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HomeMy WebLinkAbout1991-1412.James.92-01-31 ONTARIO EMPLOY~:S DE LA COURONNE CROWN EMPLOYEES DE t.'ONTARIO GRIEVANCE C~OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 ~UNOAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/T~_L~.:PHONE. (4 ;6) 326- ~388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO}. MSG 128 FACS{MILE/T~LECOPlE : [4 16) 326-r$96 1412/91 IN THE )lATTER OF AN ARBI'TI~TION THE CROWN EHPLOYEES COLLECTIVE B;LRGA'rNING ACT Before THE GRIEVANCE SETTLEHEI~"T BOARD BETWEEN OPSEU (James) Grievor . - alld- The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: S. Stewart Vice-Chairperson I. Thomson Member A. Merritt Member FOR THE M. Doyle GRI EVOR Counse 1 Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE R.M. Barrette EMPLOYER Legal Services Branch Management Board of Cabinet HEARING December 16, 1991 DECISION The grievor, Mr. D. James, is employed as a Correctional Officer at Walkerton Jail. In a grievance dated July 24, 1991, Mr. James takes issue with the Employer's decision to deny him parental leave. Mr. James had requested six weeks of parental leave over three separate two week, non-consecutive periods in June, July and August, 1991. It was the Employer's position that this Board is without jurisdiction to hear and determine the grievance on the basis that the grievance involves the issue of the enforcement of the provisions of the ~Employment Standards Ac~t rather than a provision of the Collective Agreement. It was the Union's position that the parties have specifically incorporated the provisions of the Employment Standards Act relating to parental leave into the Collective Agreement and that there was no issue of the independent enforcement of legislation raised by this grievance. Counsel were in agreement that the Board ought to determine this preliminary issue of its jurisdiction prior to hearing any evidence with respect to the merits of the grievance. The relevant provisions of the Collective Agreement are the following: ARTICLE A - NO DISCRIMINATION/EMPLOYMENT EQUITY. A.1 There shall be no discrimination practised 2 by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 9(1) of the Ontario Human Rights Code (OHRC) · ARTICLE 50 - MATERNITY LEAVE 50.1 A Deputy Minister shall grant leave-of-absence without pay and without accumulation of credits for the purpose of childbirth to a female employee who has served more than one (1) year including service as a Crown employee immediately prior to her appointmen{ to the civil service. 50.2 The leave of absenc'e shall be in accordance with the provisions of the Employment Standards Act. 50.3.1 An employee entitled to maternity leave under this Article, who provides the Employer with Proof that she has applied for and is eligible to receive unemployment insurance benefits pursuant to Section 30, Unemployment Insurance Act, 1971, shall be paid an allowance in accordance with the Supplementary Unemployment Benefit Plan. 50.5 If requested, in writing, at least four. (4) weeks prior to the date of expiry of her maternity leave, an employee shall be entitled to a leave-of-absence without pay of up to six (6) months. At the time the parties entered into the current Collective Agreement the Employment Standards Act made no reference to parental leave'. Part Xi of the Act in existence at that time is entitled "Pregnancy Leave" and provided for a leave of absence for a pregnant woman. On December 20, 1990, amendments to Part XI of the Employment 3 Standards Act were given royal assent. The new heading of Part XI is entitled "Pregnancy and Parental Leave"~ Section 35 of the Act defines parental leave as "a leave of absence under subsection 38a{1)" and pregnancy leave as leave of absence under subsection 36(1)". Section 36(1) provides for leave for an employee who is pregnant, of necessity referring to a woman. Section 38a(1) provides that "an employee", referring to either a man or a woman, is entitled to parental leave. The Act outlines criteria for entitlement to leave and the length of leave, matters which are not of assistance in the determination to be made here. Counse~ for the EmpLoyer agreed with counsel for the union that the reference to The Employment Standards Act contained in Article 50.2 would encompass any changes made to that legislation during the term of the Collective Agreement. However, it was Ms. Barrette's submission that the reference to The Employment Standards Act contained in Article 50.2 of the Collective Agreement is only to the leave referred to in Article 50.1, leave "...for the purpose of childbirth to a female employee...". Ms. Doyle argued that the reference to The Employment Standards Act in Article 50.2 ought properly to be construed to refer to both parental leave and pregnancy leave under the amended provisions of the Employment Standards Act. Ms. Doyle submitted t~hat it was significant that Article 50 is e~titled "maternity leave" rather than "pregnancy leave", which is the heading of Part XI of the Employment Standards Act which was in existence at the time the Collective Agreement was entered into. She also referred to Article 50.5, the provision reproduced above, which provides for an additional six month leave following an employee's maternity leave, in support of t%er position that Article 50 of the Collective Agreement deals with more than what is described as pregnancy leave under the Employment Standards Act. in Ms. Doyle's submission, the provisions of Article 50 of the Collective Agreement contemplate an integrated, ' comprehensive scheme with respect to entitlement to. leaves of absence an employee may be entitled to in connection with the birth and care of a child. As well, Ms. Doyle submitted that the current provisions of the Employment Standards Act also establish an integrated, comprehensive scheme with respect to entitlement to leave in connection with the birth and care of a child and that the acceptance of t~e Employer's position would result in a disjointed and piecemeal application of that comprehensive scheme. Ms. Doyle argued that to allow a female employee to enforce rights under the Employment Standards Ac__~t at arbitration while depriving a male employee of the same opportunity would be in violation of Article A.1 of the Collective Agreement which prohibits discrimination on the basis of sex. The essence of the dispute between the parties is the effect to be given to