Bargaining Checklist and Contract Language


Collective Bargaining Checklist and Suggested Collective Agreement Language

We need to review our collective agreements (particularly our non-discrimination, anti-harassment, benefit, bereavement, and leave clauses) to ensure that we meet our legal requirements and fully represent our members. As a union we have always negotiated beyond the law, and there are still areas where we can improve our collective agreements and push legislation forward.

What follows is a checklist and suggested contract language which are tools for bargaining committee members, LGBT activists, and our allies. Click on the links below to go to a specific topic or scroll through the entire document:

Non-Discrimination Clause
Anti-Harassment Benefits
Pension Benefits
Leave of Absence
Marriage/Commitment Ceremony Leave
Family Leave of Absence

Non-Discrimination Clause

Non-discrimination clauses must prohibit discrimination against an employee on the basis of sexual orientation. In Ontario, the Human Rights Code has also been amended to prohibit discrimination on the basis of same-sex partnership status. The term "same-sex partnership status", or some equivalent, should also be in a non-discrimination clause. If it is not, "marital status" must be defined as including same-sex relationships.

Many jurisdictions have now ruled that discrimination against transgender workers is prohibited under the heading of sex. However, we should spell this out more clearly and add "gender identity" and "gender expression" to the list of prohibited grounds.

Suggested language:
The parties shall not discriminate against any employee because of age, race, colour, creed, national or ethnic origin, political or religious affiliation, sex, gender identity, sexual orientation, marital status, same-sex partnership status, physical disability, mental disability, conviction for which a pardon has been granted, union membership or participation in the lawful activities of the union.

Checklist:

Does your agreement recognize same-sex relationships?
Does your agreement have a non-discrimination clause? Does it include sexual orientation, same-sex partnership status and gender identity?
Does your agreement include clause which might have a negative impact on transgender workers, such as a gender specific dress code?
Does your agreement accommodate transgender workers (e.g., washroom accessibility)?

Anti-Harassment

The CAW negotiates anti-harassment language and investigation/resolution policies in all of our collective agreements. As harassment is frequently directed at lesbian, gay, bisexual and transgender workers, it is important to clearly prohibit harassment based on sexual orientation, same-sex partnership status and gender identity/expression.

Suggested language:

The parties recognize the right of employees to work in an environment free from harassment based on age, race, colour, creed, national or ethnic origin, political or religious affiliation, sex, gender identity/expression, sexual orientation, marital status, same-sex partnership status, physical disability, mental disability, conviction for which a pardon has been granted, union membership or participation in the lawful activities of the union.

Checklist:

Does your agreement have anti-harassment language? Does it include sexual orientation, same-sex partnership status and gender identity/expression?
Is there a clear investigation/resolution process?
Does your agreement call for mandatory workplace human rights training for all employees and include sexual orientation and gender identity/expression issues?

Benefits

Bargaining benefit coverage for our members' families is a key negotiating priority. We need to review our agreements to ensure that everything from our drug plans to our negotiated legal service plans meet the specific needs of our LGBT members.

The law is clear that same-sex relationships must be treated at least as favourably as opposite-sex common law relationships. Same-sex relationships should be subject to the same cohabitation requirements and method of proof as opposite-sex common-law couples.

Length of cohabitation
The federal legislation recognizes same-sex relationships after one year of cohabitation. Provincial legislation ranges from immediate to three years. Our collective agreements generally provide for benefits after one year.

Proof of relationship
Proof may include just stating in writing that you have been cohabiting with your partner for one year. Some collective agreements require a registration then a waiting period of one year but this is less preferable. Again, the reference point should be how opposite-sex common-law relationships have been proven with the employer in the past.

Suggested language:

Eligible dependents include: the employee's spouse (including a married spouse or a common-law spouse of the same or opposite sex) and the employee's children (including a natural child, adopted child, stepchild, child under a guardianship order, and the child of the employee's spouse where the employee intends to treat the child as his or her own).

Application for benefits shall be kept confidential.

Checklist:

Is the length of cohabitation (time living together) the same for opposite-sex and same-sex couples?
Is the method of proving the relationship the same as it has been historically with opposite-sex couples?
Does the method of proof require that the relationship be "public" (there are safety issues involved in same-sex relationships)?
Are same-sex spouses entitled to all benefits under the collective agreement including pensions? (double-check benefits such as family relocation expenses, family tuition subsidies, legal services, employee/family discounts and travel passes)?
Does the drug plan include drugs for in vitro fertilization, insemination, HIV/AIDS, hormone therapy, etc., without formularies and without annual or lifetime maximums? (A formulary is a limited list of approved drugs rather than any medication prescribed by your doctor)
Does the medical benefit package include coverage for sex reassignment surgery, counselling and electrolysis?
Do the life and long-term disability insurance plans contain barriers such as pre-existing condition clauses?
Does the life insurance coverage include a provision for a living benefit advance and conversion?
Have you ensured that application for benefits are kept confidential by the employer? Lesbian, gay, bisexual and transgender workers should not have to out themselves in the workplace to access the benefits.

Pension Benefits

Same-sex spouses must be recognized for the purposes of survivor benefits. Pension benefits legislation in each jurisdiction also specifically covers the issue of competing survivors - e.g. for example, a member who remains married, but lives common-law with a same-sex partner.

