HomeMy WebLinkAbout1990-1035.Union & Policy.95-03-21ONTARIO CROWN EMPLO"E~S EMPL0vl2.9 DE LA coul7- DE L'oNT#m0
GRIEVANCE COMMISSION DE
SETTLEMENT RiGLEMENT
BOARD DES GRIEFS
100, TORONTO ,ON M5G 126
2100. TORONTO (ON) MG 128
TELEPHONEiTkL$PtiONE :
FACSIMILEIT~&COPIE :
(416) 326- 13.96
(416,326- ,396
I Mm 2 1 1995 GSB # 1035/90
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BETWEEN
BEFORE:
FOR~THE GRIEVOR
FOR THE EMPLOYER
HEARING:
Before
THE GRIEVANCE SETTLEMENT BOARD
CUPE I?50 (Union/Policy Grievance)'
- and - Grievor
The.Crown in Rightof Ontario (Workers' Compensation Board)
Employer
B. Kirkwood Vice-Chairperson W. Rannachan Member F. Collict Member
K. Martin Counsel Sack, Goldblatt, Mitcheli Barristers & Solicitors
P. Pasieka Counsel Filion, Wakely & Thorup Barristers & Solicitors
September 22, 1992 April 19, 20, 1993 September 2, 1993 April 4, 1994
Page 2
DECISION
The Union claimed that on April 1, 1990 the Employer
arbitrarily changed the intent and application of Article 8:09 (a)
of the collective agreement, which establishes the salary for ._
irregular hour employees, by changing the salary base from 40
straight hours to 36 l/4. straight hours. The Union sought a c..:
declaration that the collective agreement had been violated and
claimed damages, including interest on all amounts due and owing r for the period from April 1, -1990, the day of the alleged breach
to July 3, 1992, a date which the union and employer could be
found to have reasonably renegotiated the provision.
The parties entered into an agreed statement of facts
and we heard further evidence. The following statement - .
corresponds for the most part to the, agreed~statement of facts
presented by the parties, but does not contain the Exhibits which
were referenced in the agreed statement.
1. The Canadian Union of Public Employees, Local 1750 (the
."Union"~was certified in respect of all employees of the
Workers' Compensation Board Qntario (the "Employer")
save and except certain excluded positions in October,
1975.
2. In the original agreement between the parties, effective
October 1, 1975 to September 30, 1976, Article 8.8
provided as follows:
Page 3
3. The irregular hour employees referred to in Article 8.8
were those employees who worked in the field and were
responsible to work on 'an "as required" basis to
accommodate their clients' schedules. As a result, _1
their working hours varied from week to week. Under the
first collective agreement; the irregular hour employees
fell under the Senior Administrative Salary Schedule,
Levels 70, 71, 72, 73, 74 and 75 of the collective
agreement. Some of the employees in the aforementioned
salary levels worked regular hours, although ,the
majority of employees in the salary levels worked
irregular hours.
8. An employee iS eligible for overtime
compensation unless he:
a)because of the nature of his position is
required to work irregular hours.
4. In the negotiations for a,sec,ond collective agreeme:nt, . .
the treatment of irregular hour employees was an
important issue to the Union. It was the opinion of the
Union that many irregular hour employees were working
"unlimited" hours with no additional remuneration. To
alleviate the situation, the Union proposed that
irregular hour employees receive overtime payment or
time off in lieu of overtime pay for any hours worked
over 36 l/4 hours. It was theposition of the Employer
that the then present circumstances concerning irregular
hour employees be alleyiated through the Employer
providing in a side letter to' the collective agreement
would provide as follows:
An employee who normally works on a irregular hours shall, for the purposes of payment, be deemed to be working a minimum of fbrty (40) hours per week and
Page 4
5.
his salary shall be adjusted to forty (40) hours on a straight time basis.
J
In the second collective agreement between the parties
effective October 1, 1976 to September 30, 1977, the
parties reached an agreement on the treatment of
irregular hour' employees. In particular, Article 8,
subsection 9, replaced the former language set out in ~_..
paragraph 2 above. Article 8; subsection9, provided as
follows: I# -
Article 8
9. An employee is eligible for overtime compensation unless he: .
(4
b)
because of the nature of his position is
required to work irregular hours. Such an employee shall, for the purposes of payment, be deemed to be working a minimum of forty (40) hours per tieek, and his salary shall be adjusted to forty (40) hours on straight time ~basis; Notwithstanding the above, any such employee who is required by his supervisor to work on his day off or on a holiday,,,shall receive equivalent time off.
