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HomeMy WebLinkAbout1985-1482.Conway et al.87-08-14IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMRNT BOARD BETWEEN: OPSEU (Mrs. Ruth-Ann Conway et al) Griever - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of Colmnunity and Social Services) and (Ministry of Natural Resources) and (Ministry of Revenue) %npIoyers BEFORE: D. Rates J. HcHanus A. Stapleton Vice-Chairman Hember Member FOR TRE GRIEVOR: J. Masher GXll%3el Gowling and Henderson Barristers and Solicitors FOR THE EMPLOYER: L. H. McIntosh Counsel Crown Law Office Civil Ministry of the Attorney General June 24, 1987 HEARING: File Nos. 1482185 1497fa5 1498’185 1534ta5 0087186 - 1 - Decision There were five grievances referred to arbitration contesting the employer's interpretation and application of Article 50.7 of the collective agreement. The parties consented to the consolidation of these grievances in order that they be heard together. The facts of each grievance were made the subject of an agreed statement. It suffices for our purposes to merely outline the salient features of these facts that precipitated the parties' dispute. Apparently, each griever had applied for and was granted maternity leave without pay for the seventeen week period provided for in Article 50 of the collective agreement. And while absent from work during the period of the grievers' leave they were paid the SUB allowance ("top up") pursuant to Article 50.3.1.2 of the collective agreement over and above the monies they received pursusnt to The Unemolovment Jnsurance Act. The SUB allowance was calculated in accordance with Article 50.3.1.2 on the basis of the rate paid each griever effective "on the last day worked prior to the commencement of the maternity leave". There is no'dispute that as of the grievers' last day worked the employer had complied with the requirements of Article 50.3.1.2 in according the grievora' the SUB allowance. At ell material times the employer and ttade‘union were engaged in the negotiation of a renewed collective agreement. -2- Article SO.7 "ae introduced into the collective agreement aa m result of these negotiationa. The eattlament of the collective agreement aleo included a salary increase made retroactive to January 1, 1984. The period in which the .aslary increase WB made effective covered the period during which each griever vaa on maternity leave. Article 50.7 reads as follows: 50.7 Rotwithetanding 50.3.2(s) and (b), and 50.3.3, effective Jsnusry 1, 1984, the Supplement Unemployment Benefit shall be baaed on the salary the employee use receiving on the last day worked prior to the commencement of the maternity leave, including any retroactive ealsry adJuetnent to which she may become entitled. The employer made no adJuetment to the grievore' SUB allowance reflecting the salary increase. Only those employee0 whose last day of work prior to the commencement of their maternity leave, effective the increase, were extended a retroactive salary adJuetment. In other worde. the employer restricted the salary sdJuatment to thoee employees whoee last day worked coincided with the effective date of the increase. The grievore, accordingly, who already were on maternity leave at the time of the increase, were not given the benefit of SUB adjustment. Rather, their increases were implemented upon their return to work after completing their leave. For purpoeee of this case it is aleo important to note that employeea who might have been on eick leave under the Short Term Sicknaee Plan provided under Article 52 of the collective agreement for a comparable period of time would have received, irrespective of hie or her laet day worked, a retroactive edJuetment to their "eick leave pay reflecting the increaee. The trade union allegee that the employer's refusal to -3- accord the grievore an adjustment to their SUB ellouance during the period of their maternity leave ~8s in violetion of the express lenguage of Article 50.7. In thst regard, the union claimed that the language was clear end unambiguoue end thereby did not warrant the admissibility of any extrinsic evidence es an aid to the provision's interpretation. The employer sgreed with this proposition but insisted, in the alternative, that if the provision was ambiguous. the Board should rely on the. extrinsic evidence it was prepared to adduce in order to resolve the ambiguity. In the latter regard, notwithstanding the extrinsic evidence we permitted tha employer to adduce <sUbJect to the trade union's obJection) we have been satisfied thst no ambiguity, Rstent or latont, was disclosed to.warrant our reliance on that evidence se en aid to interpretation (see: & International Brotherhood of Electric81 Workers. Local 2345 et 81. * 84 CLLC II 14, 024 (CA)). Accordingly, the disposition of the first issue raised herein turns on the plain meaning of Article 50.7 end, more particularly, the interpretation of the phrase "on the lest day worked prior to the commencement of the maternity lesve"; The alternative