Canada: Clear Language Trumps Fairness: Be Clear In Collective Agreements To Avoid Double Dipping

A 7 year battle over a day of paid personal leave has finally reached a conclusion.

The dispute centred around the interpretation of the collective bargaining agreement governing a unionized employee of the Canada Revenue Agency (CRA). The employee, during the span of one fiscal year, moved from one position within the Agency to another. Each position was in a different bargaining unit with its own collective agreement. Each collective agreement entitled workers to one paid personal day per fiscal year. The employee took a personal day under each agreement (in the same year). The Agency refused to pay the second day.

The CRA took the position that the paid leave entitlements were Agency-wide and not specific to each contract and each bargaining unit. To allow an employee to take more than one paid day of leave "leads to an unfair result and defies the values and principles of equity, integrity and efficiency..." the CRA contended.

For her part, the employee argued that a plain and ordinary reading of the collective agreement entitled her to a paid personal day, regardless of whether or not she had taken one under another contract. The Public Service Labour Relations Board (PSRLB) agreed and granted her a day's pay.

After a successful appeal to the Federal Court by CRA which quashed the PSLRB's decision, the Federal Court of Appeal reversed that decision, reaffirming the right of the employee to be paid the second day. Fairness was not at play where the collective agreement was unambiguous. The FCA held that:

Employers dealing with multiple collective agreements should take note – it pays to think about the potential interaction between those collective agreements and issues that may arise as employees move within an organization.

This article was written with the assistance of Erika Anschuetz, summer student.

Norton Rose Fulbright Canada LLP

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