A regular point of contention between unions and employers is
the appropriate treatment of employees who are on protected
pregnancy and parental leaves. This is doubly so where the
collective agreement provides for special benefits for such
employees. The Supreme Court of Canada recently had occasion to
examine one such conflict, and decided the case in a manner that
will doubtlessly concern employers.
Surrey Teachers' Association
The collective agreement between the parties set out a
Supplementary Unemployment Benefit ("SUB"), which is a
standard term in many collective bargaining relationships. Under
such a benefit, employees who are in receipt of employment
insurance benefits due to a pregnancy or parental leave are
entitled to a payment from the employer which, along with their
benefits, restores their take-home pay to a level more commensurate
with their regular salary.
The collective agreement allowed for 17 weeks of SUB benefits
for any qualifying parents, whether adoptive, male or female, or
whether they took pregnancy leave. The employer paid 17 weeks of
SUB benefits per employee over the course of their absence,
regardless of whether the employee was taking pregnancy leave,
parental leave, or a combination of the two.
The Union grieved this interpretation by the employer. The Union
alleged that employees who took a pregnancy leave and then later
took a parental leave should be entitled to two separate periods of
eligibility for SUB benefits, one for each leave taken. That is to
say, that an employee would be entitled to 17 weeks of SUB benefits
for pregnancy leave, and an additional 17 weeks of SUB
benefits for parental leave if they also took such leave.
The Arbitrator agreed with the Union, finding that the
employer's interpretation of the provision discriminated
against birth mothers. The rationale for this decision was that the
structure of the SUB provision forced pregnant mothers to
"forego" their SUB benefits for the parental leave by
taking pregnancy leave, a choice with which other parents were not
On appeal, the British Columbia Court of
Appeal overturned the arbitrator's decision. The Court
found that pregnancy and parental leaves were all related to the
birth or adoption of a new family member, and should not be
differentiated for the purposes of the discrimination analysis. As
a result, the employer's interpretation did not result in any
discriminatory exclusion – any parent of a new family member
was entitled to 17 weeks of SUB benefits. The fact that a pregnant
mother had the option of taking those benefits during their
pregnancy or their parental leaves was not material, and did not
constitute unequal treatment.
The case was appealed, and heard by the Supreme Court of
The Supreme Court released a very brief oral judgment in
which it restored the arbitrator's decision. It held that the
arbitrator was entitled to make the finding that the employer's
interpretation of the agreement was discriminatory, and that that
decision was entitled to deference from the Court of Appeal, which
had not been shown. While the Supreme Court stopped short of
endorsing the arbitrator's approach, it did state that the
Court of Appeal failed to take into account the difference between
pregnancy and parental benefits, without further comment.
What Employers Should Know
This case illustrates the difficulty in crafting benefits
language where an employee may be on leave for multiple reasons. It
seems probable that the decision of the Supreme Court could open
the door to additional challenges by unions that collective
agreement provisions seeking to limit entitlement to one benefit in
favour of another are discriminatory. Plainly in this case the
employer had negotiated language and bargained other monetary items
on the assumption that employees could not double-dip.
Query then: could the parties have better expressed their
intention in a manner compliant with human rights legislation? I.e.
In this case, the parties provided separately for parental and
pregnancy leave benefits, but reserved (as many collective
agreements do) that mothers would only be entitled to one or the
other. Had the collective agreement instead provided a set number
of months of SUB benefits for any new birth or adoption, and that
employees could elect to start those benefits at any point leading
up to the birth or a set period thereafter, would the provisions
have been lawful?
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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