the Federal Court and the Federal Court of Appeal in Dufour, its responses to both the principles of interpretation advanced by the grievor and his application of them are conspicuously absent.

[91] Indeed, as I noted at paragraph 52, there is no mention of those principles or their application in the employer’s written arguments.

[92] I draw a negative inference from that silence and conclude that the employer had no argument to make in response to the grievor’s arguments on identifying those applicable interpretation principles and their application to interpreting clause 30.07(k) of the collective agreement.

[93] I am persuaded by these arguments and therefore find as follows:

a) the ordinary and grammatical meaning of the words used in clause 30.07(k) indicate that the 52-week ceiling it sets out does not apply to partners but to a single person, in this case a woman, whether or not she is in a relationship, to whom is payable “combined maternity and parental allowances”;

 

b) that interpretation is confirmed by applying the principles by which

 

i) the search for the parties’ intention is the cardinal principle,

 

ii) all the words that the parties used are assumed to have meaning, and

 

iii) an adjudicator cannot add or remove words to or from a collective agreement, and the fact that the parties used the terms “combined maternity and parental allowances” and not “[translation] combined maternity and paternal/other parent allowances”, which they could have done had they intended to establish a ceiling on benefits payable to employees in a relationship;

 

c) this interpretation is also confirmed by the context and in particular by clause 30.07(c)(iii), which provides that in addition to the 18 weeks of maternity benefits and the 32 weeks of parental benefits under the QPIP, a female employee may receive an additional parental allowance for a period of 2 weeks, for a total of 52 weeks, which a man could not receive because clearly, he could not receive the 18 weeks of maternity benefits;

 

d) this interpretation is consistent with the principle that the ambiguous terms of a collective agreement provision are interpreted in the sense that best suits its purpose, with the collective agreement providing benefits for employees individually, not based on their marital or family status; and

 

e) finally, this interpretation is consistent with the principle that when interpreting a bilingual text, one must first seek the meaning common to the two versions, and if one version may be ambiguous, the other official language version should be examined to determine whether it is clear, since only the 5 weeks of compensation that the grievor requested twice were “under this collective agreement”, as specified in the English version of clause 30.07(k), and therefore, each request was well below the 52‑week limit established by that clause.

[94] Thus, having settled on my interpretation of clause 30.07(k), I will now apply the test developed in Imperial Oil and conclude as follows:

a) this interpretation is plausible and reasonable in that it is based on the words agreed to by the parties, especially since in my view, for the reasons set out at paragraphs 81 to 92, the employer’s proposed opposing interpretation is neither plausible nor reasonable;

 

b) this interpretation is effective, in that

 

i) it addresses the issue of interpreting clause 30.07(k) within the bounds of the collective agreement of which it is part, contrary to the employer’s interpretation, which requires exceeding those limits and is based entirely on a different article in a different collective agreement between different parties, and

 

ii) it will allow the parties to apply the clause and administer the collective agreement based on the interpretation; and

 

c) this interpretation is acceptable in that it is within the parties’ bounds of acceptability — in the passage I quoted at paragraph 73, the employer seems to have acknowledged that the grievor is entitled to the other 23% of his salary under his collective agreement — and the legal values of fairness and reasonableness.

[95] I also find that my interpretation of clause 30.07(k) does not lead to discriminatory or absurd results.

[96] Finally, my view is that even had I found it impossible to determine the parties’ shared intention, my interpretation is consistent with the principle by which the collective agreement provision is interpreted in favour of the party that could not otherwise benefit from the full realization of the provision based on its true meaning, spirit, and purpose, which in this case is the grievor.

VII. The discrimination allegation

[97] Were the Board to find in favour of the employer’s preferred interpretation, the grievor argued that it would constitute discrimination, as he would be treated differently based on his marital and family status, as he could not enjoy a benefit set out in the collective agreement solely because his partner is also a federal employee.

[98] The employer replied that the Board was not seized to hear and decide a case on the discrimination allegation, as Form 24 (Notice to the Canadian Human Rights Commission) was not submitted and filed within a reasonable time. And even had the Board been seized with it, the grievor failed to meet his burden of proof of a prima facie case of discrimination related to his marital or family status.

[99] As did the Federal Court in Dufour, having concluded that the employer’s interpretation of clause 30.07(k) of the collective agreement is unreasonable, and having allowed the grievances on that basis, I find that that conclusion and decision resolve the matter and that I do not need to decide the discrimination allegation.