Suggested language:

A retiree is an employee of the Employer who retires under the pension plan. The spouse of a retiree is the employee's spouse (either married or common-law of the same or opposite sex)

In 2000, the federal pension legislation was finally changed to include same-sex partners. Again, this was the result of court challenges led by the Canadian trade union movement. We need to demand that employers work with the CAW to locate the surviving partners of our gay and lesbian members who died on or after April 17, 1985, to ensure that they receive their proper survivor pension.

Checklist:

Does the collective agreement and pension plan text clearly cover same-sex partners as surviving spouses?
Did any lesbian or gay members die after April 17, 1985? If so, was a survivor pension paid? If it was not, contact should be made with the estate to determine if there would be an eligible surviving partner. Employers can be asked to take out advertisements in the appropriate communities to locate surviving partners of the deceased members.

Leave of Absence

Leave of absence language is particularly important for our transgender members. It is helpful to have language that specifically sets out the right to leave as well as to sickness and accident benefit coverage while off.

Suggested language:

An employee who provides a certificate from a medical practitioner confirming that the employee requires a leave of absence in order to undergo the medical procedure(s) related to a physical change from one gender to another shall be granted a leave of absence without loss of service or seniority and will be eligible for sickness and accident coverage while absent.

Checklist:

Does the medical leave provision allow for part days?

Does the medical leave cover workers taking time for reproductive technology uses or gender reassignment medical and surgical procedures?
Are the reasons for leave kept confidential?
Does your agreement include return to work policies that accommodate transgender workers?

Bereavement Leave

Bereavement leave is provided in the employment standards legislation in ten jurisdictions (federal, British Columbia, New Brunswick, Newfoundland , Nova Scotia, Ontario, Prince Edward Island, Quebec, Saskatchewan, Yukon). In three of these jurisdictions, (federal, Newfoundland and Quebec) it is a paid leave. Bereavement leave provisions in the collective agreement should make it clear that same-sex families and family members are covered. Although this is covered in the law, it helps to make these rights visible.

Suggested language:

In the case of a death in the immediate family, an employee shall be entitled to five consecutive days' leave, without loss of pay and adequate additional time without pay for extended travel. "Immediate family" means the employee's spouse (including a common law spouse of the same or opposite sex), child, parents, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, grandchildren, grandmother, grandfather and any relative living in the employee's household.

Checklist:

Does the bereavement leave provisions recognize same-sex partners and their family members? Does it respect privacy/safety issues?

Marriage/Commitment Ceremony Leave

Suggested language:

An employee who gives the employer at least two weeks' notice shall be granted special leave with pay but not more than five (5) days, for the purpose of getting married or participating in a commitment ceremony.

Checklist:

Do the marriage leave provisions provide for celebration, solemnization of same-sex relationships?

Adoption/Parental Leave

Lesbian and gay members need the same protection for maternity and parental leave as heterosexual members. Our collective agreement language needs to contemplate that two women or two men may have children together, either through birth or adoption. Adoption leave should be covered under parental leave.

Definition of Parent
The collective agreement can use an inclusive definition of "parent" such as the one found at section 45 of Ontario's Employment Standards Act.

"Parent" includes a person with whom a child is placed for adoption and a person who is in a relationship of some permanence with a parent of a child and who intends to treat the child as his or her own. [Ontario Employment Standards Act definition s.45]

Leave for attendance at birth/adoption
Leave provisions for the birth of the child should contemplate same-sex partnerships. Some collective agreements only entitle male employees to leave for attendance at a birth. Birth leave should be available to the non-birth parent without specifying gender. Situations of open adoption, where the employee is not yet the parent, should also be considered.

Suggested language:

Upon request, a non-birth parent shall be given a one week leave of absence with pay for attending the delivery and subsequent care following the birth or legal adoption of his or her child.

Parental Leave
In 2000 the federal government expanded the unemployment insurance provisions covering parental leave to allow parents to take extended leave time (17 weeks maternity plus 35 weeks parental leave), following the birth or adoption of a child. This is a tremendous move, and we now need to ensure that our collective agreements lock in the legislated allowable time off the job. We also need to negotiate top-up or 'SUB' so that the new leave provisions are, in fact, financially feasible for new families.

Maternity or pregnancy leave covers the employee who gives birth to a child. Parental leave is available to both parents of a child. Parental leave language also covers adoption situations.

Suggested language (in addition to standard maternity leave language):

Upon two weeks notice in writing, an employee who is the parent of a child is entitled to a leave of absence of up to 37 weeks following the birth of the child or the coming of the child into the employee's custody, care and control for the first time. The leave may begin no later than 52 weeks after the day the child is born or comes into the employee's custody, care and control for the first time. The employee may change the commencement date upon giving new written notice.

An employee absent on parental leave shall be entitled to all the rights and benefits of an employee on maternity leave.

Checklist:

Is the definition of "parent" inclusive? Does it recognize same-sex parents?
Is the leave provisions for attendance at a birth or adoption gender neutral?
Does the birth attendance provision contemplate attendance at the birth of a child to be adopted?
Is it clear that parental leave includes adoption leave?

Family Leave of Absence

Quebec, British Columbia and Ontario provide for a short-term period of leave for employees in order to take care of specific family responsibilities/emergencies. We must ensure that the definition of family in our collective agreements allows for a broad definition of family, in keeping with the realities of LGBT-defined families that often extend beyond blood relations.

Suggested language:

The Employer shall grant a request for an leave of absence because of illness, injury or medical emergency of the employee's immediate family. "Family member" shall be defined and designated by the employee.


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