allegation advanced by the trade union suggested that the employer's application of Article 50.7 excluding employees on maternity lesve from the retroactive EdJUstm%nt whose lest day worked did not coincide with the negotiated increaee constituted 8 violation of Section 4 of The Human Rlqhta Code. In order to.sppreciate the Union's allegation it is common ground that employeea (both male end -4 - female) who, in like circumstancea to the grievora' while on maternity leave, were receiving benefits under the short term sickness plan received a retroactive adjustment to their psy irreepective of their lasf. day worke~d relative to &ho increase. Accordingly, it wan alleged that the employer thereby engaged in the prohibited act of discriminating againat the grievora by reseon of their female ser. Section 4 of The Human Riahta Code (1981) reeds ae followa: 4.0(l) Every 'person haa a right to equal .treatment with respect to employment without diecrimination because of race, snceetry, place of origin, colour, ethnic origin, citizenship. creed, end sge, record of offences, marital etatue. family statue or handicap. Should the trade union'e alternative argument succeed, we' wete aeked "to read down" that portion of Article 50.7 that represented an impediment to conferring equal treatment with respect to the grievorr' receipt of the retrosctive aalsry adJUstm%nt to cover the period of their maternity leave. That la to esy, we were asked to elininste the phrase contained in Article 50.7 requiring for purposes of calculating the retroactive EdJUstment baaed on attendance "on the last dsy worked prior to the commence of the maternity leave". In other words that phrase constituted the illicit qualification to conferring upon the grievers equal treatment relative to their colleagues on sick leave with respect to the retroactive adJUstm%nt to their SUB 8llowEnC%. In reeolving thia dispute. the Board intends to deny the tra,de union's grievances on each ground advanced by it alleging violation of the grievers' entitlementa pursuant to Article 50.7. In order to appreciate the reasone for our dispoeltion of - s - the grievances in this manner we hold it relevant et this 1 I Juncture of the decision to discuss our appreciation of the purpose and ObJective of Article 50 of the collective agreement in the light of the,relevant provisions of The -Ennlovment Standarda Act as they mey relate to maternity leave. It is common ground that the benefits extended under Article SO sre intended to both conform and indeed enhance the employment benefits granted women for purposes of childbirth that are ensconced in The Emblovment Standards Act. In that regard Articles '30.1 end 50.2 of the collective sgreement expressly provide: 50.1 A Deputy Minister shall grant leave-of-absence without pay and without .accunulation of credits for the purpose of, childbirth to a female employee who has served more then one (1) year including service as 8 Crown employee immedistely prior to her appointment to the civil service. 50.2 The leave-of-absence ehall be in accordsnce with the proviriona of The Employment Standards Act. It is clear that The wee designed to confer benefits upon women in prepsration for childbirth end the sftermath that wes designed to cure the discrimination with respect to employment that they otherwise incurred before the introduction of the Legislstion. For our purposes women I / encountered two significant disadvantages with respect to the employment relationehip when shout to have a.child. Firstly, women either were confronted with termination by their employer or were compelled to resign their positions when because of the discomfort of the pregnancy or in order to prepare for the child birth experfence they could no longer adequately discharge the -6- duties of their position. Indeed it waa often in their best interests. having regsrd to the exieting Legielative structure, to endure termination in order to eeeure more favourable unemployment insurance benefits than had they simply quit the employ of their employer before giving birth. In that sane%, there wee minimal or no Job eecurity provided the employee who required a prolonged abeence from work in order to have her baby end to nurture the baby efter birth.: Indeed, it wee clearly at the employar'a discretion sa to whether it wea prepared to rehire or reinstate the employee to the position ehe hsd occupied after the birthing experience wee completed. And, this rsisea the second disadvantage. The female employee who wes reinstated was extended no guarantee that upon her return to work the benefits (or for that matter her previous Job) that had accrued prior to leaving the employer's employ, much os her salary end eeniority, would be preserved. In other words, she literally could be treated as 8 new employee whose past experience would have no merit or relevance with respect to the salary and other benefits she had earned prior to her leaving employment to hsve her child. The introduction of The Emvlovment Standards Act cured those two apparent