HomeMy WebLinkAboutStratil Group 13-11-271
IN THE MATTER OF AN ARBITRATION
BETWEEN:
WINDSOR REGIONAL HOSPITAL
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 143
(the “Union”)
AND IN THE MATTER OF GRIEVANCE REGARDING VACATION WITH PAY
OPSEU # 2012-143-0023
Louisa M. Davie Sole Arbitrator
Appearances
For the Union: Tim Hannigan, Counsel
For the Employer: D. Brent Labord, Counsel
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Award
In this group grievance filed November 1, 2012 employees claim that they have been
denied their entitlement to vacation with pay by Windsor Regional Hospital ("the
Employer" or “WRH") in violation of the collective agreement to which the Employer is
bound together with the Ontario Public Service Employees Union, Local 143 ("the
Union")
The facts giving rise to this dispute are somewhat unique.
The employees had been employed by St. Joseph's Health Care London ("SJHC") and
covered by a collective agreement pursuant to which they earned vacation credits which
the employees were entitled to use in the same year that the credits were earned.
Effective November 15, 2011 certain programs and beds were transferred from SJHC to
WRH. Following proceedings under the Public Sector Labour Relations Transition Act,
1997 S. O. 1997, c. 21 ("PSLRTA") the employment of this group of employees was
transferred from SJHC to WRH. On the November 15, 2011 transfer date the
employees affected by this grievance became employees of WRH and were covered by
the WRH collective agreement which provided for a different method of paid vacation.
Pursuant to the WRH collective agreement employees earn vacation in one year which
they may then take the following year. The issue raised in the grievance revolves
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around the employees' entitlement to vacation with pay in the first year following the
transfer of their employment.
The parties proceeded by way of oral submissions and an Agreed Statement Of Issues
And Facts ("Agreed Facts") which states:
In the matter of an Arbitration before arbitrator Louisa Davie (re: Vacation Pay)
BETWEEN:
WINDSOR REGIONAL HOSPITAL
(the “Hospital” or “WRH”)
-and-
OPSEU
(the “Union”)
AGREED STATEMENT OF ISSUES AND FACTS
The Parties agree that Arbitrator Louisa Davie has jurisdiction in this matter. The
Parties further agree that there are no preliminary issues with respect to the grievance
dated November 1, 2012 (Exhibit 1).
For the purposes of expediting the resolution of the arbitration in this matter, the Parties
have mutually agreed to the following facts and statement of issue to be placed before
the Arbitrator along with parties’ legal arguments, to resolve the issue in dispute.
1. At all relevant times Windsor Region Hospital was a health-care institution
governed by the Public Hospital Act with two (2) main sites (Metropolitan and
Tayfour) and two (2) satellite programs with a total of approximately 669 beds
and 2700 employees.
2. Prior to November 15, 2011 the Hospital was a party to separate collective
agreements in respect of nine (9) different bargaining units which can be
summarized as follows:
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Employees Group Bargaining Agent
Nurses ONA
Office & Clerical IBEW
Allied Professionals - (385
employees)
OPSEU
General Service CAW
Lab & Radiology CAW
Engineers / Trades CAW
RPN’s and Rehab Assistants CUPE
Physicists PIPSC
Radiation Therapist PIPSC
3. The collective agreement in effect between WRH and OPSEU with a term of April
1, 2009 to March 31, 2010 in respect of the Allied Professional Unit continued in
effect until November 15, 2011 and thereafter to the extent described later in this
document (Exhibit 2).
4. (a) St. Joseph’s Health Care, London (SJH) is a Hospital located in London,
Ontario with part of the Hospital being comprised of the Regional Mental
Health Care Program. That Hospital was party to three (3) separate
collective agreements in respect of its Regional Mental Health Programs
with three (3) separate bargaining units one of which was a “Paramedical
Bargaining Unit” which included Allied Professional types of
classifications.
(b) The collective agreement in effect between SJH and OPSEU in respect of
the Paramedical Unit at all material times had a duration of April 1, 2007 to
March 31, 2009 (Exhibit 3).
5. (a) Under the SJH Paramedical Unit collective agreement with OPSEU there
exists Article 22 which relates to vacations. Under Article 22 the
employees covered by that collective agreement earn vacation time and
vacation pay in a calendar year and are able to receive that vacation time
and vacation pay in the calendar year in which it is earned.
