HomeMy WebLinkAboutUnion 14-03-24 IN THE MATTER OF AN ARBITRATION PSEU
2014
BETWEEN: amilton
lonal officq
PEEL REGIONAL PARAMEDIC SERVICES
OF THE
REGIONAL MUNICIPALITY OF PEEL
(The "Employer")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION,
Local 277
(The "Union")
AND in the matter of a Union policy grievance
ARBITRATOR: William A. Marcotte
APPEARANCES:
FOR THE EMPLOYER: M. Wong, sr. legal counsel
J. Sawchuk, supr., L.R.
M.P. Kowalchuk, H.R. assoc.
P.F. Dundas, chief, para. sere.
FOR THE UNION: M. Bevan, gr. officer, OPSEU
D. Wakely, pres, Loc. 277
T. Szumlanski, Loc. 277
Hearing held in Mississauga on March 3, 2014.
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AWARD
In its grievance dated October 28, 2012, the Union claims the Employer "has
erred in its interpretation of the collective agreement pregnancy top up
provisions." By way of remedy, the Union seeks for the Employer to "honour
the intent of the parties and continue the practice of topping up pregnancy
leave for a period of 24 weeks." The Employer position is there has been no
breach of the collective agreement.
The parties submitted an AGREED STATEMENT OF FACTS as follows:
1. The Union is the exclusive bargaining agent that represents 460
(319 full-time, 114 part-time, 23 contract, and 4 job share) Primary
Care Paramedics and Advanced Care Paramedics within the
Employer's Paramedic Services.
2. This grievance concerns the interpretation of pregnancy and
parental leave benefits. The Union hold the position that pregnancy
leave is for 26 weeks. The Employer takes the position that the top-up
is in accordance with the Employment Standards Act(i.e. 17 weeks).
3. The Employer and the Union were parties to a Collective Agreement
between the dates of April 1, 2010 and March 31, 2012.
(Tab 1 - Collective Agreement effective April 1, 2010 to
March 31, 2012)
4. Article 16.05 of that Collective Agreement set out pregnancy and
parental leave benefits as follows:
16.05 Pregnancy and Parental Leave
Pregnancy and Parental leave will be granted in accordance with
the provisions of the Employment Standards Act, R.S.O. 1980, as
amended from time to time and specifically as amended by Bill 14,
Chapter 26, Statutes of Ontario 1990.
(a) In respect of the period of pregnancy leave, payments made
according to the Employer's Supplementary Unemployment
Benefit Plan will consist of the following:
(i) For the two week employment insurance waiting period,
payments equivalent to sixty-six and two-thirds percent (66-
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2/3%) of the actual weekly rate of pay for their
classification, which they were receiving on the last day
worked prior to the commencement of the pregnancy leave;
and
(ii) Up to a maximum of twenty-four (24) additional weeks,
payments equivalent to the difference between the sum of
the weekly Employment Insurance (EI) benefits the
employee is eligible to receive and any other earning
received by the employee, and eighty percent (80%) of the
actual weekly rate of pay for their classification, which they
were receiving on the last day worked prior to the
commencement of the pregnancy leave.
(b) In respect of the period of parental leave, payments made
according to the Employer's Supplementary Unemployment
Benefit Plan will consist of the following:
(i) For the two week Employment Insurance (EI) waiting
period, payments equivalent to sixty-six and two-thirds (66-
2/3%) of the actual weekly rate of pay for their
classification, which they were receiving on the last day
worked prior to the commencement of the pregnancy leave;
and
(ii) Up to a maximum of twenty-six (26) additional weeks;
payments equivalent to the difference between the sum of
the weekly El benefits the employee is eligible to receive and
any other earnings received by the employee; and eighty
percent (80%) of the actual weekly rate of pay for their
classification, which they were receiving on the last day
worked prior to the commencement of the pregnancy leave.