_ -
6. On July 28, 1982 (sic), the Union distributed a bulletin
which stated in part that "the 3/4 hour pay premium
recognizes work performed outside regular hours".
7. During the period October 9, 1976 to March I, 1990,
irregular hour employees were paid, according to the
Union, a salary based on 40 hours per week and according
to the Employer, irregular pay based on 40 hours per
week. In addition, any benefits payable to irregular
hour employees under the collective agreement were
calculated on the basis of 40 hours per week.
Page 5
8. During the period up to March 7, 1990, an irregular hour
employee was not required to submit an overtime form to
receive the salary or irregular pay as set out in
paragraph 7 above. Rather, once designa.ted as an
irregular hour employee, the employee's regular pay
and/or salary was simply calc!ulated accordingly. In
comparison to irregular hour employees, regular hour
employees who worked overtime were required to submit an _
overtime form and their pay; che,ques identified an amount
for "regular" pay .and a separate amount for "overtime"
9. For several years prior to March 7, 1990, the Employer
provided,new employees with in:formation about their pay
cheque stubs.
10. From the time of the first collective agreement up until
March 7, 1990, irregulars hour employees fell under
salary grades 070, 071, 072, 073, 074 and 075. However,
in the collective agreement effective October 1, 1988 to
September 30, 1990, a separate salary was specified for
employees working irregular hours.
11. In the context of this proceeding, the Union requested
that the Employer produce, inter alia, any internal
Worker's Compensation Board d.ocumentation setting out
guidelines for the payment of salary and benefits :Eor
irregular hour employees for the period October 1, 11376
to March 7, 1990. The Employer produced four manuals
which were the working documents for 1982 and has
advised the Union that there #are no other documents in
existence: Human Resources; Policy and Procedures
Manual; Administration Procedures Manual - Saliiry
Administration Specialist; Administration Procedures
Manual Benefit Clerk: and Administration Procedures
Page 6
Manual Personnel Clerk. The latter three manuals set
out detailed procedures governing the job duties of the
Salary Administration Specialist, Benefits Clerk and
Personnel Clerk: The incumbents of these position were
responsible for the duties involved in the
administration of salary and benefits during the reliant
~period.
In the procedures governing the.duties of the Salary
Administration Specialist, there were several references
to the administration of salary for irregular hour
employees.
In the detailed.procedures.governing the calculation of
benefits, the ,manuals tracked the language in the
collective agreement indicating that benefits were to be
based on salary pay, or whatever the applicable language
was in the collective agreement.
The Workers' Compensation Board Policy and Procedure
Manual sets out the benefit policies in respect of the . -
employees in, the bargaining unit, including the
irregular hour employees. The policies for each benefit
are approved by the Board of the Workers' Compensation
Board. This !is reflected in the actual policies
contained in the Policy and Procedure manual. In
particular, then Board passes the policies in their
Minutes prior to the-policies becoming in effect. In
these policies, there is no distinction drawn between
regular and irregular hour employees. Examples of such
policies are set out in respect of vacation; leave of
absence; bereavement leave; leave of absence for
justifiable personal reasons and statutory and declared
holidays.
Page 7
12.
13.
14.
15.
16.
17.
During the period October 1976 to March 7, 1990,
irregular hour employees were defined as being in 370,
371, 312, 373, 374 and 375 in all personnel
documentation.
The description of irregular hour employees 370, 371,
372, 313, 374 and 375 was d.isclosed in information
regularly supplied to the Union of hirings,
terminations, classification changes on a monthly basis.
On March 7, 1990, B. Homer, Manager, Employee Relations
advised Frank Mucci the President of the Union that,
henceforth benefits for irregular hour employees wou.ld
be calculated on the basis ,of 36 l/4 hours per week, as
opposed to 40 hours per week.
On or about March 9, 1990, individual letters were sent
to each employee who was designated as an "irregular
hour employee" from A. J. Iiagan, Director of Human
Resources, advising him/her of the change. A copy of
that went to Mr. Mucci, inhis capacity as an irregular
hour employee.
On or about March 20, 1990, Mr. Mucci sent a letter to
Mr. Homer requesting clarifica.tion on the implications
of the change in the rights a:nd benefits of irregul.ar
hour employees. In particular, he requested, j&:er
alia, information on what benefits would be affected:
how the benefits would be faffected: and the number of
affected employees.
On or about April 2, 1990, E.J. Baldwin, Employee
Relations Specialist wrote'to Mr. Mucci addressing his
concerns.
Page 8
18. The change affected "irregular hour employees".
Irregularly 'hour employees were identified as those
employees in salary grades 370, 371, 372, 373, 374 and
375. As of February 23, 1990, the number of active
employees in each of the aforementioned salary grades
was as- follows:
Salary Grade No.~of Active Employees as at Feb. 23/90 -' "
370 20
371 15
372 67'
373 '. .!