(b) Under the WRH Allied Professionals collective agreement with OPSEU
there exists Article 20 which relates to vacations. Under Article 20 the
employees covered by the collective agreement earn vacation time and
vacation pay in a vacation year of May 1 to April 30 and receive that
vacation time and vacation pay in the following vacation year.
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6. There was a planned divestment of tertiary care psychiatric beds from the SJH,
Regional Mental Health Care Program, to other Hospitals including WRH. The
divestment to WRH was planned to involve the transition of 59 mental health
beds plus two (2) Assertive Community Treatment Teams which was expected to
and did occur on November 15, 2011. The program transfer was expected to
and did involve the transfer of SJH employees covered by the SJH paramedical
collective agreement to WRH.
7. In anticipation of the transfer of Programs from SJH to WRH, an Application was
made under the Public Sector Labour Relations Transition Act to the OLRB
which involved both SJH and WRH and all affected unions. The PSLRTA, 1997
is legislation which, if applicable to a transaction/transfer, provides a legislated
mechanism for establishing through agreement and/or OLRB order the number
and description of bargaining units at the successor hospital, the bargaining
agents for each bargaining unit and the collective agreement provisions which
will sequentially apply to the bargaining units and parties. The Application
resulted in a decision of the OLRB on August 21, 2011 which incorporated
agreed items between the parties (Exhibit 4). The OLRB’s decision includes, in
part, that:
(a) The transfer from SJHC to WRH of part of its Regional Mental Health
Program constituted a partial integration within the meaning of s.19.1(2) of
PSLRTA (pg 2, Article 2, and pg 14 para 2(2)).
(b) The PSLRTA, 1997 applies to the health services integration with a
changeover date of November 15, 2011 (pg 2, Article 3 and page 14 para
2(3)).
(c) The WRH is a successor Employer and SJHC is a predecessor Employer
for the purposes of PSLRTA, 1997 (page 2 para 4 or 5 and page 14 para
2 (5) and (6)).
(d) The Allied Health bargaining unit description at the successor, WRH, is set
out at page 3, article 6 (a)(ii) and pg 15 para 2 (8).
(e) OPSEU is the bargaining agent for the Allied Health bargaining unit (pg 7
Article 7(c) and pg 15, para 2(8).
(f) That, effective upon the transfer, the parties had agreed that the collective
agreement between WRH and OPSEU Allied Professionals would
constitute a replacement agreement of the composite agreement for the
purposes of the Act with certain amendments (pg9 Article 8(c)).
(g) That the parties had agreed that employees transferring from the
predecessor SJHC to the successor WRH who are now covered by the
WRH and OPSEU Allied Professionals collective agreement shall have
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prior continuous service with the predecessor recognized under the
collective agreement (pg 12, Article 9).
8. On October 13, 2011, prior to the changeover date of November 15, 2011, the
Director of Human Resources WRH, Sharon Morris, e-mailed the OPSEU
bargaining unit President and OPSEU Financial Secretary explaining how
vacation would work for OPSEU members who transferred from the predecessor
(SJHC) to the successor Employer (WRH) on November 15, 2011 (Exhibit 5) and
who were now covered under the replacement agreement.
9. On November 14, 2011 the predecessor SJHC paid to all employees who were
transferring to the successor, WRH, all vacation pay earned in the 2011 calendar
year not yet taken or paid for the period of January 1, 2011 up to and including
November 14, 2011.
10. On November 18, 2011 the Director of Human Resources e-mailed all its
bargaining unit presidents, including the OPSEU President, again explaining how
vacation would be applied to those employees of the predecessor, SJHC, who
became employees of the successor, WRH (Exhibit 6).
11. On November 1, 2012 a group grievance involving 17 employees transferred
from SJHC to WRH was filed in relation to vacation entitlements (Exhibit 1).
12. By way of example, the parties identify the following fact situation.
Employee Chittle commenced as a full-time employee with the predecessor
SJHC September 20, 1999 as a full-time employee and had a service and
seniority date of September 20, 1999.
Under both the predecessor, SJHC, collective agreement and the successor
WRH’s collective agreement she was entitled to four (4) weeks vacation with pay.
Under the SJHC vacation pay provisions the employee earned and was entitled
to receive vacation pay in the same calendar year.
On November 14, 2011 the Predecessor was paid out all vacation pay earned
from January 1, 2011, but not yet paid out, up to and including November 14,
2011.