disadvantages ina very dramatic manner. With respect to the pregnant woman's Job eecurity the employee, as e matter of right, was entitled to 8 leave of absence without pay for 8 msximum period of seventeen weeks for the purpoee of child birth (sea Section 36(l)). During the period of maternity leave the employee retained her employment statue. That ie to cay she -7- could neither be terminated nor be required to quit ae e result leaving work for child birth purposes (see Section 35(l)). Secondly, and of more significance to this case, the employee upon her return to work after completion of her lesve, wsa entitled to occupy her previous position or be provided "with alternative work of 8 conpareble nature". And with respect to the continuing viability of her entitlement8 that sccrued from her work anperience pri.or to tsking maternity leave the employer wem required to psy the employee upon her return "at not leea than her wagee et the time of her leave of absence began and without lose of seniority or benefits sccrued to the commencement of her leave of absence". In that respect Section 38(l) of the E.S.A. expressly provides: 38.- (11 An employee who intends to resume her employment on the expiration of a leeve of abeence~grsnted to her under this Pert shell so advise her employer and on her return to work her employer shall reinstate the employee to her position or provide her with alternative work of a comparable nature et not lees then her wages et the time her leave of absence began and without lose of seniority or benefits accrued to the commencement of her leave of absence. A aigni,ficent concomitant to the Emplovment Standards Lesieletion was the OdJUstIkIt made by Parliament to the benefits accruing to employees while on msternity lesve relative to the receipt of benefits under The Unemolovment Insurance &&. It suffices to aay that no longer was the employee required to terminate the employment reletionahip or be terminated in order to receive unemployment ineursnce benefits because of her required absence from work for the purpoee of -8- childbirth. These unemployment insurance benefits that accrued 'to women while on maternity leave reflected a portion of the salsry benefits they would otherwise hsve received had they been terminated. But women no longer had to go through the fictitious etratagem of being terminated in order to receive UIC benefits. As port of the collective bargaining process the parties sgreed to "the top up" benefit that was designed (to the extent permitted b,y UIC legielstion~ to place the employee, for salary purposes, in 8 position she would be in but for the exercise of her maternity lesve benefits. And msny of the gape in benefits created by UIC legislation were to be filled by other benefits including the SUB benefit contained in the collective sgreement. Accordingly Articles 50.3.1 and 50.3.2 of the collective agreement epecificaily provide for the SUB Allowance that is the SUbJect matter of this dispute: 50.3.1 An employee entitled to maternity leave under this Article, who provides the Employer with proof that she has applied for and la eligible to receive unemployment insurance benefits pursuant to Section 30, Unemployment Insurance Act, 1971. rho11 be paid an ellowance in accordsnce with the Supplementary Unemployment Benefit Plan. 50.3.2 In respect of the.period of maternity lesve, payments mode according to the Supplementary Unemployment Benefit Plan will consist of the following: (.a) for the first two (2) weeks, payment8 equivslent to ninety-three percent (93%) of the sctual weekly rate of pay for her claesification, which she was receiving on the lost day worked prior to the commencement of the maternity leave, and I / j -9- I I (b) up to a maximum of fifteen (15) additional weeke, paymenta equivalent to the difference between the sum of the weekly UI benefits the employee ie eligible to receive and any other earnings received by the employee, and ninety-three percent (93%) of the actual weekly rate of pay for her classification, which she was receiving on the laet day worked prior to the commencement of the maternity leave. It is significant to point out that one qualification in the calculation of the SUB allotiance that was inserted into Article 50.3.2 proved ominous for employees on maternity leave in subsequent 'arbitration disputes. Introduced into Article 50.3.2 was the requirement that the SUB allowance be calculated on the basis "of the actual weekly rate of pay of her classification which she'was receiving on the last dav worked Prior to the commencement of maternity leave". Aa a reault, when an employee exercised maternity leave benefits and wae.paid the SUB allowance in accordance with the rate received on the laat day vorked prior to commencing maternity leave ahe was ruled to be foreclosed, by that provision, from receiving any retroactive increase in salary later negotiated by the parties for the period she was on leave. In the two arbitral precedent8 referred to us in Re OPSEU (Doreen M. Jensen) and The Crown