374 17
375 11
At the time of the grievance, the bargaining unit was
comprised of approximately 2,200 members.
19. In addition, the change affected those benefits and/or
rights set out below. Where applicable, reference is
made to the corresponding provisions of the collective
.agreement: . .
Benefits Provision in the Collective
Aareement
(a) Superannuation Plan Contribution
(b) Holidays
n/a
Article 10 - the calculation of "without reduction of salary" (Article 10); "regular rate" (Article 10.04); and regular days pay" (Article 10.05)
(c) Vacation Article 11 - the calculation of "pay" (Article 11.02, 11.04); - the calculation of "current rate of salary" (Article 11.05)
Page 9
(d) Attendance Credits Article 15 - the calculation of attendan,ce credits (article 15.01, 15.07); - the calculation of "rate of pa:y" and "salary" (Article 15.06)
(e) Leave of Absence for jury duty, bereavement leave, military leave, sick leave adoption leave Article 16 - the calculation of "pay“ (Article 16.01(d), 16.02, 16.05) .. - the calculation of "salary" (Article 16.03, 16.04) - the calculation of "actual weekly "-. rate of pay for her classification" (Article 16.07) - the calculation of "salary" (Cuticle 16.07, 16.09)
(f) Leave of Absence for Union Activities Article 17 - the calculation of "pay" (Article 17.03, 17.05, 17.06)
(g) Workers' Compensation Benefits Article 21 - the calc.ulation of "full salary" (Article 21.02(b))
(h) Long-term disability Appendix 3, Section 3(c) - the calculation of "gross regular
salary”; "normal salary"; and "earnings"
(i) Life Insurance Appendix 3, Section 3(d) - the calculation of *basic annual salary"'
(j) Employee Accidental Death and Dismemberment Appendix 3, Section 3(e) - the calculation of "annual salary"
OTHER RIGHTS
(k) Payment of Part-time and Temporary Employees Article 22 -"normal days' pay" (Article 22
(b)); "to.tal earningsm (Article
22(C)) "regular earnings"
(1) Union dues- Article 20
Page 10
(article 22 (h)
-refers to deduction of union dues in accordance with the Constitution - the calculation'of "regular weekly Pay" in the Union's By-Laws and Constitution
_.
.20. The Union and the Employer agree that:
(a) the calculation of "earnings in Article 11.05(b) is
based on the forty hour a week rate of irregular hour
employees.
(b) the calculation of "pay" in Article 17.02 and 17.04
is based on the forty hour a week rate for irregular
hour employees.
(c) the calculation of "wages" in Article 22(a) is
based on the forty hour a week rate for irregular hour . .
~employees. .
(d) In the event that an employee is off on sick leave,
the employee's salary is protected for any period of the
absence. For irregular hour employees the salary which
is protected is the forty hour a week rate.
21.' As of the .date of the change, the relevant
collective agreementcovered the period from October 1, 1988 to
September 30;1990.
22. On May 14, 1990, the Union filed a grievance of the
change in the treatment of irregular hour employees.
23. On June 19, 1990, the Employer filed its reply.
Page 11
24. FOllOwing the change described in paragraph 17
above, irregular hour employees were required to complete an
Overtime Pay authorisation Form to receive the 3 and 3/4 hour
portion of the 40 hours pay. In addition, the "pay stub" of a'n
irregular hour employee thereafter identified an overtime section.
25. A new collective agreement was negotiated '
commencing October 1, 1991. The Union forwarded proposals
concerning irregular hour payment in these negotiations and a ---
change to the provision concerning irregular hours was negotiated.
Both~ counsel presented comprehensive arguments and
provided books of authorities, which'we have reviewed in thei.r
entirety, although they are not all referred to in this decision.
The Union argued that the collective agreement was clear
on its face. The Union claimed that the Employer violated the
provisions.of the collective agreement by not paying benefits as
set out in paragraph 19 of the agreed statement of facts, whic:h
the Union submitted ought to be based on 40 hours per week and not
on 36 l/4 hours per week. Union's counsel argued that irregula:r
employees had a separate salary from the regular employees which
was specified in the collective agreement, based on forty hours
straight time. Union's counsel made arguments on each reference
to ‘salary' and 'pay' as referred through the collective
agreement, submitting that salary for irregular hour employees
refers to the usual and normal rate of forty hours straight time.
The Union argued that the references in the collective agreement
to 'salary' refers to salary for all purposes.