On November 15, 2011 the Employee transferred to the successor, WRH, and
was covered by the replacement collective agreement between WRH and
OPSEU whereby employees earn vacation time and vacation pay in a vacation
year of May 1 to April 30 in one year and receive the vacation entitlement in the
following year.
The successor, WRH, treated the employee under the replacement collective
agreement as being able to earn vacation pay from November 15, 2011 to April
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30, 2012 for which she would receive the vacation time and pay in the vacation
year from May 1, 2012 to April 30, 2013. Chittle commenced earning such
vacation pay with WRH on November 15, 2011 at the four (4) week per year
entitlement level.
The Employee earned vacation pay at a rate of four weeks per year from May 1,
2011 to November 14, 2011, which was paid to the Employee on November 14,
2011 by SJH. The Employee further earned vacation pay at a rate of pay of four
weeks per vacation year from November 15, 2011 to April 30, 2012, which was
payable as vacation pay to the Employee by WRH during the vacation year of
May 1, 2012 to April 30, 2013.
13. The parties agree that the issue to be determined is whether in the example set
out above the successor, WRH, violated Article 20 of the replacement collective
agreement between OPSEU and WRH.
(I note parenthetically that it is not disputed that for the vacation year
commencing May 1, 2013 the Employer offered all transferred employees the
opportunity to take the appropriate level of vacation time (although some of that
vacation time would be without pay as vacation pay was only calculated on
service from November 15, 2011 to April 30, 2012. )
The Collective Agreement
As noted in paragraph 7(f), following the divestment and the November 15, 2011
changeover date the transferred employees were covered by a “replacement
agreement” (see section 29 of the PSLRTA). The substance of that agreement is the
collective agreement which existed between the Union and WRH with certain specific
modifications pertaining to maintaining a superior mileage rate benefit and hourly rates
which do not apply to the issue at hand. Article 20 of the collective agreement between
the Employer and the Union is applicable to this group of employees and provides:
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ARTICLE 20- VACATIONS WITH PAY
20.01 Vacation requests and approval will be completed no later than April 1st of
each year. After April 1st vacation will be granted on a first-come basis.
20.02 Employees in the bargaining unit who have less than one year of
continuous service as of April 30th of any year, shall be entitled to a
vacation calculated as follows:
1 month’s continuous service – 1 1/4 days vacation with pay
2 month’s continuous service – 2 1/2 day’s vacation with pay
3 month’s continuous service – 3 3/4 day’s vacation with pay
4 month’s continuous service – 5 days vacation with pay
5 month’s continuous service – 6 1/4 day’s vacation with pay
6 month’s continuous service – 7 is one day’s vacation with pay
7 month’s continuous service – 8 3/4day’s vacation with pay
8 month’s continuous service – 10 days vacation with pay
9 month’s continuous service – 11 1/4 day’s vacation with pay
10 month’s continuous service – 12 1 day’s vacation with pay
11 month’s continuous service – 13 3/4 day’s vacation with pay
Such vacation with pay shall be taken after completion of an employee’s
probationary period.
20.03 Employees in the bargaining unit who have one (1) year of continuous
service but less than three (3) years of continuous service, shall be
entitled to vacation of three (3) weeks with pay at the basic straight time
rate in effect as of the date on which such vacation commences.
20.04 Employees in the bargaining unit who have three (3) years of continuous
service but less than thirteen (13) years of continuous service, effective
with the 1990 vacation year, shall be entitled to a vacation of four (4)
weeks with pay at the basic straight time rate in effect as of the date on
which such vacation commences.
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20.05 Employees in the bargaining unit who have thirteen (13) years or more of
continuous service but less than twenty-two (22) years of continuous
service, effective with the 2000 vacation year, shall be entitled to vacation
of five (5) weeks with pay at the basic straight time rate in effect as of the
date on which such vacation commences.
20.06 Employees in the bargaining unit who have twenty-two (22) years or more
of continuous service, effective with the 2000 vacation year, shall be
entitled to vacation of six (6) weeks with pay at the basic straight time rate
in effect as of the date on which such vacation commences.
20.07 Employees in the bargaining unit who have twenty eight (28) years or
more of continuous service shall be entitled to vacation of seven (7) weeks
with pay at the basic straight time rate in effect as of the date on which
such vacation commences. …
20.10 If an employee's anniversary date falls between May 1 and September 30
in any year, the entitlements in articles 20.02 up to and including article
20.07 shall apply.