in Risht of Ontario (Attorney General) 613/83 (Draper) and Re OPSEU (Shamin Vig) and The 684183 (Samuele) both Arbitration Boards applied etandard arbitral principle6 to the grievore' situations holding that the collective agreement had to expressly provide for retroactivity in order for employees on maternity leave to benefit from the increases. Or, more significantly, the Board "pegged" the grievot’a paymente under the SUB allowance to the rate they received aa of the last - 10 - day worked prior to the commencement of maternity leave. And even when an employee, whoae laeti day worked was prior to her going on maternity leave. coincided with the effective date of .the increase, she was not extended the benefit of the increase retroactively to cover the period of her leave. Article 50.7 wee introduced into the collective agreement as a result of the foregoing arbitration awards. From the trade union'e perspective the design of the amendment was to extend to all employees on maternity leave the retroactive benefit of the salary increase irrespective of whether or not their last day work prior to their taking maternity leave coincided with the increase. And, of course, the employer insisted that the intention of the amendment wae to restrict the retroactive adJuetment to only those .women who were at work on the last day prior to commencing maternity leave at' which tine the increase wae effective. The trade union argued that this Board ehould confer upon Article 50.7 an interpretation that avoida unfairness or causes anomalies se between two categories of women in like circumetancee. In that regard it was alleged to be patently unfair to confer the retroactive adJUatment on an employee whoee last day worked coincided with the effective day of the increase while depriving another employee, in like circumrtancee (who may have taken maternity leave a day after the former), t'he same benefit. Accordingly, it was argued that the preferred approach to interpreting Article 50.7, in the eense that the retroactive adJuatment to the SUB allowance Le to be made to each employee - 11 - "to which she may become entitled", ie to extend to the grievora upon their return to work e lump .sum payment covering the period of their maternity leave. Absent in the trade union's argument wa.s any reference to the meaning we ought to attach to the phraee in Article 50.7 -on the laet day worked prior to the commencement of the maternity leave". And, of course, we are of the view that it ie that phrase that reflects the purpose of the amendment insofar ae it wae designed to cure the shortcoming6 that emerged aa a result of the previous arbitral awards. It appears to ue that because there wae absent a retroactivity provision in the previous collective agreement to extend the benefit of a salary increase to an employee whoee laet.day worked coincided with the increase the parties by virtue of Article 50.7 wanted to provide her with that benefit. Consistent throughout Article 50 is expreaeed the sane principle that the maternity leave SUB allowance ie to be based on an employee'e actual rate of pay a8 of her last day worked prior to commencing maternity leave. It is clear that the arbitration boards' decision6 reflected the agreements' shortcoming in failing to take into account retroactive increaaee that directly impacted upon the SUB entitlement8 of women while on maternity leave whoee Jaet day worked indeed coincided with the salary increaee. Accordingly, Article 50.7. in restricting the benefit of the retroactive adiuetment to employees whose laet day worked, effective the increase, was prior to taking maternity leave, aimply efjirmed the principle that wae intended to be reflected under Article 50.3.2 of the - 12 - collective agreement. In other words, for there employees whose actual salary rate on the last day worked was affected by the increase they received the adJustment. Those employees who were already on maternity leave as of the incraaae continued to receive the same salary in the form of the SUB benefit as of their last day worked. Noreover , the failure of the previous collective'agreement to provide for retroactivity to employees whose last day worked coincided with the salary increase eroded the principle that was established in The EmnloYment Standards Act. In that regard it is important to repeat that the collective agreement's obIective la not only to enhance the benefits provided under the Emolovment Standards. Act but to conform to its terms in the sense that "the leave of absence provisions shall be in accordance with the E.S.A." And, of course, Section 38(l) of the E.S. Act guarantees that a woman shall receive upon her return to work from maternity leave "...not less than the wages at,the time of her leave of absence began or benefits accrued to the commencement of her leave of absence..." From that perspective an employee whose last day worked prior to taking maternity leave who was not given the adJuatnent to her SUB allowance where the salary increase was effective on her