VIII. Corrective measures

[100] As I noted at paragraphs 73 and 74, in its written arguments, the employer stated that “[translation] ... if the bargaining agent and grievor insist that the employer pay the 23% of his salary, to which he is entitled under his collective agreement ...”, which they clearly did by referring the grievances to adjudication, it will “... be required to take steps to recover the overpayment to Ms. Lapointe, i.e., the 38% that was overpaid for the 5 weeks, under her collective agreement” as a result of s. 155(3) of the Financial Administration Act; section 15, Part 3, of the Appendix to the Treasury Board Secretariat’s Directive on Terms and Conditions of Employment; and a human resources information notice.

[101] In his rebuttal, the grievor reacted as follows to this intent of the employer:

[Translation]

... In light of paragraphs 13 and those that follow of the employer’s submissions, we note the importance of obtaining a declaratory judgment on the interpretation of clause 30.07(k) of the collective agreement. Indeed, it seems that were the grievor successful and were he to receive the requested two five‑week periods of parental allowance, the employer intends to retroactively deduct those amounts from his partner’s pay.

We believe that such a circumvention of the Board’s decision, were it in the grievor’s favour, would be neither desirable nor reasonable, as it would make the Board’s decision meaningless. Therefore, we submit that the Board must declare that the grievor’s preferred interpretation in this case would not reduce his partner’s parental allowances or harm her in any way.

 

[102] In an email to the Board dated March 27, 2020, in its rebuttal, the employer stated as follows about the grievor:

[Translation]

... [he] submitted a new request for his desired declaration from the Board. Without prejudice to the position already adopted in our submissions, the employer respectfully requests the right to present submissions on this new request if the Board allows the grievance.

 

[103] When it was asked to comment on the employer’s request, the bargaining agent replied as follows:

[Translation]

... First, we did not make a new request; we clarified one of our original requests. Indeed, in the “conclusion” section of our submissions, we specifically asked the Board to:

“DECLARE that CSC’s interpretation and application of clause 30.07 of the collective agreement are incorrect and/or discriminatory.”

In our rebuttal, at paragraph 33, we simply “[emphasize] the importance of obtaining a declaratory judgment on the interpretation of clause 30.07(k) of the collective agreement,” as the employer seems to want to take from the grievor’s partner what he may eventually be entitled to if he is successful.

The purpose of that intervention is simply to emphasize the fact that we need a clear declaratory judgment on the application and interpretation the collective agreement article to avoid a future dispute involving the grievor’s partner.

As we have not added any requests or amended our original requests, given that the Board has all the information needed and both parties’ arguments, and given that the Board has full authority to decide our requests, it seems futile to make additional submissions.

 

[104] This was followed by an exchange of correspondence, which I will summarize as follows:

a) The employer persisted in its opinion that the grievor submitted a new request and maintained its request to make submissions on that new request if the Board allows the grievances.

 

b) On March 31, 2020, the Board allowed the employer’s request to present arguments on the bargaining agent’s rebuttal and ordered that they be made no later than April 7, 2020, and that the bargaining agent would have the opportunity to respond to those arguments, if it wished to, by April 14, 2020.

 

c) The employer then asked that the deadlines be put on hold “[translation] ... until the COVID-19 pandemic subsides ...” because Treasury Board of Canada employees must work from home “[translation] with very few resources”.

 

d) On April 7, 2020, the Board granted the employer’s request to make submissions on the bargaining agent’s rebuttal were it to allow the grievances, and it reiterated that if so, the bargaining agent would have the opportunity to respond to those arguments, and it ordered that the deadlines for the parties’ arguments be set to a later date.

[105] For the noted reasons, I allow the grievances. Thus, in accordance with the order dated April 7, 2020, the employer may present arguments on the bargaining agent’s rebuttal, and the bargaining agent will have the opportunity to respond, if it wishes to.

[106] When this was written, the COVID-19 pandemic had not subsided, and Treasury Board of Canada employees still had to work from home, which obviously made it difficult to set deadlines.

[107] However, the facts behind the first of the grievor’s two grievances now date from more than eight years ago, and the COVID-19 pandemic must not become a pretext for delaying indefinitely the satisfaction of his need for justice.

[108] Therefore, I will not decide at this time the corrective measures the grievor seeks.

[109] For all of the above reasons, the Board makes the following order:

(The Order appears on the following page)

IX. Order

[110] The grievances are allowed.

[111] The Board will decide the corrective measures the grievor seeks after receiving the employer’s written submissions, to which the bargaining agent will have the opportunity to respond, if it wishes to.

[112] The deadlines for the parties to send their written submissions to the Board will be determined in consultation with them once they have reviewed this decision.

March 23, 2021.