Page 12
Union's counsel argued that if the Board were to find
_' the language in the collective agreement ambiguous, the Board must
look to the ~spast practice of the ~parties to construe the
collective agreement (Noranda Metal Industries Ltd., Fergus
Division and Interna~tional "Brotherhood of Electrical _.,
Workers, Local -2345 et al. 44 O.R. (2d) 530 (Dubin); Motor
Transport Industrial Relations, Bureau ‘of 'Ontario and -:.
Teamsters Union, Locals 91, 141, 879, 880, ,938 4 L.A.C. (2d)
89 (Brown); Re Steel Co. of Canada Ltd. and United
Steelworkers, Local' 3748
8 L.A.C.. (2d) (Palmer)). For a
period of. 14 years, -the Employer paid benefits and remitted union
dues on the basis of a 40 hour salary, which practice supports the
Union's interpretation. -
Union's counsel submitted that any argument that there . -
had been a mistake-was not credible. The.-Employer did not calls
anyone directly involved in the original negotiations to prove
that the original intention ~was anything other than. what it
carried out. It relied only on the minutes produced by the note-
taker and the testimony of Jacquie Gray-Moores who. suddenly
realised that the Employer was paying early retirement onthe
basis of forty hours per week. Union's counsel argued that the
minutes were ambiguous and the employer's documentation dividing
the employees in categories of regular hour employees and
irregular hour employees and their treatment of those employees,
supported the Union's contention that the Employer intended to
Page 13
treat the employees in this way.
Finally Union's counsel submitted that due to the
Employer's past practice, the Employer is now estopped from
changing the meaning of the collective agreement (Re CN/CP
Telecommunications and Canadian Telec'ommunications Union 4 _
L.A.C. (3d) 205 (Beatty), upheld in appeal in Re Canadian
National Railway Co. et. al. and Beatty et al. 128 D.L.R. *.fi.
(3d) 236 (Osler J); (Re Domglas Inc. and United Glass and
Ceramic Workers, Local 203 9 L.A.C.(3d) 125 (Kennedy); Re
Certified Brakes., Division of Lear Siegler Industries Ltd.
and United Steelworkers of America, Local 14831 25 L.A.C.
(IdI 418 (Davis)1 Re Kemptville District Hospital and
Ontario Nurses' Association 1 L.A.C. (4th) (Burkett); Re
Corporation of City of London and'canadian Union of Public
Employees, Local 101 11 L.A.C. (4th) 319 (Roberts)). Union's - -
counsel argued that even if there was a mistake, a .mistake.does
not prevent the application of the concept of estoppel (Re
Windsor Western Hospital Centre Inc. and Ontario Nurses
Association 8 L.A.C.(4th) 116 (Watters)). The purpose of
estoppel is to protect the party that reli.ed on the actions of the
other.
Union's counsel submitted that, at least, on the basis
of the past practice evidence, the Employer should be estopped
from changing its practice until the Union had a chance to
negotiate the issue.
Page 14
Employer's counsel submitted the only issue ~that this
Board has to deal with is characterisation of the 3 3/4 hours
difference between regular and irregular employees. That issue
has been dealt with in the unreported decision of OPSEU (Gullen)
G.S.B. #96/90 (Keller) which found that the extra pay was a _I~
premium to cover extra hours that any irregularly categorised
employees might work land was not part of salary. As the board has r-..
already resolved the.issue of the treatment of this premium pay,
this board must follow the Gullen decision, unless the board were
to find that the decision was manifestly wrong. '
Employer's counsel argued that the Gullen (supra)
decision was not manifestly wrong. She argued that the collective
agreement was clear on its face. Employer's counsel argued that
Article 8 refers only to the overtime provisions, and the 3 3/4 --
hours pay that was given to the irregular employees was payment in ~-.
lieu of overtime and was not a basis for benefit payments.
Employer's counsel argued that nowhere in the collective agreement
did it refer to the premium being used for the calculation of
benefits,.
Employer's counsel argued that evidence of past practice
could not be relied upon by the Union as the Employer had,
notwithstanding its calculation on benefits, posted the positions
for irregular hour employees on the basis of 36 l/4 hours per
week. In the 9mployer's submission, there was no 'consistent and
Page 15
clear practice as suggested by the Union.
Employer's counsel argued that for estoppel to be
applicable there must be a promise that was intended to affect
legal relations and there must be detrimental reliance upon the
promise (OPSEU (Brown) and The Crown in Right of Ontario _
(Ministry of Community and Social Services) GSB #0513/86
(Barrett). A mistake cannot be used to establish a promise. .'_..