5. The Collective Agreement effective April 1, 2001 to March 31, 2004
(the "2001 Collective Agreement") had a pregnancy and parental
leave top-up provision that read as follows:
Article 7 PREGNANCY AND PARENTAL LEAVE TOP-UP
7.01 In respect of the period of pregnancy leave, payments made
according to the Company's Supplementary Unemployment Benefit
Plan will consist of the following:
(a) For the two week employment insurance waiting period,
payments equivalent to sixty-six and two-thirds percent (66-2/3%)
of the actual weekly rate of pay for her classification, which she
was receiving on the last day worked prior to the commencement of
the pregnancy leave; and
(b) Up to a maximum of twenty-four (24) additional weeks,
payments equivalent to the difference between the sum of the
weekly Employment Insurance (EI) benefits the employee is eligible
to receive and any other earnings received by the employee, and
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eighty percent (80%) of the actual weekly rate of pay for her
classification, which she was receiving on the last day worked prior
to the commencement of the pregnancy leave.
7.02 In respect of the period of parental leave, payments made
according to the Employer's Supplementary Unemployment Benefit
Plan will consist of the following:
(a) For the two week Employment Insurance (EI) waiting period,
payments equivalent to sixty-six and two-thirds percent (66-2/3%)
of the actual weekly rate of pay for her/his classification, which
she/he was receiving on the last day worked prior to the
commencement of the pregnancy leave; and
(b) Up to a maximum of twenty-six (26) additional weeks, payments
equivalent to the difference between the sum of the weekly El
benefits the employee is eligible to receive and any other earnings
received by the employee, and eighty percent (80%) of the actual
weekly rate of pay for her/his classification, which she/he was
receiving on the last day worked prior to the commencement of the
pregnancy leave.
(Tab 2 - Pregnancy and Parental Leave Top-Up Article,
Collective Agreement effective 2001-2004)
6. The language of the pregnancy and parental leave provision
changed for the renewed Collective Agreement effective 2004-2007
(the "2004 Collective Agreement"). The language of the pregnancy
and parental leave top-up provision contained in the 2004
Collective Agreement has been incorporated into all renewals to
date (see paragraph 4, above).
(Tab 3 - Pregnancy and Parental Leave Top-Up Article,
Collective Agreements effective 2004-2007 and 2007-
2010)
7. In December 2004, the Employer assumed responsibility for land
ambulance services in the Regional Municipality of Peel and thereby
inherited the 2004 Collective Agreement.
8. Since assuming the operations of the land ambulance services in
December 2004, the Employer had a practice of providing a top-up
period of 24 weeks since December 2004.
9. On January 27, 2012, the Union. sent Notice to Bargain to the
Employer. The parties commenced negotiations to renew the
Collective Agreement in April 2012.
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10.In bargaining, the Employer's proposals included the reduction of
the top-ups under the pregnancy and parental leave provisions
(article 16.05) to bring the benefit into line with the Employer's
other collective agreements and non-bargaining benefits, and based
on comparator paramedic services.
ll.The Union would not entertain this proposal; the bargaining unit
has a significant female component
12.On the morning of October 22, 2012, the Employer withdrew the
proposal.
13.In conjunction with the withdrawal, the Employer provided the
Union with written notice that it would be providing pregnancy and
parental leave top-up payments in compliance with the actual
language of Article 16.05(a) and 16.05(b) of the collective Agreement
and would cease its practice of providing top-up payments over and
above the amounts provided for in Article 16.05(a), (b) (the "Notice").
(Tab 4 - Notice Regarding Interpretation of Article 16.05
- Pregnancy and Parental Leave dated October 22, 2012)
14. The Union stated that it disagreed with the interpretation of the
Employer of Article 16.5 as set out in the Notice.
15. Later that day, the parties entered into a Memorandum of
Settlement for a new collective agreement, subject to their respective
principals' and memberships' ratification.
(Tab 5 - Minutes of Settlement dated October 22, 2012)
16. The Union filed a grievance dated October 28, 2012 against the
Employer claiming that management "has erred in its interpretation of
the collective agreement pregnancy top up provisions", and seeking
that the Employer "honour the intent of the parties and continue the
practice of topping up pregnancy leave for a period of 24 weeks".