FPSLREB Translation

Paul Fauteux,

a panel of the Federal Public Sector Labour Relations and Employment Board

 

APPENDIX

 

RELEVANT CLAUSES OF THE COLLECTIVE AGREEMENT

CITED BY THE PARTIES

 

ARTICLE 1

PURPOSE AND SCOPE OF AGREEMENT

 

1.01 The purpose of this Agreement is to maintain harmonious and mutually beneficial relationships between the Employer, the Union and the employees and to set forth herein certain terms and conditions of employment for all employees described in the certificates issued by the Public Service Labour Relations Board on March 13, 2001 covering employees in the Correctional Group.

 

1.02 The purpose of this collective agreement is to establish, within the framework provided by law, orderly and efficient labour relations between the Employer, the Union and employees and to define working conditions aimed at promoting the safety and well-being of employees.

 

Moreover, the parties to this agreement also share the goal that the people of Canada will be well and efficiently served.

 

...

 

PART 3 - WORKING CONDITIONS

 

...

 

ARTICLE 30

OTHER LEAVE WITH OR WITHOUT PAY

 

...

 

30.03 Maternity Leave Without Pay

 

(a) An employee who becomes pregnant shall, upon request, be granted maternity leave without pay for a period beginning before, on or after the termination date of pregnancy and ending not later than eighteen (18) weeks after the termination date of pregnancy.

(b) Notwithstanding paragraph (a):

(i) where the employee has not yet proceeded on maternity leave without pay and her newborn child is hospitalized

or

(ii) where the employee has proceeded on maternity leave without pay and then returns to work for all or part of the period during which her newborn child is hospitalized,

the period of maternity leave without pay defined in paragraph (a) may be extended beyond the date falling eighteen (18) weeks after the date of termination of pregnancy by a period equal to that portion of the period of the child’s hospitalization during which the employee was not on maternity leave, to a maximum of eighteen (18) weeks.

(c) The extension described in paragraph (b) shall end not later than fifty-two (52) weeks after the termination date of pregnancy.

(d) The Employer may require an employee to submit a medical certificate certifying pregnancy.

(e) An employee who has not commenced maternity leave without pay may elect to:

(i) use earned vacation and compensatory leave credits up to and beyond the date that her pregnancy terminates;

(ii) use her sick leave credits up to and beyond the date that her pregnancy terminates, subject to the provisions set out in Article 31, Sick Leave With Pay. For purposes of this subparagraph, the terms “illness” or “injury” used in Article 31 Sick Leave With Pay, shall include medical disability related to pregnancy.

(f) An employee shall inform the Employer in writing of her plans for taking leave with and without pay to cover her absence from work due to the pregnancy at least four (4) weeks in advance of the initial date of continuous leave of absence during which termination of pregnancy is expected to occur unless there is a valid reason why the notice cannot be given.

(g) Leave granted under this clause shall count for the calculation of “continuous employment” for the purpose of calculating severance pay and “service” for the purpose of calculating vacation leave. Time spent on such leave shall count for pay increment purposes.

 

30.04 Maternity Allowance

 

(a) An employee who has been granted maternity leave without pay shall be paid a maternity allowance in accordance with the terms of the Supplemental Unemployment Benefit (SUB) Plan described in paragraphs (c) to (i), provided that she:

 

(i) has completed six (6) months of continuous employment before the commencement of her maternity leave without pay,

(ii) provides the Employer with proof that she has applied for and is in receipt of maternity benefits under the Employment Insurance Act or Québec Parental Insurance Plan in respect of insurable employment with the Employer,

and

(iii) has signed an agreement with the Employer stating that:

(A) she will return to work on the expiry date of her maternity leave without pay unless the return to work date is modified by the approval of another form of leave;

(B) following her return to work, as described in section (A), she will work for a period equal to the period she was in receipt of maternity allowance;

(C) should she fail to return to work in accordance with section (A), or should she return to work but fail to work for the total period specified in section (B), for reasons other than death, lay-off, early termination due to lack of work or discontinuance of a function of a specified period of employment that would have been sufficient to meet the obligations specified in section (B), or having become disabled as defined in the Public Service Superannuation Act, she will be indebted to the Employer for an amount determined as follows:

(allowance received) X (remaining period to be worked following her return to work)

[total period to be worked as specified in (B)]

however, an employee whose specified period of employment expired and who is rehired in any portion of the core public administration as specified in the Public Service Labour Relations Act within a period of ninety (90) days or less is not indebted for the amount if her new period of employment is sufficient to meet the obligations specified in section (B).

(b) For the purpose of sections (a)(iii)(B), and (C), periods of leave with pay shall count as time worked. Periods of leave without pay during the employee’s return to work will not be counted as time worked but shall interrupt the period referred to in section (a)(iii)(B), without activating the recovery provisions described in section (a)(iii)(C).