(Monarch Fine Foods Co. Ltd. 18 L.A.C,, (3d) 257 (Schiff)). In
this case, the Employer never intended to pay benefits on the
basis of forty hours straight time, per week; as .seen in the
minutes of the Employer's Board of Directors. She argued that the
Union Bulletin also supported the Employer's position that Union
considered the excess 3 3/4 hours a's overtime. The Union was
unable to present evidence that contradicted this original
intention. It relied on the testimony of Mr. Millage, who was _
present at the negotiations, but was'not the spokesman, and was __
not present when the decisions were made in drafting the
collective agreement. Employer's counsel submitted that the
original intention was as seen in the'Employer*s minutes to treat
36 l/4 hours as the base salary for irregular hour employees with
an allowance for the nature of the hours of work that they had to
do in excess of the normal hours. Due to the computerisation Iof
the payroll a mistake was made and perpetuated.
Employer's counsel argued,that if there has been no
inequity, there can be no estoppel (Re Dominion Chain Inc. and
Page 16
International Association of Machinists and Aerospace
Workers> Local 1927 23 L.A.C. (3d) 341(Kennedy)). Furthermore
estoppel cannot be applied where only one group of employees
relied on the conduct' of the employer (OPSEU(Mills.) v.
(Ministry of Transportation) January 2, 1990 (Low)). Where an
employer has however bestowed .a benefit that is beyond that which _
it is required to do it.can discontinue that benefit. (Monarch
(cited above) If the parties wished to include it/they had to -::.
express it in the collective agreement to be binding.
Employer's counsel argued that if the Board was to find
that estoppel was applicable, the Employer could discontinue its
practice ,on reasonable notice to the Union (OPSEU(Poapst)and The
Crown in Right of Ontario (Ministry of Revenue) GSB. #267/90
(Barrett)). Employer',s counsel argued that there was no inequity
as notice was given and the Union was in the position to negotiate
forthe next collective agreement which would commence in
approximately six months.
Although Employer's Counsel argued that we are limited
to interpreting article 8:09 (a) of the collective agreement, we
find that we are not limited to a finding on the interpretation of
article 8.09. The incident that triggered the grievance was the
Employer's discontinued use of 40 hours as the basis of payments
for benefits. The Union claimed a violation of article 8.09 and
did refer to "violations of other articles of the collective
agreement". While this is a broad term of reference, we do not
Page 17
find that the Employer was surprized by the characterisation of
the issue in any way. The Employer clearly knew the scope of the
dispute between the parties. We find that we have jurisdiction to
consider the articles as requested by Union's Counsel.
The issue before us centres on the language set out in _
Article 8.09 and Schedule "A" of the colle,ctive agreement covering
the period October 1, 1988 to September 30,, 1990. "-.
The foundation of the Union's position is based on
Article 8.09 and Schedule "A" which states::
8.09 An employee is eligible for overtime compensation unless he:
(a) because of the nature of his position is required to work,irregular hours. Such an employee shall, for the purposes of payment, be deemed to be working a minimum of forty . - (40) hours per week, and his salary shall be adjusted to forty'(40) hours on'straight time
basis.
The relevant portions of Schedule "A" state:
SCREDULE "A"
TEE WORKBRS' COMPENSATION BOARD ONTARIO
SALARY SCALES AND CLASSIFICATIONS IN THE BARGAINING UNIT.
The Employer shall pay salaries in accordance with this Schedule and this Schedule shall apply to all employees in the classifications listed herein....
TABLE OF CONTENTS
Senior Administrative Salary Scale
Page 18
SCHEDULE "A" SENIOR ADMINISTRATIVE SALARY SCALE Effective Oct. 1, 1988
Salarv Grade Minimum SteD 1 . ..etc 6 months...etc. '.
075 .739.21 784~.68...etc. (816.07 (866.10)...etc.
(Includessalary Adjustment for-irregular hours under .I Article 8.09(a))
The issue is what are the ramifications of 'these*-."-
articles-on the benefit provisions in the collective agreement.
~'-In our view the Gullen board was asked to resolve the
essentially the same issue that is before us. Although the
purposes may have been different the fundamental principle upon I.
which the~decision'is based relies on the same issue that is
before us, the determination of salary of irregular hour
employees.. The purpose of the Gullen panel, was to determine - -
~whether the payment for,deemed additional hours of work'.tias part
of the 'salary' to be protected when irregular hour employees were
no longer needed bnd were reclassified,, but were entitled to
income protection. In order to do so, it had to determine the
nature of the 3 3'/4 hour payment which employees who work
irregular hours receive which employees who work'regular hours do
not. The effect of the Gullen decision is that interprets Article
8.09 as interlocking with Article 7.01 to protect the normal hours
of work but not the premium attached for working irregular or
overtime hours. The rate of pay for regular and irregular
employees remained the same. The excess was characterised as
c
Page 19
"top-up" in lieu of overtime. Vice Chair Keller states at pages 6
and 7:
The issue is whether salary protection is to be based 'on 36 l/4 or 40 hours per week for those to whom s. 8.09 applied in the past. Article 8 establishes the rules for the eligibility to, and the payment of, overtime.