Tab 6 -- Grievance Form dated October 28, 2012)
17. OPSEU's ratification meeting was held on November 2, 2012.
OPSEU's membership did not ratify the Memorandum of Settlement
that was recommended to the membership by OPSEU's executive
bargaining committee. The Employer's principals - its elected Regional
Council, ratified the Memorandum of Settlement on November 8, 2012.
18. The finalization of the Collective Agreement was referred to interest
arbitration. The Union argued that the Notice was an "extraneous
event" and as such "the Memorandum of Settlement must be rejected
as indicative of a freely bargained outcome." Arbitrator Burkett stated:
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Without in any way supporting or otherwise commenting upon the
Employer's interpretation of article 16.05, Pregnancy Leave, the Employer
is correct in its characterization of the notice as a bargaining piece as
distinct from an extraneous event that outweighs the evidentiary value of
the Memorandum. While the Union was taken aback and clearly in
disagreement with the interpretation of the pregnancy leave top-up
provision advanced by the Employer, it had a number of options available
to it by reason of the fact that the bargaining was continuing: it could
have held out for a confirmation of the pre-existing application of the
clause as it does here; it could have sought other gains in order to offset
the possible loss of seven weeks of pregnancy leave top-up, as it seeks
here; based on its submissions here, it could have withdrawn from
bargaining pending the filing of a bad faith bargaining complaint before
the OLRB; or it could have simply broken off bargaining in protest.
However, after continuing to bargain for several hours, it entered into the
Memorandum of Settlement that was then put to its membership and in
so doing evidenced its understanding that notwithstanding the
contentious notice (the application of which could still be fought through
grievance arbitration), the terms of the Memorandum of Settlement
constituted a reasonable resolution to the collective bargaining exercise.
The Employer's decision to withdraw its pregnancy leave top-up demand
during bargaining and to then, also during bargaining, give notice to the
Union that henceforth it would interpret article 16.05 as requiring
pregnancy leave top-up in accordance with the Employment Standards
Act (i.e. 17 weeks) does not constitute an event extraneous to the
bargaining. It follows that the Employer action relied upon by the Union
does not negate the weight accorded to the subsequently entered into
Memorandum of Settlement as evidence of a reasonable collective
bargaining result.
Accordingly, and consistent with the relevant jurisprudence, I hereby
award that the parties enter into a renewal collective agreement that
contains all the terms and conditions of the predecessor collective
agreement save and except that it is amended to incorporate the terms of
the October 22, 2012 Memorandum of Settlement between the parties.
(Tab 7 -- Interest Arbitration Award of Sole Arbitrator Kevin
Burkett, dated January 11, 2013)
19. Pursuant to the Interest Arbitration Award, the parties entered
into a renewal collective agreement effective April 1, 2012 to March
31, 2015.
(Tab 8 -- Collective Agreement effective April 1, 2012 to
March 31, 2015)
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20. On January 22, 2013, the Employer advised all employees within
the Peel Regional Paramedic Services of the change in practice with
respect to pregnancy and parental leaves.
(Tab 9 - Email from Bed Addley, Deputy Chief, Paramedic
Operations, to all staff, dated January 22, 2013 re:
Pregnancy and Parental Leaves)
21. On February 7, 2013, the parties met under the final step of the
grievance procedure set out in the Collective Agreement. On February
11, 2013, the Employer provided its Step Two response to the Union.
(Tab 10 - Step Two Response re Pregnancy Top-up Policy
Grievance dated February 11, 2013)
At the hearing, the parties referred to the following provisions of the
Employment Standards Act, 2000 (the "ESA"):
49(l) An employee's pregnancy leave ends,
(a) if she is entitled to parental leave, 17 weeks after the pregnancy
leave began;
(b) if she is not entitled to parental leave, on the day that is the
later of,
(i) 17 weeks after the pregnancy leave began, and
(ii) six weeks after the birth, still-birth or miscarriage.