(emphasis added)
Submissions of the Parties
Union counsel submitted the issue must be determined having regard to the language
of the collective agreement. That language indicates that the employee in the example
set out in the Agreed Facts is an employee in the bargaining unit who has three (3 )
years of continuous service but less than thirteen (13) years of continuous service and
is entitled to four (4) weeks' vacation with pay (article 20.04). In 2012 the Employer did
not apply article 20.04 to the employee. Instead the Employer applied article 20.02 and
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pro-rated the vacation of the employee as if the employee had less than one year of
continuous service. That is not appropriate because, as reflected in paragraph 7 (g) of
the Agreed Facts, upon their transfer the employees had their prior continuous service
with SJHC recognized under the WRH collective agreement. As they came under the
WRH collective agreement with service and seniority intact they were not employees
with less than one year of continuous service. As vacation with pay is tied only to
continuous service the employee is entitled to four (4) weeks of vacation with pay for the
vacation year commencing May 1, 2012.
The Employer submitted that article 20 of the WRH collective agreement had not been
violated. The employee has received four (4) weeks of vacation with pay for the May 1,
2012 to April 30, 2013 vacation year. For that vacation year the employee in the
example had been "advanced" vacation with pay (or simply vacation pay if they were
paid out by SJHC on November 15, 2011) for vacation earned up to November 15, 2011
when employment was transferred to WRH. Thereafter the employee continued to earn
vacation for the period from November 15, 2011 to April 30, 2012. The employee could
use that earned vacation in the May 1, 2012 to April 30, 2013 vacation year in the same
manner as existing WRH employees could use the vacation they had "earned" in one
year (April 30, 2011 to May 1, 2012) in the next year (May 1, 2012 to April 30, 2013).
However the transferred employee could not use again the vacation with pay that had
been earned prior to November 15, 2011 as that had already been advanced and taken.
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It was asserted that under the WRH collective agreement on the first day of the vacation
year (May 1 to April 30) the employee has only a conditional right to vacation with pay
depending on his/her service. It is only after the condition has been fulfilled through
service that the right to vacation with pay is vested and the employee becomes
absolutely entitled to the vacation with pay to be taken after that date (which is vacation
to be taken after May 1, 2012 in the example set out in the agreed facts). Although they
had not yet earned their vacation through service, so that the right to vacation with pay
remained conditional, the employees had been advanced a portion of their vacation with
pay for the vacation year commencing May 1, 2012 prior to their transfer to WRH. As a
result the employees could not again receive vacation with pay for the same period of
time during which paid vacation entitlement was only conditional but had nevertheless
had been advanced.
In his submissions Employer counsel relied upon Niagara Health System and Service
Employees International Union, Local 1.on (2006) 84 C. L. A. S. 235 where the
board of arbitration dealt with a situation where several hospitals were merged. The
merger eventually lead to circumstances where employees under one vacation system
under which vacation could be taken before the right to the vacation had vested (i.e.
employees earned and took vacation in the same year) were changed over to a system
where paid vacation was granted only after the condition which vests the paid vacation
had been met (i.e. vacation "earned" in one year and taken in the next).
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In the Niagara Health System supra the board stated
8] We do not take issue with any of the authorities cited to us regarding
the way in which collective agreements should be interpreted. We further
agree with the proposition supported by the authorities that entitlement to
a vacation of a particular length is something that is earned by service
over the period of service defined in the collective agreement. Looking at
Article 21 in the two collective agreements, it is our view that the language
is fairly standard and is reflective of the language found in the central
agreement between the Union and Ontario hospitals. On the first day of
the vacation year the employee has only a conditional right to the
appropriate vacation for someone with his/her service. If the employee
fulfills the condition, then the right to the vacation is vested, that is, the
right has become absolute. If a person is still an employee on the last day
of the vacation year then, depending on the years of service the employee
has attained as of that date, the employee becomes absolutely entitled to
a vacation of a given number of weeks, to be taken after that date.
[9] Let us assume that someone is hired on June 30, 2003 and works a full
year. As of June 30, 2004 that person will still be an employee and will
have completed one year of service and thus, having satisfied the
condition, become entitled to two weeks of vacation with full pay which
can be taken in the year beginning July 1, 2004. Before July 1, 2004, the
employee is not entitled to take that vacation; the right has not been
vested and is still conditional.