(c) Maternity allowance payments made in accordance with the SUB Plan will consist of the following:

(i) where an employee is subject to a waiting period of two (2) weeks before receiving Employment Insurance maternity benefits, ninety-three per cent (93%) of her weekly rate of pay for each week of the waiting period, less any other monies earned during this period,

and

(ii) for each week that the employee receives a maternity benefit under the Employment Insurance or the Québec Parental Insurance Plan, she is eligible to receive the difference between ninety-three per cent (93%) of her weekly rate of pay and the maternity benefit, less any other monies earned during this period which may result in a decrease in her maternity benefit to which she would have been eligible if no extra monies had been earned during this period.

(d) At the employee’s request, the payment referred to in subparagraph 42.02(c)(i) will be estimated and advanced to the employee. Adjustments will be made once the employee provides proof of receipt of Employment Insurance or Québec Parental Insurance Plan maternity benefits.

(e) The maternity allowance to which an employee is entitled is limited to that provided in paragraph (c) and an employee will not be reimbursed for any amount that she may be required to repay pursuant to the Employment Insurance Act or the Parental Insurance Act in Québec.

(f) The weekly rate of pay referred to in paragraph (c) shall be:

 

(i) for a full-time employee, the employee’s weekly rate of pay on the day immediately preceding the commencement of maternity leave without pay,

 

(ii) for an employee who has been employed on a part-time or on a combined full-time and part-time basis during the six (6) month period preceding the commencement of maternity leave, the rate obtained by multiplying the weekly rate of pay in subparagraph (i) by the fraction obtained by dividing the employee’s straight time earnings by the straight time earnings the employee would have earned working full-time during such period.

 

(g) The weekly rate of pay referred to in paragraph (f) shall be the rate to which the employee is entitled for her substantive level to which she is appointed.

 

(h) Notwithstanding paragraph (g), and subject to subparagraph (f)(ii), if on the day immediately preceding the commencement of maternity leave without pay an employee has been on an acting assignment for at least four (4) months, the weekly rate shall be the rate she was being paid on that day.

(i) Where an employee becomes eligible for a pay increment or pay revision while in receipt of the maternity allowance, the allowance shall be adjusted accordingly.

(j) Maternity allowance payments made under the SUB Plan will neither reduce nor increase an employee’s deferred remuneration or severance pay.

...

30.06 Parental Leave Without Pay

(a) Where an employee has or will have the actual care and custody of a new-born child (including the new-born child of a common-law partner), the employee shall, upon request, be granted parental leave without pay for a single period of up to thirty-seven (37) consecutive weeks in the fifty-two (52) week period beginning on the day on which the child is born or the day on which the child comes into the employee’s care.

(b) Where an employee commences legal proceedings under the laws of a province to adopt a child or obtains an order under the laws of a province for the adoption of a child, the employee shall, upon request, be granted parental leave without pay for a single period of up to thirty-seven (37) consecutive weeks in the fifty-two week (52) period beginning on the day on which the child comes into the employee’s care.

(c) Notwithstanding paragraphs (a) and (b) above, at the request of an employee and at the discretion of the Employer, the leave referred to in the paragraphs (a) and (b) above may be taken in two (2) periods.

(d) Notwithstanding paragraphs (a) and (b):

(i) where the employee’s child is hospitalized within the period defined in the above paragraphs, and the employee has not yet proceeded on parental leave without pay,

or

(ii) where the employee has proceeded on parental leave without pay and then returns to work for all or part of the period during which his or her child is hospitalized,

the period of parental leave without pay specified in the original leave request may be extended by a period equal to that portion of the period of the child’s hospitalization while the employee was not on parental leave. However, the extension shall end not later than one hundred and four (104) weeks after the day on which the child comes into the employee’s care.

(e) An employee who intends to request parental leave without pay shall notify the Employer at least four (4) weeks in advance of the commencement date of such leave.

(f) The Employer may:

(i) defer the commencement of parental leave without pay at the request of the employee;

(ii) grant the employee parental leave without pay with less than four (4) weeks’ notice;

(iii) require an employee to submit a birth certificate or proof of adoption of the child.

(g) Leave granted under this clause shall be counted for the calculation of “continuous employment” for the purpose of calculating severance pay and “service” for the purpose of calculating vacation leave. Time spent on such leave shall count for pay increment purposes.