Its purpose, like all overtime provisions, is to establish the level and quantum of compensation where work hours exceed the norm established in the collective
agreement. In the instant case, s. 7.01 establishes the normal working hours at 36 l/4 hours per week. That*'- establishes the norm: without express language to the contrary that is the basis for the application of the income protection plan.
Does 5. 8.09 provide that con.trary language. In our view, it does not. We reach that conclusion because of the very wording of s. 8 in general and 8.09 in particular. As indicated a:bove, s. 8 deals with overtime and its modalities. S.8.09 provides one 'of those modalities. It stipulat.es where employees wi:ll not be eligible to overtime compensation (i.e.) whe:re irregular hours of work #are the requirement of a position. In such a case, :employees are paid 40 hours rather than 36 l/4 hours per week as long as they . _ continue to work irregular ~hours. The result is not a
different rate of pay than others in the pay..grade. It is the same rate of pay plus a "top up". This sche:me was negotiated, according to the evidence, to avoid the necessity of tracking the hours of those affected. Clearly in some weeks employees will earn more than their hours worked and vice-vers'a.
The Keller board then protected salary based on 36 l/4 hours a:nd
not on 40 hours as advanced by the Union. '
In order that there can be consistency in decisions of
the Grievance Settlement Board, the Board adopted the test that
previous decisions of the Board ought to consider the decisions of
earlier panels of the Board, unless the Board was to find that the
. .
Page 20
earlier panel was manifestly wrong (Re Blake et al. and the
Amalgamated Transit. Union and The Toronto Area
Transit
Operating Authority, unreported January 22, 1988). This test
was accepted ,(M.C.S. v. OPSEU(Dupuis) and the Grievance
Settlement Board, Reid J. May 8, 1990) with the recognition that
subsequent boards use prior decisions as a guide in addressing the _.
issues before them.
We do not find that the Keller panel was manifestly
wrong and we a;re guided by his treatment of 'salary'. As with the
Keller panel, we do not find Article 8.09(a)'ambiguous.
Article 8.09 must be read inconjunction with Articles
7.01 and Schedule A. Although headings to articles are not
determinative of,the contents of the following articles they are
nevertheless helpful in the interpretation of the ensuing _ .
.~
articles. Article 7 is headed ‘Hours of,Work', Article 8,
'Overtime', and Schedule A, 'Salary Scales and Classifications'.
Article 7.01 specifically references the normal hours of
work for the Clerical, Administrative and Treatment Scale, the
employees involved in this dispute, and makes no distinction
whether these employees work regular hours or irregular hours. It
specifically refers to employees "on,this scale". It states:
ARTICLES 7
HOURS OF WORK
7.01 The normal hours of work for employees on this
Page 21
scale are thirty-six and one-quarter (36 l/4) hours per week and seven and one-quarter (7 l/4) hours per day. Effective August 8th, 1979, theses hours of work will apply to the Treatment Salary Scale.
The Salary Scale is set out in Schedule "A" of the collective
agreement, and therefore the normal hours of work are equally
applicable to both regular hour and irregular hour employees.
When Article 7.01 is read with Article 8.02, which falls I...
under the heading of 'Overtime', when employees on this salary
scale work in excess of their normal weekly hours of work (36 l/4
hours per week) they are entitled, to payment for overtime.
However, when Article 8.09(a) which ie also found under the
general heading of 'Overtime', is read with Article 7.01, .it
excludes employees who work irregular hours from overtime
entitlement. Their normal hours are stillt caught by Article 7.01;
however, because of the nature of their work, it deems them to be . -1
working 40 hours, .whether they do.-or not.. As Vice-Chair Kelller
points out, the rates of pay of regular and irregular hozlr I
employees remain the same. It is only that the irregular hour
employees receive an additional 3 3/4 hours to compensate them for
the nature of their work and overtime, if they were to work it,
for so long as they are working on an irregular hour basis.
The effect of the Keller decision is that 'salary is
based on normal hours of work for both regular and irregular hour
employees. This is consistent with the relationship between
Article 7.01 and Schedule "A". Schedule "A" does not change t:he
” .