last day worked would not be accorded.tha entitled rate of pay she was entitled to receive at the time of her leave of absence. Accordingly, Article 50.7 reflected the parties' efforts to bring the calculation of the SUB allowance in line with the relevant provisions of the E.S.A so that it is aean to conform with its terms. Accordingly. for that reason the trade union's - 13 - initial submission must be reJected.l In dealing with the trade union‘s alternative argument we find no merit to the propoeition that merely because employees while on sick leave for a comparable period to those on maternity leave receive the retroactive adJUstmen+ while those on maternity leave do not, there thereby is established an infringement of Section 4 of The Human Rishts Code.2 In assessing that allegation we are of the opinion that the maternity leave benefits, particularly the SUB allowance as amended by Article 50.7. represent en enhancement of the benefits to the maternity leave without pay provisions provided under the E.S. Act. Moreover, those benefit6 are designed to combat discrimination as opposed to cauaing.diecrinination by reason of sex. When viewed in that context we hold that the employee while on maternity leave is seen to be better off with respect to remuneration than had she been restricted to the allowances provided under UIC. Or more succinctly, Article.50 is intended to provide "top up" benefits where in all other aspecta of an employee's entitlements under the maternity leave benefit 1. We are not saying that the grievers' increases were at risk upon their return to work. They obviously received the increase upon their return to work by operation of the collective agreement. We are saying, however, that in order for the employer to conform to the E.S. Act it had to include as of the employee's last day worked any increase that subsequently occurred in its calculating the SUB allowance. 2. Notwithstanding the divided state of the relevant jurisprudence we shall assume without finding that as y proposition of law there can be discrimination in the conferring of employment benefits because of an'eaployee's pregnant status by reasop of sex. - 14 - structure the collective agreement is intended to conform to the E.S.A. insofar as that Legislation restricts maternity leave toan absence from work "without pay”. It is common ground that only one category of employee is targeted for the benefits of Article 50, namely female employees about to give birth. And, as aforesaid, that benefit is ensconced both under the collective agreement and the E.S.A. for the sole purpose of correcting past discrimination that was visited upon this employee group by reason of a required absence from work for childbirth purposes. The benefits of the Short Term Sickness Plan, however, provide for a leave of absence from work with Pay where the reason for an employee's failure to report is due to impairment due to sickness and/or inJury. And it may very well be, having regard to the nature of the disability,~that the leave of absence with pay, may coincide with theseventeen week period that is accorded employees who exercise maternity l'eave benefits. And, in that regard it is common ground that Article 52 makes no restriction with respect to the receipt of retroactive pay adJuetments irrespective of the employee's last day worked where a salary increase is negotiated during the period of his or her leave ,of absence. The benefits of Article 52 are extended irrespective of gender to all employees in the bargaining unit. And, it is of utmost importance to our disposition of the’trsde union’s allegation to emphasize that Article 52 extends coverage to,female employees who are pregnant the same benefits as other employees at the relevant time of any - 15 - sickness and/or injury that may inhibit them from attending work. Article 52(l) reads as follows: 52.1 An employee who is unable to attend to his duties due to sickness or inJury is entitled to leave-of-abeence with psy a.5 fdllows: (i) with regular salary for the first six (6) working days of absence, (ii> with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar year. The parties submitted several arbitral decisions demonstrating that the purposes ssrved by the sick le~ave benefits of the collective agreement end the maternity leave provisions of the same collective agreement are clearly distinct and different. It msy very well Abe that those arbitral decisions indicate some difficulty in drawing the line between a medical impairment causing a pregnant smployea to take advantage of sick leave as opposed to the discomfort and inconvenience of a healthy pregnancy which might also impair work performance to the extent maternity leave benefits become applicable. Thus in the case of Re Trscev and The Crown in Riqht of Ontario (MinistrY of Correctional Services) (1981) 26 LAC (2d) 302 (Swan> the issue turned on whether an employee &ho was required to give birth to her child by Caesarion delivery use entitled to the benefits of the sick leave provisions