[10] Let us assume that instead of administering vacations that way, the
employer decides to grant employees vacations before the rights have
vested, that is during the year that the employee is working to fulfill the
condition. Using the above example, the employee hired on June 30, 2003
would be allowed to take two weeks of vacation with full pay in the year
July 1, 2003 to June 30, 2004. If the employee takes the full two weeks
with pay by June 30, 2004, then he/she is not entitled to any further
vacation in the year commencing July 1, 2004. The only thing the
employee would be entitled to is any unused portion of the two weeks. If
the employee quits or is discharged prior to June 30, 2004, having taken
the entire two weeks of vacation with full pay, then the employee must pay
back the appropriate portion of the vacation pay received because the
condition set out in the collective agreement had not been satisfied and
the employee had taken more than he/she had a right to take.
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[11] In effect, the employee in the second example notionally "owes" the
employer a decreasing amount over the course of the vacation year in
order to "repay" the employer for the vacation with full pay that has been
granted before the condition has been satisfied. If the employee works for
the full vacation year, then the amount "owed" is zero, but the employee
has used up all of the vacation to which he/she is entitled to take during
the upcoming year. Therefore, if the employee is to have any vacation in
that year there will have to be another advance against future vacation,
and so on for the duration of that employee's employment. In such a
system the final accounting will come when employment ends and
vacation taken is compared to entitlement. The employee may have to
reimburse the employer for having taken more vacation than he or she
had a right to take.
[12] If during the course of employment the Employer were to change
over to the system where the right to take the vacation is exercised after
the condition which vests that right has been met, then what will happen?
Let us assume that such a change was to take effect on June 30, 2003
and that an employee hired on June 30, 1993 has always worked in a
situation where vacations were granted in advance of the condition being
satisfied. On June 30, 2003 the employee has completed five years but
less than fifteen years of service and so, under the collective agreement,
has fulfilled the condition necessary to have the right to four weeks of
vacation with pay to be taken during the year commencing July 1, 2003. If
the employee has already taken those very four weeks during the year
ending June 30, 2003, then the Employer has satisfied its obligation under
the clause and the employee has enjoyed the right. Therefore, the
employee will have to work until June 30, 2004 in order to fulfill the
condition necessary to exercise the right to another four week vacation in
the year commencing July 1, 2004. The employee cannot be said to have
been denied a right under the collective agreement because the right was
granted in advance and in contemplation of the condition being met.
[13] It should also be noted that, in a system where the condition is met in
one year and the right is exercised in the following year, upon the
termination of the employment relationship the employee never owes the
Employer money. Rather, it is common for the Employer to owe the
employee something by way of vacation pay to recognize the portion of
the condition which has been met.
Employer counsel argued a similar rationale applied in this instance. For the vacation
year commencing May 1, 2012, in contemplation of their fulfilling the condition of service
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for that vacation year, the transferred employees had been granted vacation with pay in
advance. Having already taken or been granted (by payout) that vacation in advance
they could not now again take that vacation during the vacation year commencing May
1, 2012.
Employer counsel submitted that to hold otherwise would lead to anomalous results and
would place the transferred SJHC employees in a better position than the existing WRH
employees covered by the same collective agreement who had the same length of
continuous service. The WRH employees "earned" their four (4) weeks of vacation with
pay for the May 1, 2012 to April 30, 2013 vacation year because of their service in the
prior May 1, 2011 to April 30, 2012 year. The transferred SJHC employees may have
"earned" the same weeks of paid vacation through service during the same timeframe,
but the transferred SJHC employees had already been advanced a portion of that paid
vacation in 2011, before their transfer to WRH.
It was submitted that these employees should not be able to use the same accrual
period of time from May 1, 2011 to November 15, 2011 for two (2) purposes, namely to
earn and receive vacation with pay from the predecessor Employer SJHC, and in
addition use the same accrual period again to receive vacation with pay for the vacation
year ending commencing May 1, 2012 from the successor Employer, WRH. To permit
the same accrual period of time to be used for these 2 purposes would place the
transferred SJHC employees in a better position than the existing WRH employees who
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could only use that accrual period for one purpose, namely as service for their vacation
with pay for the May 1, 2012 to April 30, 2013 vacation year.