Page 22
salary in each salary grade, but by referring back to Article
8.09(a), the ~overtime provision, shows the effect of the payment
in lieu ~of ,overtime and the deemed provision for working
"irregular hours". As in the Gullen (supra) decision~we do not
find,that the reference by the employer and its designation of '3'
in its documents relating to the irregular hour salary scale is
anything more. than an'.internal designation ~for irregular hour
employees to show that overtime was not applicable to .these ,,,
employees. There is no reference to a ‘~3' designation in the
collective agreement and therefore cannot be said to be agreed to
by the parties as a separate salary level.
Mr. Millage conceded, salary for regular hour emp,loyees
did not include overtime. Therefore for us to find that
compensation for overtime and type of work was to be included in
salary for irregular hour employees, would create two different . -
meanings to the word 'salary' which would depend on the nature of .
work performed~. In .our view to accept the Union's argument that
salary for irregular hour employees changed for all purposes and
not just for the compensation for the nature of their work and in
lieu of overtime would require clear language to the contrary.
Both parties treated the additional payment as overtime.
From the Employer's evidence the minutes of a meetings held on
August 17, 1977 acknowledged that t.here were.employees who worked
irregular hours and it indicated how the Employer intended their
pay to be treated,, as distinguishing between the base pay and the
Page 23
allowance for the irregular hours, when it stated: "the base pay
of 36 l/4 hours would come under regular pay and the allowance of
irregular working hours under the overtime heading." As these
were minutes from an Employer's meeting we cannot say that they
reflect the Union's understanding. However, when we look at the
Union's bulletin, we see that the Union was also concerned with
the hours in excess of the normal hours,, which is overtime, and
the bulletin recognises the excess pay as pay premium for hours
worked outside regular hours. The bulletin recognises that the
employee did not have to work those hours to get the additional
pay a The Union's bulletin also supports the interpretation that
the premium 3 3/4 hours was in lieuof overtime and that was to
compensate the employees for work in excess of normal hours.
Therefore there was a recognition by'the Union of normal hours of
work and of overtime.
. -
The next issue is are there other articles in t.he .
collective agreement that create doubt on this interpretation and
lead us to find that the wording is ambiguous.
Use of words must be given a consistent meaning
throughout the collective agreement.' Although we have seen that
there are different adjectives describing salary such as "currt?nt
rate of salary", "full salary", "gross regular salary" "normal
salary" we do not find that this detracts from the meaning that
flows from normal hours of work that would establish the salary
for these employees, and which is Seen in the salary scales in
Page 24
Schedule "A".
In Re 'Chporation of City of Victoria and
Canadian Union of Public Employees, Local 50 7 L.A.C. (2d)
239 (Weiler) found the language of the collective agreement
sufficiently clear‘on its face and did not allow evidence of past
practice that would be contradictory to his finding on the
interpretation to be used to alter the clear meaning of the *'I
collective agreement. Similarly, although we received evidence of
past practice which is contrary to this interpretation, we are of
the same vi&w thatthe collective agreement was sufficiently clear .+
on its face and past practice should not be applied to create a
contradictory meaning to the collective agreement. Therefore we
interpret the 'collective .agreement as providing salary based on
the normal hours of work as set out in Article 7.01 which is
reflected in the salary scales in Schedule “A", with the __
adjustment shown for the irregular hour employees and the
additional "3 3/4 hours is compensation for overtime of the
nature of the hours of work carried outby the irregular hour
employees.
. .
Therefore, we find'that the Employer did not violate the
agreement when it based its calculation of benefits on 36 l/4
hours per week. kowever, the Employers had established a practice
that was contrary to this interpretation. Although the Employer
had posted~ the irregular hour position on the basis of 36 l/4
hours per week, we do not find that it constituted an inconsistent
Page 25
practice. Although the position was posted in one way, the
Employer had based its calculations of be,nefits on forty hours per
week for fourteen years and it is that conduct which constituted a
consistent practice.
As the Employer had been misapplying the collective . . agreement for many years and had paid the employees at an
advantageous rate until April 1, 1990, the next issue is whether I
the Employer is estopped from changing its practice.
NumerOus cases from Ra CRlCP Telecommunications and
Canadian Telecommunications Union (supra), upheld in appeal in
Re Canadian Rational Railway Co. et. al.. and Beatty et al.