30.07 Parental Allowance

a) An employee who has been granted parental leave without pay, shall be paid a parental allowance in accordance with the terms of the Supplemental Unemployment Benefit (SUB) Plan described in paragraphs (c) to (i), providing he or she:

(i) has completed six (6) months of continuous employment before the commencement of parental leave without pay,

(ii) provides the Employer with proof that he or she has applied for and is in receipt of parental, paternity or adoption benefits under the Employment Insurance or Québec Parental Insurance Plan in respect of insurable employment with the Employer,

and

(iii) has signed an agreement with the Employer stating that:

(A) the employee will return to work on the expiry date of his/her parental leave without pay, unless the return to work date is modified by the approval of another form of leave;

(B) following his or her return to work, as described in section (A), the employee will work for a period equal to the period the employee was in receipt of the parental allowance, in addition to the period of time referred to in section 30.04(a)(iii)(B), if applicable;

(C) should he or she fail to return to work in accordance with section (A) or should he or she return to work but fail to work the total period specified in section (B), for reasons other than death, lay-off, early termination due to lack of work or discontinuance of a function of a specified period of employment that would have been sufficient to meet the obligations specified in section (B), or having become disabled as defined in the Public Service Superannuation Act, he or she will be indebted to the Employer for an amount determined as follows:

(allowance received) X (remaining period to be worked

following his/her return to work)

[total period to be worked

as specified in (B)]

 

however, an employee whose specified period of employment expired and who is rehired in any portion of the core public administration as specified in the Public Service Labour Relations Act within a period of ninety (90) days or less is not indebted for the amount if his or her new period of employment is sufficient to meet the obligations specified in section (B).

(b) For the purpose of sections (a)(iii)(B), and (C), periods of leave with pay shall count as time worked. Periods of leave without pay during the employee’s return to work will not be counted as time worked but shall interrupt the period referred to in section (a)(iii)(B), without activating the recovery provisions described in section (a)(iii)(C).

(c) Parental Allowance payments made in accordance with the SUB Plan will consist of the following:

(i) where an employee is subject to a waiting period of two (2) weeks before receiving Employment Insurance parental benefits, ninety-three per cent (93%) of his/her weekly rate of pay, for each week of the waiting period, less any other monies earned during this period;

(ii) for each week the employee receives parental, adoption or paternity benefits under the Employment Insurance or the Québec Parental Insurance Plan, he or she is eligible to receive the difference between ninety-three per cent (93%) of his or her weekly rate of pay and the parental, adoption or paternity benefit, less any other monies earned during this period which may result in a decrease in his/her parental, adoption or paternity benefit to which he or she would have been eligible if no extra monies had been earned during this period;

(iii) where an employee has received the full eighteen (18) weeks of maternity benefit and the full thirty-two (32) weeks of parental benefit under the Québec Parental Insurance Plan and thereafter remains on parental leave without pay, she is eligible to receive a further parental allowance for a period of two (2) weeks, ninety-three percent (93%) of her weekly rate of pay for each week, less any other monies earned during this period;

(d) At the employee’s request, the payment referred to in subparagraph 30.07(c)(i) will be estimated and advanced to the employee. Adjustments will be made once the employee provides proof of receipt of Employment Insurance or Québec Parental Insurance Plan parental benefits.

(e) The parental allowance to which an employee is entitled is limited to that provided in paragraph (c) and an employee will not be reimbursed for any amount that he or she is required to repay pursuant to the Employment Insurance Act or the Parental Insurance Act in Québec.

(f) The weekly rate of pay referred to in paragraph (c) shall be:

(i) for a full-time employee, the employee’s weekly rate of pay on the day immediately preceding the commencement of maternity or parental leave without pay;

(ii) for an employee who has been employed on a part-time or on a combined full-time and part-time basis during the six (6) month period preceding the commencement of maternity or parental leave without pay, the rate obtained by multiplying the weekly rate of pay in subparagraph (i) by the fraction obtained by dividing the employee’s straight time earnings by the straight time earnings the employee would have earned working full-time during such period.

(g) The weekly rate of pay referred to in paragraph (f) shall be the rate to which the employee is entitled for the substantive level to which she or he is appointed.

(h) Notwithstanding paragraph (g), and subject to subparagraph (f)(ii), if on the day immediately preceding the commencement of parental leave without pay an employee is performing an acting assignment for at least four (4) months, the weekly rate shall be the rate, the employee was being paid on that day.

(i) Where an employee becomes eligible for a pay increment or pay revision while in receipt of parental allowance, the allowance shall be adjusted accordingly.

(j) Parental allowance payments made under the SUB Plan will neither reduce nor increase an employee’s deferred remuneration or severance pay.

(k) The maximum combined maternity and parental allowances payable under this collective agreement shall not exceed fifty-two (52) weeks for each combined maternity and parental leave without pay.

[Emphasis added]