49(1) An employee's parental leave ends 35 weeks after it began, if the
employee also took pregnancy leave and 37 weeks after it began,
otherwise.
Reference was also made to the Employment Insurance Act ("EI Act") as follows:
12(1) If a benefit period has been established for a claimant, benefits may
be paid to the claimant for each week of unemployment that falls in the
benefit period, subject to the maximums established by this section.
(3) The maximum number of weeks for which benefits may be paid in
a benefit period
(a) because of pregnancy is 15;
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13. A claimant is not entitled to be paid benefits in a benefit period until,
after the beginning of the benefit period, the claimant has served a two
week waiting period that begins with a week of unemployment for which
benefits would otherwise be payable.
The Union submitted that under art. 16.O5(a)(ii) the Employer, since the first
collective agreement between the parties some 10 years ago, has always paid 24
weeks of pregnancy leave. In providing for 24 weeks of coverage, the parties
agreed to provide a greater benefit than employees are entitled to under the
ESA. That agreement, moreover, has been in place under 3 collective
agreements notwithstanding the Employer's attempts in negotiations and at
interest arbitration to change the language of art. 16.O5(a)(ii) to reflect coverage
for 15 weeks, in addition to the 2-week EI waiting period. In negotiations that
resulted in the current collective agreement the Employer, after a hiatus in
negotiations over the previous 2010-2012 agreement, again proposed its
sought-for reduction to 15 weeks from 24 weeks of coverage. When the Union
did not agree, the Employer withdrew its proposal and put the Union on notice
that it would change its practice, hence, the grievance at hand. That change,
however, amends the language of art. 16.O5(a)(ii) but which amendment or
modification does not lie within unilaterally decision.-making on the part of the
Employer.
The Union argued that the structure of the relevant collective agreement
provisions, when considered in light of the ESA and EI provisions relating to
pregnancy leave and payment entitlements, indicates that what the parties
intended was not a 15-week/35-week "split" plus 2 weeks waiting for EI.
Rather, they intended for a female employee to be off for one year, on a 24/26
"split" with the 2-week waiting period, i.e., equivalent to the one year provided
under the ESA and El legislation. That is, they added 9 weeks to pregnancy
leave by reducing parental leave by 9 weeks. However, under the Employer's
interpretation, a female employee would lose 9 weeks of top-up. Not only does
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the collective agreement not allow for that to occur, but the Employer's
interpretation raises a human rights issue since the only group affected by its
interpretation are female paramedics, such affect being that 9 weeks of the
contemplated 1-year leave would not be topped up. Rather, the parties
negotiated the provisions of their agreement so as to provide full coverage for
female paramedics for one year.
The Union submitted that the phrase "up to a maximum of twenty-four (24)
additional weeks" in art. 16.05(a)(ii) does not provide the Employer with the
ability to determine that a lesser number of weeks of payments will be made.
Rather, that determination lies within the employee's decision-making ability.
The Union argued that if the Employer is correct, that art. 16.05(a)(ii) allows for
only 15 weeks of coverage in accord with the EI, 9 weeks of payments are lost to
the employee. However, the EI Act covers parental leave for 35 weeks, which is
exactly 9 weeks less than what is covered by the collective agreement. The
Employer cannot "cherry pick" pregnancy leave of only 15 weeks while ignoring
other provisions for parental leave. Rather, it is allowable to add the 9 weeks of
pregnancy leave to the 35 weeks of parental leave resulting, when all allowable
leaves are totalled, in one year of coverage for female paramedics.
The Employer submitted that it is not reducing coverage to 15 weeks from 24
weeks, rather, it is simply applying the language of the collective agreement. In
that respect, in the negotiations over the current collective agreement the
Employer properly notified the Union of its intention to change the past
practice, notwithstanding the Union's objection to the Employer's decision.. The
change in practice does not give rise to a human rights complaint in that
pregnancy leave is for females and there is no suggestion of discrimination or
bad faith on the part of the Employer.