Article 50.2 of the Collective Agreement. The issue to be determined is whether Article 50.2 of the Collective Agreement adopts only the provisions of the Employment Standards Act with respect to pregnancy leave, as the Employer contends, or, whether it also incorporates the parental leave provisions, as the Union contends. After a review of the relevant statutory and Collective Agreement provisions and consideration of the submissions of counsel it is our conclusion that Article -- 50.2 does not incorporate the provisions of the Employment Standards Act relating to parental leave and that the Employer's argument with respect to our jurisdiction must succeed. In our view, the reference to "the leave-of-absence" contained in Article 50.2 of the Collective Agreement is clearly to the leave-of-absence just previously referred to in Article 50.1, the leave of absence that is granted "for the purpose of childbirth to a female employee". We do not find the fact that the heading of Article is entitled "Maternity Leave" nor t'he fact that additional leave is provided for in Article 50.5 of the Collective Agreement to cause us to question this conclusion. Article 50.2 is clearly intended to apply to the leave just referred to in Article 50.1, which is pregnancy leave under the Employment Standards ACct. The provisions for parental leave that now exist under the Employment Standards Act did not exist at the time the Collective Agreement was negotiated and thus the lack of a specific reference to parental leave in the Collective Agreement is not surprising. However, it is our view that the language chosen by the parties in Article 50.2 with respect to the Employment Standards Act is very specific and cannot be given the broad interpretation that Ms. Doyle urges upon us. We cannot accept Ms. Doyle's submission that pregnancy and parental leave are part of a ' comprehensive system of leave under the Employment o Standards Act that cannot be segregated. While we agree that there is an integrated system with respect to the operation of the two types of leave, pregnancy leave and parental leave are specifically defined under the provisions of the Employment Standards Act. The fact that pregnancy leave and parental leave may be taken by two different persons underscores their distinctive character. Ms. Barrette referred the Board to the decision of the trial division of the Federal Court in Schachter v the Queen (1988), 52 D.L.R. (4th) 525 where, at p. 545, maternity benefits are described as "quite different" from parental leave benefits under the Unemployment Insurance Act, 1971. We agree with Ms. Doyle's submission that the 7 ~ ~ distinction made in' th~s case, dealing with a different statute, is not of a great deal of'assistance in the determination to be made here. However, given the distinction between these two types of leave in the Employment Standards Act we are compelled to reject Ms. Doyle's submission that these two types of leave cannot be segregated. As well, we cannot accept Ms. Doyle's submission that to reject the Union's submission would result in a violation of the prohibition against discrimination on the basis of sex contained in Article A'.i of the Collective Agreement. The basis for this argument is that if ~he Employer's position is accepted, a female employee may enforce a right to parental leave under Article 50.5 of the Collective Agreement while a male employee may not, notwithstanding the fact that the Employment Standards Act recognizes that both female and males are entitled to parental leave under that Act. Article 50.5 of the Collective Agreement clearly has application only to female employees, and provides for an additional unpaid leave following the expiry of her maternity leave under Article 50.1. Because a female employee has certain rights with respect to a leave of absence arising ~rom the birth of a child that a male 8 employee is not entitled to does not compel the conclusion that the male employee has been discriminated against on the basis of sex. While the ability to give birth is determined by a p~rson's sex, rights flowing from an event that only one sex has the' biological capacity to experience cannot be said to discriminate against male employees on the basis of sex. While the leave under Article 50.5 may be characterized as parental leave, the purpose of which is to provide for the care and nurturing of a child that either spouse could provide, the parties have clearly chosen t° extend this right .under the Collective Agreement to the female parent who has given birth~ The existence of a benefit negotiated by the parties to be solely available to female employees under Article 50.5 of the Collective Agreement and the ensuing right of only a female employee to enforce such a right under the Collective Agreement does not lead us to conclude that Article A.1 of the Collective Agreement has been violated. This provision does not detract from the right of a male employee to enforce any rights that he may be entitled to by virtue of the provisions of the Employment Standards Act. Given the fact that we have concluded that Article 50.2 of the Collective Agreement does not have the effect of incorporat-ing the provisions of the Employment Standards Act in relation to parental leave it is our conclusion that 9 it is not within our jurisdiction to purport to enforce those provisions. While there are circumstances in which it is clearly appropriate for this Board to consider legislation other than the legislation from which its jurisdiction is derived in interpreting and applying provisions of a Collective Agreement, this Board has consistently held that it is beyond its jurisdiction to enforce a "naked" statutory claim. Given our conclusion that Article 50.2 refers only to pregnancy leave, this claim that the provisions of the Employment Standards Act with respect to parental leave have been violated must be - considered to be a "naked" statutory claim. There is a scheme under the Employment Standards Act which exists to resolve disputes between employers and employees with respect to rights conferred under that legislation which the grievor may have recourse to. For these reasons, it is our conclusion that the Employer's preliminary objection to our jurisdiction must be allowed. Accordingly, the grievance is dismissed. Dated at Toronto, this 31 day of January, 1992. S. L. Stewart - Vice-Chairperson i. Thomson - Member · I A. Merritt - Member