Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2014 CANADIAN LABOUR REPORTER news Photo: Chris Wattie (Reuters) Clause to be discussed at bargaining table < from pg. 1 pregnancy leave as well as parental leave was discriminatory conduct contrary to the Human Rights Code and Charter of Rights and Freedoms. Pursuant to the collective agree- ment, all parents receive a total of 17 weeks' supplementary employ- ment benefits. Birth fathers and adoptive parents are only eligible to receive the benefits during pa- rental leave. Birth mothers, how- ever, are eligible to receive the ben- efits during either pregnancy or parental leave, not both. "The BCTF, on behalf of our members, took the position that birth mothers are entitled to pa- rental leave benefits on an equal basis with other parents," said BCTF president Jim Iker. "We argued it was discrimina- tory to deny birth mothers paren- tal leave benefits because the two forms of leave serve different pur- poses. One is about the physical impacts of pregnancy and birth on women, the other is for all parents to bond with their child. Women have historically suffered disad- vantage in the workplace due to pregnancy-related discrimina- tion. Denying parental benefits to a woman because she received pregnancy benefits would perpet- uate this disadvantage." The arbitrator agreed, finding the provision in question consti- tuted discriminatory and unequal treatment. No remedy was award- ed, however, because the two par- ties were engaged in collective bar- gaining at the time. The arbitrator ruled the parties should determine how best to remedy the provision through the course of negotiations. The Surrey school board and BCPSEA appealed, arguing the finding of discriminatory treat- ment was not supported by the lan- guage of the collective agreement. The parties asked the B.C. Court of Appeal to set aside the arbitrator's finding of discrimination and dis- miss the grievance. Alternatively, the court was asked to consider an alteration in any potential remedy to ensure cost neutrality. The B.C. Court of Appeal found in favour of the appellants on Sept. 20, 2013. The appeal was allowed, the arbitration set aside and the grievance dismissed. The court could find nothing particularly discriminatory oc- casioned by providing the same supplementary employment ben- efits to birth mothers, birth fathers and adoptive parents. The fact that identical benefits were provided to all parents, the court ruled, ap- peared to constitute equal treat- ment. In fact, the ruling cited the fact that adoptive parents and, subsequently, birth fathers were brought into the supplementary employment benefits scheme in earlier years because of the union's efforts to ensure the collective agreement provided equal treat- ment for all parents. The BCTF appealed this deci- sion and the Supreme Court of Canada's quick call reinstated the original ruling of the arbitrator. "The Court of Appeal erred in failing to give deference to the ar- bitrator's interpretation of the col- lective agreement and in failing to recognize the different purposes of pregnancy benefits and paren- tal benefits," the Supreme Court of Canada's judgement reads. "The arbitrator was entitled to reach the conclusions that he did and we see no reason to interfere with the remedy." But because the arbitrator did not make any remedial order — with the expectation the par- ties would resolve the provision through the course of collective bargaining — the employer is left only with the knowledge there can be no discrimination in the en- dowment of supplementary em- ployment benefits. This leaves the parties to the collective agreement to negotiate replacement, non-discriminatory provisions. "There are various approaches the parties may take… as there is no provincial language in this area and individual school district collective agreements differ," said Deborah Stewart, senior human resources consultant for the BCP- SEA. "In this case, the local parties must revisit the language in light of the Supreme Court of Canada decision and re-negotiate. All em- ployers and unions must be mind- ful of human rights legislation and jurisprudence, which can be chal- lenging as it is ever-evolving." For the BCTF, the ruling is seen as a significant win for the labour movement and its efforts to pro- tect employees from unfair labour practices. "It is also an important win for women across the country," Iker said. "At the heart of the issue is discrimination. Employers can- not discriminate against pregnant women and benefit plans for new parents must be consistent with the Charter of Rights and Free- doms. Going forward, we will con- tinue to push for improvements and defend our rights." The Supreme Court of Canada ruled deference must be given to an arbitrator's original decision regard- ing the BCTF's grievance in a rare oral ruling from the bench, giving the union a quick win in its appeal. History lesson Feb. 14, 2011 — The BCTF files a grievance alleging discriminatory treatment against pregnant employees. Nov. 9, 2012 — The grievance is allowed by an arbitrator and the par- ties are ordered to address the issue in collective bargaining. Sept. 20, 2013 — The B.C. Court of Appeal orders the arbitration award be set aside and the grievance dismissed. Nov. 14, 2014 — The Supreme Court of Canada, in a rare oral ruling, allows the BCTF's appeal and restores the arbitrator's award.

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