of the collective agreement (which provided for full compensation while absent from work) as oppoeed to the maternity leave benefits without pay (there being no SUB allowsncej of the ssnie - 16 - collective egreement. In weighing the expert medical evidence the arbitrator noted thst e minimum portion of the seventeen week period of the leave of absence while on maternity leave addresses itself to sctusl impairment from attending work. Indeed, it was scknowledged that even in the case of Caesarian delivery, es opposed to the normal vaginal delivery, impairment in the performonce of work constituted e minimum portion of the actual disability relative to s healthy pregnancy brought to term. Accordingly, the implication of the decision suggested thst the protracted period of maternity leave wee designed to serve other purposes, inclusive of the nurturing of the newborn, then as e reason for &protracted absence from work due to impairment csuaed by’ the delivery. Accordingly, it was concluded that the maternity lesve benefit without pey was more applicable to the griever's circumstances than to sick leave with pey. The erbitrstor noted: Althouh we have supporting medical evidence, we think we could fairly take judicisl <or qussi-judicial) notice that childbirth may be attended by physics1 disability ranging from mere temporary discomfort, in e happy ma3ority of cases, to the death of the mother, in e tragic but diminishing minority of cases. The griever's delivery of her child wes of a form which, her gynecologist testified, is now ueed in about 20% of all childbirth cases, a percentage which has rapidly increased in recent yesrs. He estimated hospitsl recovery from Ed caesarean section as about 7 days. while recovery from normal childbirth la sbout 5 dsye. Although the medical evidence wes not explicit, we accept thst recovery sfter the term of hospitalimation from such en operation would aleo be extended beyond thst for normal childbirth. We note, however, that s.36(2) of the Enolovment Standards Act provides for 0 leave of up to 6 weeks after delivery of the child, e period which, on the surface et lesst, appears to eubmerge sny difference in the. hospital end post-hospitalization recovery periods for csesarean end normal deliveries.. But the reel resolution of this case lies elsewhere. +a parties have provided for differential trestment of - 17 - "childbirth" on the one hand, and “sickness or iniurv" on the other. As we have alreadv determined. the two exDreeeions are mutually exclusive. althouqh characterization of a Darticular case as one or the other cannot denend merelv won the fact of Dreqnancv of the emolovee involved. Neverthelees. the "8iCkna88 or inlurv" provieion ia not desianrd a8 a reward or recomDense for pain. sufferina or trauma: it is onlv a Drovision calculated to Drovide for lost earninoe in 8Decific circumatancee. circumetancee v ich must h 81s we have undertaken. exclude earninas lost “for the DurDoae of childbirth". emDha8i8 added It is clear that where a collective agreement provide8 for both maternity leave benefit8 and for sick leave benefit8 and the reaeona for the employee's leave of absence ie for the purpose of childbirth the benefit8 of the former provision8 are applicable a8 opposed to the latter even though the sick leave benefit package may appear to confer more generous benefits than the maternity leave provisions. And it ie important to note in this case that the eituatione that prompted the grievore to take maternity leave was with a view to accommodating themselves to the normal delivery and post delivery adJurtment8 of childbirth. There was no suggestion that their condition or circumstance lent itself to any situation that would render the eick leave provisions of the collective agreement relevant or applicable. In light of the foregoing we hold that the trade union.6 reliance on the case in Re Canadian Union of Public EmDlOVeeS. Local 840 and CorDoration of the Boroush of York (1971) 22 LAC 389 (Brown) to be inapplicable to the issue here in dispute. In that case the learned arbitrator determined. in the absence of s maternity leave benefit clause in the collective agreement (and - 18 - at a time when the Employment Standards Act had yet to be legislated), an employee was entitled to rely upon the'sick leave provfeiona of the collective agreement for time off with pay because of her impaired condition during the delivery of her child. In that case it use reasoned that the employee, although technically neither sick nor injured, wa8 di8abled for the purpose8 of uork. It 18 clear that the relevance of the Borouqh of York case to the allegation of a violation of the Human Riahta Code (and this proposition wa8 not challenged by the trade union) should be confined to it8 own facta. A review of the arbitral authorities also demonstrate the principle that employee8 who during their pregnancy are unable to report for vork'due to eickneae or inJury 8re entitled to the benefite of the sick leave with pay provieione of the collective agreement. The