The Employer maintained that the Union's position in this case placed the transferred
SJHC employees in a better position than WRH employees. The WRH employees had
earned their vacation entitlement for the vacation year commencing May 1, 2012
through service in predecessor year(s). The SJHC employees would not be required to
have earned their vacation with pay for the vacation year commencing May 1, 2012
through service in the predecessor years. The result would be that over the course of
their career the employee who transferred from SJHC would receive more vacation with
pay than a WRH employee although both employees had the same amount of service.
The Employer submitted that such an interpretation, which would see similarly situated
employees treated differently, with one employee receiving a greater benefit, is
anomalous. The Employer's interpretation provides for greater consistency in treatment
and ensures all employees have been treated equally as, for purposes of vacation with
pay entitlement, the same service (May 1, 2011 to November 15, 2011) is treated in like
manner for all employees. Counsel relied upon Optec D. D. Canada Inc. and United
Steelworkers of America, Local 3997 (unreported decision of H. Snow dated July
15, 1997) for the proposition that where the Union's interpretation would lead to
anomalous results and unequal or disparate treatment of employees such interpretation
should be avoided.
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The Employer asserted also that as successor employer it stood in the shoes of the
predecessor employer, SJHC. As successor WRH assumed not only certain obligations
or liabilities, but was also entitled to take advantage of the benefits or credits which flow
through to it as successor. One of the credits which flowed to the Employer was the fact
that the transferred employees had already received vacation with pay (or vacation pay)
in respect of their service up to November 15, 2011. WRH therefore does not owe
vacation with pay for that timeframe. In the same manner that WRH has the benefit of
the fact that wages were paid for time worked up to November 15, 2011 by SJHC, and
would have been liable for those wages as successor if that had not been the case,
WRH has the benefit of the fact that vacation has been paid for the time worked up to
November 15, 2011. As vacation pay has been paid for time which would normally go
towards the accrual of vacation to be paid in the following year, WRH need not again
provide paid vacation for that time. In support of this position the Employer relied upon
the following successor employer cases: Re Diageo Canada Inc. and Canadian Auto
Workers, Local 2098 (2003) 121 L.A.C. (4th) 67 (Burkett) and Proto Metalworks
Limited and Computing Devices Canada Employees' Association (2001) 65 C. L.
A. S. 142 (Chapman).
Employer counsel argued also that through its interpretation the Union sought to
advantage the transferred SJHC employees and have them retain a "superior" condition
under which they would continue to be advanced vacation pay not yet earned. Yet, as
reflected in the Ontario Labour Relations Board decision, in the course of the PSLRTA
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application the Employer and the Union agreed upon a replacement agreement which
was the collective agreement between WRH and the Union with certain amendments
regarding superior conditions. Maintenance of the superior conditions upon which they
agreed did not include maintaining a vacation with pay benefit under which employees
were advanced their vacation pay and were able to earn and take paid vacation in the
same year. In this regard it was also argued that although the parties agreed that the
transferred employees' prior continuous service would be recognized under the WRH
collective agreement, that only entitled employees to a particular level of vacation pay.
Recognition of continuous service did not entitle the transferred employees to a different
method of how vacation pay is calculated or when it is paid than that applicable to other
WRH employees.
Decision
I have concluded that the Employer's failure to provide the employee in the example
cited in the Agreed Facts with a vacation of four (4) weeks with pay during the vacation
year of May 1, 2012 to April 30, 2013 violated article 20 of the collective agreement. I
have done so somewhat reluctantly as I recognize that, over the course of their career
with WRH, it may mean that these employees will receive somewhat more vacation
than WRH employees with the same length of continuous service than the transferred
employees whose continuous service was accumulated with both SJHC and WRH. That
fortuitous circumstance arises from the fact that the employees changed over from one
employer which had one type of vacation with pay system to another employer who
used a different system and were paid out their vacation pay by their former employer,
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SJHC. In my view that circumstance can't affect the appropriate interpretation of clear
and unambiguous collective agreement language that employees who have three (3)
years of continuous service but less than thirteen (13) years of continuous service are
entitled to a vacation of four ( 4) weeks with pay for the May 1, 2012 to April 30, 2013
vacation year.
To find otherwise and conclude that the vacation with pay entitlement of the transferred
employees for the May 1, 2012 to April 30, 2013 vacation year is pro rated is to equate
these employees with employees in the bargaining unit who have less than one year of
continuous service as of April 30, 2012. These transferred SJHC employees do not fall
within that category.
