HomeMy WebLinkAboutUnion 02-11-09
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Concerning an arbitration
Between:
Salvation Army Community Living
and
Ontario Public Service Employees Union, Local 153
Union Grievance concerning entitlement to vacations following a strike
Arbitrator: Joseph W. Samuels
For the Parties
Union
Mitch Bevan, Grievance Officer
Carol Warner, Staff Representative
Charlene Lunn Tuszynski, Unit Chairperson
Diana Smith, Local President
Employer
Chris White, Counsel
Captain Bev Hamilton, Executive Director
Hearing in London, November 8, 2000
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The Union grieves that the Employer violated the collective
agreement by pro-rating vacation entitlement for full-time employees to
allow for the four months off work during a strike.
The previous collective agreement expired on March 31, 1999. The
parties had great difficulty coming to agreement on the contract for the
succeeding years. The employees were on strike from December 14, 1999
to April 10, 2000. And then the parties reached agreement on their
contract for the period April 1, 1999 to March 31, 2001.
The period in respect of which vacation is earned each year is July 1
to June 30 (lets call this the "entitlement period"). When the employees
returned to work after the strike, they learned that the Employer would
pro-rate the vacation and vacation pay for 2000 based on the proportion of
the "entitlement period" actually worked.
The contractual provisions governing vacation entitlement are as
follows.
The collective agreement provides for vacation entitlement in Article
18.01, which says that "A full-time....employee shall receive an annual
vacation with pay in accordance with the employee's years of
employment...", and then goes on to say how long the vacation with pay
will be for each year of employment and how much will be paid during
this vacation. For example, in the calendar year of the 1 st anniversary of
employment up to but not including the calendar year of the 12th
anniversary, a full-time employee is entitled to "3 weeks" vacation period
and "120 hours" pay.
In the new collective agreement, the parties inserted a note to Article
18.01, to "clarify" the entitlement to vacation pay. It reads:
Full-time employees working a schedule under
which they are regularly scheduled to work fewer
than forty (40) hours per week shall have their
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vacation pay entitlement pro-rated to reflect their
schedule, ego an employee regularly scheduled to
work thirty (30) hours per week would receive 90
hours of vacation pay while they were entitled to
three (3) weeks of vacation time.
And in the Return to Work Protocol following the strike, paragraph
1.3 says, with respect to vacation accrual:
Vacation accrual shall be provided in accordance
with Article 18.01 of the collective agreement.
Employees will have the option to be paid out 0 r
to bank vacation time. Employees who have
already had approval of vacation may have the
option of rescheduling their time off 0 r
continuing with the prearranged vacation time. It
is understood that the Employer will have to take
into consideration the continuity of resident care
during the process of reintegration of individuals
returning to the program.
In my view, the language of this collective agreement is clear that a
full-time employee's entitlement to the vacation period and vacation pay is
based solely on seniority and not on earnings or the number of hours
worked, except in the case of "full-time employees working a schedule
under which they are regularly scheduled to work fewer than forty (40)
hours per week", in which case the vacation pay entitlement is pro-rated to
reflect their schedule, ego an employee regularly scheduled to work thirty
(30) hours per week would receive 90 hours of vacation pay while they
were entitled to three (3) weeks of vacation time.
There are collective agreements under which vacation entitlement is
based on some formula tied to the actual work done, or to the employee's
earnings relative to some "nonnal" amount of earnings. But the collective
agreement here is not one of these. This collective agreement bases
vacation entitlement on seniority alone. In such a case, the jurisprudence is
clear that time lost during a strike does not affect vacation entitlement. See
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the discussion of this issue in, for example, Re Hydro Electric Commission
of the City of Ottawa and Canadian Union of Public Employees, Local 200
(1978), 19 LAC (2d) 283 (Scott); Re Nova Scotia Association of Hospital
Organizations (Glace Bay Community Hospital) and Canadian Brotherhood
of Railway, Transport & General Workers, Local 607 (1991), 24 LAC
(4th) 246 (O'Connell); Re Pulp & Paper Workers of Canada, Local 3, and
Rayonier Canada Ltd. (1972),24 LAC 225 (Cumming).
The Employer argues that, in spite of the clear language of the
collective agreement, the past practice concerning the administration of the
provisions governing vacation entitlement shows that the employer has
historically pro-rated vacation in some circumstance-
. where an employee has moved during the year from part-time
to full-time status or vice versa, the vacation entitlement was
calculated as if for a part-time employee for the period of the
year during which the employee was a part-time employee,
and calculated as if for a full-time employee for the period of
the year during which the employee was a full-time employee
. where the employee is regularly scheduled to work less than
40 hours per week
. where the employee has taken an unpaid leave of absence
. where the employee wishes to take vacation before June 30
(the final day of the "entitlement period"), in which case the
pre-June 30 period off is pro-rated, but the employee is able to
take the rest of her vacation after June 30.
And the Employer goes on to argue that this past practice has two
possible consequences-
. it demonstrates the mutual interpretation of the provisions of
the collective agreement, or
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. it demonstrates that the Union has represented that it will not
enforce the strict meaning of the collective agreement and
therefore the Union is estopped now from returning to the
strict enforcement of the agreement, because this would be
prejudicial to the Employer. It is said that, had the Employer
known that the Union intended to enforce the terms of the
agreement strictly, the Employer would not have agreed to the
new collective agreement without some additional change in
the language.
There are a number of problems with the Employer's argument.
Firstly, there were other situations where employees did not work
continuously for the full "entitlement period" and the vacation was not pro-
rated. For example, if sick time is exhausted, the employee is given a leave
of absence without pay for the remaining period of illness, but the vacation
entitlement is not affected. Nor is vacation entitlement pro-rated for leaves
of absence without pay for Union leave. Thus, there was not a consistent
practice which would suggest that vacation entitlement was always tied to
the actual hours of work during the "entitlement period".
Secondly, the pro-ration which was applied in the case of an
employee moving during the year from part-time to full-time or vice versa
seems to flow out of the language of the collective agreement, which
provides for differing vacation entitlement depending on the employee's
status as full-time or part-time. This practice says nothing about the way in
which the Employer is to administer the vacation provisions for an
employee who is full-time throughout the "entitlement period".
Thirdly, with respect to the situation where an employee's vacation
was pro-rated to take into account an unpaid leave of absence, there is no
satisfactory evidence to show that the Union was aware of this, and it
appears that it happened only once in the last five years.
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Fourthly, with respect to the pro-ration for employees regularly
scheduled to work less than 40 hours per week, this practice was
acknowledged and confirmed expressly in Article 18.01 in the last round of
negotiations. The fact that no other pro-ration was mentioned suggests that
this particular example is to be treated differently from other situations.
Fifthly, the practice of pro-rating a vacation taken before June 30
does not really bear on our issue at all. The point is that, once the
employee completed the "entitlement period", the employee was then
entitled to the balance of the vacation entitlement. In the end, there was no
pro-ration of the annual vacation entitlement.
In sum, there was no evidence to suggest that there was a mutual
understanding that, in spite of the clear language of the collective
agreement, the Employer could pro-rate vacation entitlement in a situation
such as the strike. And there was no representation by the Union that it
would not enforce its strict rights under the collective agreement, so there
is no estoppel. While I can appreciate the Employer's feeling that it would
be reasonable that the vacation entitlement should be abated in a year when
the employees have only worked for two-thirds of the year, vacation
entitlement is determined according to the language of the contract between
the parties, and the contract here is clear that there is no such abatement.
For all these reasons, the grievance is allowed. I will remain seized
to deal with any issues which result from this award.
Done at London, Ontario, this 9th day of November, 2000