ieeue in those cases ueually turne on whether the cause of the impairment preventing.attendance at work 18 or la not pragnancy'related. Accordingly, arbitrators have found that a latent or weak back condition during pregnancy entitled the aggrieved employee to sick leave with pay, or a condition of hypertension causing impairment due to a‘high blood pressure during pregnancy resulted in according the aggrieved employee. with sick leave with pay and aleo a varicose vein condition aggravated by pregnancy resulted in eick leave with pay (see: Re Simon Fraser Univeraitv and Association of Univeraitv of Colleoe EmDlovaes. Local 2 (1983) B LAC (3d) 385 (Hope): Re RetroDolitan Separate School Board and Ontario Enalish Catholic Teachere Association et al. (1984) 16 LAC (3d) ,353 (Adams): Re Hotel Dieu - 19 - of St. Joeeoh HOsDital and Ontario Nurses’ Association (1976) 13 LAC (2d) 177 (O'Shea)). For our purpose8 the task of drawing the line between where the benefita of sick leave terminate and the benefite of maternity leave begin is beat demonetrated in The Simon Fraser Univereitv case, In that case the employer relied upon the provteion of The Emnlovment Standards Act (BC) that allowed it to require an employee to take a leave of absence (due to her pregnant condition) where the performance of her work was materially affected by the pregnancy. In that caee the employee discharged clerical functions while in the University'8 employ but a vulnerable back condition originating in a motor vehicle accident was aggravated during the course of the pregnancy. The employer was prohibited from requiring the employee to take maternity leave where the vulnerable back condition wae directly related to the.motor vehicle accident and was simply weakened by her pregnant condition. Accordingly, without detailing the reasons for the result, the arbitrator states at p. 399: The distinction between eligibility f&r maternity leave a8 opposed to sick leave is the dietinction between limitation8 arieing.from the natural condition of pregnancy and the disabling effect of an fllnena or injury which may be compounded by pregnancy. There appear8 to be a clear consensus in the arbitral authorities that pregnancy is not an illness and is not to be treated as such unless the parties, for convenience. define pregnancy as an illnese for purposes of extending sick-benefits under a particular collective agreement. The 8ubnieaion of the employer would require me to find that the term “pregnancy”. by necessary implication, would extend beyond the natural condition and encompass conditions normally viewed as falling within the category of illness or disability. In ay view it would be necessary to use express language to extend the ordinary meaning of pregnancy where it is used with respect to the capacity to perform work. me condition of beins mreqnant - 20 - is an exoress condition and doe's not encomDaea. in its ordinary meanins. illneeass or disabilities aesoclated with praanancv. whether related or unrelated to the Dreqnancy itself. emDhaSis added But in dealing with the situation of where an employee, while on maternity leave, encounters an illneae or inJury, that would otherwise entitle hereto sick leave with pay, the arbitrator states that the employee, having regard to the ob)ectives of The EmDlovment Standards Act, uould not have access to that benefit. In other word8 while on maternity leave the employee, although her employment status is preserved, the benefits of the collective agreement that would otherwise accrue to her are held in abeyance. Accordingly at p. 400: I find that the employer was in breach of the .collective agreement by reason of it8 failure to grant the application of the griever for sick-leave for the period commencing with her application to the date at which her maternity leave waa due to commence. In making that finding I do not ignore the submission of the employer that the griever waa not denied sick-leave but waa 8een am ineligible for eick-'leave because her condition dictated that she be placed on maternity leave. I aqree with the eubniaeion of the eaolover that were an enDlovee 18 on maternitv leave she has no entitlement to claim sick-benefits. In this case, for instance. if the griever had already commenced her maternity laave at the time of her illneea ehe would not be able to claim sick leave. That is not to sav that an emplovee on maternitv leave ceases to be an emolovee and ceasea to have access to the banefit~Droviaions of the asreement. Quite the contrary. It is to aav that the sDecific benefit of sick-leave will be ausoended durins the period of maternity leave. I$, for instance, an illness or disability which developed during pregnancy was to continue after delivery and beyond the Deriod of maternity leave, the employee would be entitled to claim any benefits available under the agreement. emDhaSia added . -21- In relating the foregoing arbitral precedents, to the allegation made by the trade union charging that the employer engaged in prohibited discrimination