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The Employer submitted that art. 16.05 must be read as a whole. In that
regard, pregnancy leave SUB Plan top-up is governed by that article in two
respects. The first is that pregnancy leave is granted in accordance with the 17
weeks provided for under the ESA. The second is that an employee must be in
receipt of EI benefits, as addressed in the first sentence of art. 16.05(a)(ii) in
that s. 47(1) of the ESA establishes leave in the normal course of events, while
s. 47(1)(b) addresses special circumstances. That 17-week period provided for
in s. 47(1)(a) falls within the 24-week period specified in art. 16.05(a)(ii). Under
the SUB Plan, the period of time for coverage consists of the 2-week waiting
period for EI benefits under s. 13 of the EI Act and "up to" a maximum of 24
weeks. The Employer takes into account the employee's EI benefits and tops
up that amount up to 80% of that employee's actual rate of pay. That is, the
SUB Plan is tied to the time of the recognized pregnancy leave and under the EI
Act, ss. 12(3)(a) provides for entitlement to benefits to 15 weeks of the 17 weeks,
i.e., including the 2-weck waiting period. The parties did not intend to top up
SUB Plan payments up to 26 weeks where the ESA provides for 17 weeks only
and EI provides for 15 weeks of EI benefits. The Union position leads to the
absurd result of entitlement benefits for longer than the ESA provides.
The Employer submitted it is not changing the language of art. 16.05(a)(ii) to
read up to a maximum of "15" additional weeks, rather, "up to" 24 weeks
means up to 15 weeks or somewhere between 15 and 24 weeks in accord with
the ESA and EI provisions. If the Union is correct, then ESA leave time granted
would be independent of the SUB Plan in that top-up is limited to a maximum
of 17 weeks under 16.05(a)(i) and (ii). The Employer argued that given the 17
weeks provided for under the ESA and EI, there is nothing to top-up beyond
that time period.
The Employer submitted it is but speculation on the part of the Union to
suggest an intent on the part of the parties to provide for 1-year coverage for
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female paramedics; there is no evidence to support that argument. The
Employer is not saying there can be no coverage up to 24 weeks, but only that
coverage be in line with the ESA and EI benefits. In any event, an employee is
free to choose a lesser amount of the time provided for under those statutes.
The issue to be determined in this award is whether or not the Employer
improperly limits SUB Plan payments, in the normal course, to 17 weeks under
art. 16.05(a)(i) and (ii). I find the merits of the grievance, on the evidence and
submissions before me, require determination of the correct or proper
interpretation of the language of art. 16.05(a). Where the issue in dispute
requires interpretation of collective agreement language, in Brown and Beatty,
Canadian Labour Arbitration, 41h ed. (Aurora, Ont.: Canada Law Book, Inc.), the
authors aptly address the arbitrator's responsibility at para. 4:2100:
As one arbitrator, quoting from Halsbury's Laws of England, stated in an
early award:
"The object of all interpretation of a written instrument is to
discover the intention of the author, the written declaration of
whose mind it is always considered to be. Consequently, the
construction must be as near to the minds and apparent intention
of the parties as is possible, and as the law will permit.
But the intention must be gathered from the written instrument.
The function of the Court is to ascertain what the parties meant by
the words they have used; to declare the meaning of what is written
in the instrument, not of what was intended to have been written;
to give effect to the intention as expressed, the expressed meaning
being, for purposes of interpretation, equivalent to the intention."
Accordingly, in determining the intention of the parties, the cardinal
presumption is that the parties are assumed to have intended what they
have said, and that the meaning of the collective agreement is to be
sought in its express provisions.
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In applying the above approach to the matter at hand, art. 16.05, entitled
"Pregnancy and Parental Leave", states that both types of leaves "will be granted
in accordance with the provisions of the Employment Standards Act..."