It is not disputed that transferred employees had their prior continuous service with
SJHC recognized. Recognition of that service (without reservation) entitles the
transferred employees to be treated in accordance with article 20.03 up to and including
article 20.07 of the collective agreement. Recognition of that prior continuous service
means that these employees do not fall within article 20.02 so that their vacation with
pay entitlement should not be calculated in terms of days of vacation with pay
depending on their months of continuous service with WRH from November 15, 2011.
In interpreting the provisions of this collective agreement it is apparent that article 20
establishes the level of vacation with pay to which employees are entitled based on
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years of continuous service. The article also establishes how employees move from one
level to the next having regard to their continuous service and their anniversary date
(see article 20.10). There is nothing in the language of article 20, or in any of the other
documents tendered in evidence, which permits me to apply the concept of continuous
service set out in the article differently to some employees merely because that
continuous service accrued or was accumulated in part with a predecessor employer.
The Employer argues that as successor Employer it steps into the shoes of SJHC and
can therefore get credit for the vacation pay paid out by SJHC prior to the transfer. I
accept that WRH steps into the shoes of SJHC and assumes both the benefits and
liabilities which accompany the status as successor employer. In this case however
that merely means that WRH is not liable for any 2011 vacation pay owed to employees
up to November 15, 2011. As successor Employer WRH can take advantage of, or
receive the benefit of, the fact that SJHC paid employees what they were owed up to
that date. Thus, for example, if a transferred employee's employment was terminated
prior to April 30, 2012, WRH would only be obliged to pay vacation pay accrued from
November 15, 2011 to the date of the employee's termination because the employee
had received all vacation pay owed up to November 15, 2011 from SJHC. In this regard
the Employer's analogy to the liability for wages owing/or the benefit of wages paid
which flows to a successor Employer is apt.
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The analogy is less precise however in the case of vacation with pay where, as here,
there is a midyear change to the method by which vacation pay accrues and vacation
with pay is taken. That employees are not owed vacation pay for 2011 does not
address the entitlement of an employee for the vacation year commencing May 1, 2012.
At that point the employees are under the WRH collective agreement. Entitlement under
that collective agreement is service based and, as an employee with twelve (12) years
of service, the employee in the example is entitled to four (4) weeks of vacation with pay
for the vacation year from May 1, 2012 to April 30, 2013.
I have reviewed the Niagara Health System supra award and find that it does not apply
as both the circumstances and the applicable language of the collective agreement and
the various letters of understanding at issue in that case are different than the language
and circumstances of the instant case. In my view Niagara Health System supra also
does not apply to the current circumstances because the vacation with pay taken by
employees prior to November 15, 2011 (or the vacation pay paid out at November 15,
2011 by SJHC ) was not an "advance" by WRH of vacation with pay for the May 1, 2012
to April 30, 2013 vacation year. Instead the vacation with pay taken (or vacation pay
received from SJHC) was with respect to the vacation pay owed by SJHC for the 2011
vacation year. That vacation entitlement of employees arose under the SJHC collective
agreement and was owed to employees by SJHC before the employees became WRH
employees.
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That the vacation pay was not an advance on the WRH vacation year commencing May
1, 2012 and ending April 30, 2013, but was with respect to vacation pay owed by SJHC
for the 2011 vacation year is underscored by the fact that at the hearing, in response to
a question, Union counsel indicated that one or more of the transferred employees had
to "payback" a portion of vacation pay received during 2011 at the time of the transfer
on November 15, 2011. The reason for the pay back was because prior to that date
they had taken more 2011 vacation with pay than they had earned or had a right to
take. The vacation pay had to be paid back to SJHC which was the Employer who had
advanced the vacation pay while the employee was in their employ. If the vacation with
pay taken had been an "advance" by WRH for the vacation year commencing May 1,
2013 there would not have been any requirement to pay back because the timeframe
for meeting the condition to become absolutely entitled to that vacation with pay had not
yet passed. The employee could still work until April 30, 2012 and thus have "earned"
and become absolutely entitled to the vacation with pay that had been taken.
For all of these reasons I have concluded that the question posed in paragraph 13 of
the agreed facts must be answered in the affirmative. The employee in the example is
entitled to four (4) weeks' vacation with pay for the May 1, 2012 to April 30, 2013
vacation year.
The parties agreed that I should remain seized with respect to any remedial issues
arising from the implementation of this award.
22
Dated at Mississauga this 4th day of December, 2013.
Louisa Davie
Louisa M. Davie