on the basia of sex having regard to the more generous retroactive benefit8 accorded employees on eick leave as oppoeed to women on maternity leave I hold two fundamental principles emerge from those casee. It is common ground that, even if an employer's dealing8 with employees on account of their pregnant statue may be grounds for discrimination by reason of sex, it must be established in order for an allegation of a violation of Section 4 of the Human Riqhts Code to succeed thst the pregnant employee has been treated in a manner that is unequal or unfair relative to the treatment conferred .upon other employees in like~circumstancea. And, what the trade union has attempted to a8t8bli8h in meeting that burden is to show that the only reason the grievora while on maternity leave are denied the retroactive increaee where othera in the bargaining unit were given the retroactive increase for similar periods of absence while on sick leave la because they are' pregnant. The benefit structure of the collective agreement in conferring upon the pregnant employee, depending upon her particular situation, entitlements both to eick leave and maternity leave simply demonstrate the inappropriateness of that charge. As hitherto indicated, the arbitral cases suggest tvo fundamental principle8 that undermine that allegation. The first and perhaps most important notion that is demonstrated is that women who are pregnant have equal access to the sick leave - 22 - provision8 of the collective egreement, irreepective of whether the impairment causing the absence from work is associated with the pregnancy, as other employees in the bargaining unit. And in that light we are confident that had the ealary increaee occurred during the period of time that a pregnant employee was exercieing such sick leave benefits then no doubt that employee would be entitled, as every other employee in the bargaining unit would be entitled, to the retroactive increase irrespective of the laet day worked. Or, as the arbitral cases indicate, had that employee been denied the increase by reaeons of her pregnant status then she would have been entitled to eecure that benefit not so much by reason of any prohibited act of di8crimination under The Human Riqhte Codes but rather because of a violation of the ehort term sick leave benefit plan provided under Article 52 of the collective agreement, The second significant principle that emerges from these cases is.the notion that the msternity leave and sick leave provisions of the collective agreement are deeigned to eerve divergent purpoees. We agree to some extent that inpairnent of employment may be common to both situations thereby requiring a leave of absence from work.. But as The Tracy decieion emphasized the purpoeea diverge dramatically after the brief period of the delivery and post delivery adjustments have elapsed. At that point other purposes that are unrelated to ,disability but which are coneistent with motherhood take hold and warrant a continued absence from work. In that regard, it ia of fundamental importance to appreciate that the collective . . , - 23 - agreement, in extending maternity leave benefits, attempts to conform with the values and the purpoees of Tm Standards Act. The obJective of the ESA is to guarantee accrued benefits to the employee who return8 to work after completing her maternity leave only as of the date of the commencement of her maternity leave. And the commencement of her maternity leave, for purposes of calculating the SUB allowance under Articles 50.3.1.1 and 50.7, is as of that employee'8 last day worked. Accordingly, se T e im n h Case demonstrated, all other benefits under the collective agreement, including the retroactivity provision, is intended to be held in abeyance during the maternity leave period. In a real sense; we have attempted to demonstrate, that rather than the pregnant employee incurring praJUdiCi81 or unfair treatment with reepect to the employment benefit structure of the collective agreement relative to other employee8 she really is being accommodated becauee of her pregnant condition in a more favourable manner than other employ&e in th% bargaining unit. The pregnant employee, in other uixde, has access to the benefits of both Article SO and Article 52 of the collective agreement. And, depending upon the specific reason for her absence from work at e particular time during the term of her pregnancy she may plug into either of those benefits. Accordingly, we cannot appreciate how it can be reasonably alleged, given that the obJeCt and purpose of Article. 50 (to the extent it conforms to the E.S.A.). is intended to --- i ;. I.. \ l I - 24 - thwart diecrinination by reason of an employee‘r pregnant statue; constitute8 a breach of fhe Human Riqht.s Code merely because in one aspect of the maternity leave benefit structure an employee is better off being abaent from work by reaeon of eickneee than for childbirth purpoees. For all the foregoing reaeona the grievance ir.denied. Dated thie 14th day of August, 1987.