Relevant to our purposes, s. 46(1) states that, "A pregnant employee is entitled
to a leave of absence without pay..." in the normal course. Section 46(2)
indicates when such leave can be taken by the employee relative to her due
date or the date of birth. Section 47(2) addresses when the unpaid pregnancy
leave ends, in two ways:
(a) if she is entitled to parental leave, 17 weeks after the pregnancy leave
began;
(b) if she is not entitled to parental leave, on the day that is the later of,
(i) 17 weeks after the pregnancy leave began, and
(ii) 6 weeks after the birth, still-birth or miscarriage.
That is, the ESA concerns itself with the beginning and ending of unpaid
pregnancy leave. Similarly, the ESA addresses, in sections 48 and 49, when an
unpaid parental leave may begin (s. 48(2)), when it may begin if pregnancy leave
has been taken (s. 48(3)), and, when parental leave ends (s. 49(1)). Thus, these
matters concerning pregnancy and parental leave apply to those leaves under
art. 16.05.
In regard to art. 16.05(x), its provisions deal with the matter of an employee's
entitlements to pay, i.e., a matter not covered by the ESA. Rather, payments
are to be made "according to the Employer's Supplementary Unemployment
Benefit Plan (the "SUB Plan"). Thus, while the tinning of a pregnancy leave is
governed by the provisions of the ESA, any payments made to the employee
during that leave are governed by the provisions of the collective agreement
under art. 16.05(a) and are separate and distinct form the provisions of the
ESA.
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Under art. 16.05(a)(i), the collective agreement provides for a payment under
the SUB Plan equivalent to 66 2/3% of the employee's actual rate of pay for the
"two week employment insurance waiting period", which period of time is
specified in s. 13 of the Employment Insurance Act. Under art. 16.05(a)(ii),
payments by the SUB Plan are in the amount of the difference between the sum
of weekly El benefits for which the employee is eligible "and eighty percent
(80%) of the actual weekly rate of pay" for the employee. (Other income to be
taken into account as well.) Such payments, moreover, are to be available to the
employee "up to a maximum of twenty-four (24) additional weeks", i.e.,
additional to the 2 weeks' payment under art. 16.05(a)(i). That is, while EI
benefits are limited to a maximum of 15 weeks under ss. 12(3)(a) of the
Employment Insurance Act in the case of a pregnancy, there is no 15-week limit
provided for in art. 16.05(a)(ii) rather, the parties are agreed the limit is 24
weeks.
As to whether or not an employee is entitled to receive SUB Plan payments
beyond the 15 weeks of EI payments under ss. 12(3)(a) of the EI Act, art.
16.05(a)(ii) states that SUB Plan payments are to be provided to an employee
"up to a maximum of twenty-four additional weeks." If the Employer's
interpretation is found to be correct, namely, limiting those payments to 15
weeks in the normal course, then the above language is rendered meaningless.
However, in construing contract language, the presumption is that "all words
are intended to have some meaning" Brown and Beatty, supra, para 4:2120.
The clear meaning of the language in issue is that SUB Plan payments are to be
made "up to" 24 weeks and not "up to" 15 weeks. The Employer argues,
however, that because an employee is not eligible to receive EI benefits beyond
15 weeks, there is no basis on which to calculate SUB Plan payments as
provided for in art. 16.05(a)(ii). If that were the case, again, the clear agreement
that employees are entitled to receive up to 24 weeks of SUB Plan payments
would be rendered meaningless. Rather, the reference to "(EI) benefits the
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employee is eligible to receive" is solely made for purposes of calculating the
amount of SUB Plan payments and is not made for purposes of determining
eligibility for those payments.
On the basis of the foregoing examination of the language in issue, I find the
language of art. 16.05(a)(ii) clearly and unambiguously means that an employee
is entitled up to 24 additional weeks of SUB Plan payments. I find that same
language does not support the Employer's interpretation. Having so found, I
need not deal with extrinsic evidence before me in aid of interpretation of
impugned language.
The grievance, therefore, is upheld.
Dated at Toronto, this 241h day of March, 2014.
William A. Marcotte
Arbitrator
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