(supra) have recognised that an establis:hed practice which is not
included in a collective agreement (Re Domglas Inc. (supra)) or
which is at variance with the s'trict interpretation of a
collective agreement is sufficient to establish the principle of . ..-
estoppel; provided however, that in addition the other party has
acted on the representations established by the practice, to its
detriment (OPsEU(Mills) (supra), Re Dominion Chain
Inc.(supra)). However, based upon equity and fairness, even if
there was conduct or past practice,: estoppel cannot be used to
freeze a practice unless it can be shown that it would be
inequitable to permit a change. Re Cominco LTD. and U.S.W,
Local 489 9 L.A.C.(2d) 354 (Callagahan,) held that even a long
standing error of 25 years in the interpretation of a collective
agreement may be corrected once itis discovered by one of the
Page 26
parties.
In Domglas (supra), the board pointed out that as the
union had relied on the employer's practice to provide 'lunch
breaks, when determining its issues and areas of collective
bargaining, thereby acting to its detriment, it was sufficent to . . apply the principle of estoppel. There was however, a right to
put the estoppel to an end, but in doing so, the party-relying on
the representation must be given an opportunity to resume its
original position. Similarly as in Re ~Certified Brakes,~
.Divfsioa of' Lear Siegler Industries Ltd. (supra), parties
have been held to the practice until such time as the parties
could engage in collective bargaining.
. . f
Employer's counsel urged us to follow the views set out
in the Monarch (supra) decision which in many ways was similar to
the case before us. An errof had been committed and'perpetuated
without the knowledge of those in authority.~ ,when the"mistake was
discovered, the employer acted to correct the mistake. .Arbitrator
Schiff did not agree with the rationale in the CN/CP decisions, as
'cited above, and viewed estoppel as promissory estoppel, thus
based upon a promise, which thereby includes an intention to
represent a course of conduct with the purpose of changing legal
relations. In his view it'could not be based on mistake but there
must be deliberate conduct.
We recognise that mistakes may be committed by those
. -
Page 21
.
subordinate to those in authority, and those mistakes must be
correctable. However, when a mistake has been perpetuated for
such a long period of time, thoge in authority must have
responsibility for their lack of knowledge. The mistake in effect
created a position for the other party, which in the context of
general industrial relations and collective bargaining, became a
manifestation of the Employer's position. The mistake, in effect, -
affected legal relations. The purpose of estoppel is to prevent ._ '_
inequity and unfairness. Therefore we arti? not persuaded to follow
the views set out by Arbitrator SchiflE, but follow the cases
aclopting CB/CP (cited above).
In this case the Employer identified that it had erred
for a serious length of time. Until 'the issue was brought to the
Union's attention on April 1, 1990, the Union had no reason to
negotiate a different arrangement and therefore the Union had . .
acted to its detriment by relying on the Employer's mistak.e. .
There was no subterfuge by the Employer or the Union, nor was t.he
Union trying to take advantage of the Employer's error. As in
Domglas Inc. (supra) and Re Certifield Brakes (supra), the
Employer should be allowed to correctthat error, however, without
prejudice to the Union.
The Union argued that on the basis of Re Corporation
of City of London and Canadian Union of Public Employees,
Local 101 11 L.A.C. (4th) 319 (Roberts) that the Union was
entitled to pursue its rights through arbitration without risking
1 - - _ ;,-,_ - .
Page 28
termination of estoppel. To the extent that the estoppel must
apply during the duration of the agreement we agree, however, the
Employer did give notice to'%he Union that it was discontinuing
its practice, or was in effect,. not interpreting the collective
agreement to the Union's benefit. This therefore gave notice to
the Union that there was an issue between the parties which if the
Union wished to remedy, had to be negotiated. - At that moment the
Union had the opportunity to bargain for the continuation of that *'-
right. We find that the Employer is estopped from changing its
practice to the end of the collective agreement in effect at the
- time of the notice. Therefore the Employer is to be held to its
past practice from April 1, 1990 to September 30, 1990, the
_ termination date of the collective agreement in issue.
We therefore find that the salary for regular hours
employees and irregular hour employees is the same. However, as . -
set out in Schedule "A" the adjustment for irregular hours, which
is specifically referenced as applicable under Article 8.09(a),
is therefore characterised as overtime, and includes a payment in
lieu of the overtime that is applicable under Article 8.02 for
regular hour employees. We also find that none of the provisions
for the benefits conferred under the collective agreement include
the premium, or "top-up" as coined by Vice-Chair Keller.
We were advised that if the board were to decide the
principle that was to be applied, the parties expected that they
would be able to settle its applications. Therefore we Will
r---- Pac)e 29
remain seized as to any issue that may arise from the application I
of the principles set out above, including that of interest due
and owing, which the parties cannot resolve.
Dated at North York, this 21st day of mrch,
1995 - Vice-chairperson.
I