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HomeMy WebLinkAboutUnion 87-11-23 CAAT (~)~ OPSEU 9 87R74 OPSEU LOC. 556 Article(s): 4.01 & 5.01 UNION (OPSEU) vs. Georg~ Brown College Award dated November 23, 1987 (K.M. Burkett) Claims that a teacher is entitled to be paid the bonus under Article 5.01 of 10% of annual salary for teaching in July or August and~ in addition, the compensation for work in excess of the maximum workload provisions as provided in Article 4201(11) (d) of the Collective Agreement, College takes the position that the only entitlement is the 10% per month bonus provided under Article 5.01. Board rules that Article 4~01(11) (d) refers only to the "academic year" - i.e. - September 1 to June 30 - and does not refer to anything "outside the academic year" - i.e. - July and August. Grievance dismissed. Dissent by Union Nominee. IN THE MATTER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE AND: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF UNION GRIEVANCE NO. 87R74 BOARD OF ARBITRATION: Kevin M. Burkett - Chairman R. W. Pirrie - College Nominee Jane Byrne - Union Nominee APPEARANCES FOR THE C.G. Riggs - Counsel COLLEGE: Sally Layton - Director of Personnel APPEARANCES FOR THE Eric Lord - President UNION: Amy Thornton - Chief Steward A hearing in this matter was held in Toronto on September 18, 1987 AWARD 1. The grievance before me concerns the amount that a teacher is entitled to be paid for a teaching assignment occurring in July or August. More specifically, the union claims that a teacher is entitled to be paid the bonus under article 5.01 of ten percent of annual salary for teaching an eleventh month and, in addition, the compensation for work in excess of the maximum workload provisions as provided in article 4.01(11) (d) of the collective agreement. The college takes the position that the only entitlement in these cir- cumstances is the ten percent per month bonus provided under article 5.01. There is no dispute with respect to my authority to hear and determine this matter. 2. The relevant provisions of the collective agreement are set out below: "ARTICLE 4 - WORKLOAD 4.01 (1) Effective September 1, 1986, each teacher shall have a workload that adheres to the provisions of this Article. 4.01 (2) (a) Total workload assigned and attributed by the College to a teacher shall not exceed forty-four (44) hours in any week for up to thirty-six (36) weeks in which there are teaching contact hours for teachers in post-secondary programs including nursing and for up to thirty-eight (38) weeks in which there are teaching contact hours in the case of teachers not in post-secondary programs. The balance of the academic year shall be reserved for complementary functions and professional development. Workload factors to be considered are: (i) teaching contact hours (ii) attributed hours for preparation (iii) attributed hours for evaluation and feedback (iv) attributed hours for complementary functions. (b) A "teaching contact hour" is a College scheduled teaching hour assigned to the teacher by the College. 4.01 (11) (a) Contact days (being days in which one or more teaching contact hours are assigned) shall not exceed one hundred and eighty (180) contact days per academic year for a teacher in post-secondary programs or one hundred and ninety (190) contact days per academic year for a teacher not in post- secondary programs. (b) Weekly contact hours assigned to a teacher by the College may be scheduled into fewer than five (5) contact days and such compressed schedule shall be'deemed to be five (5) contact days. (c) Teaching contact hours shall not exceed six hundred and forty-eight (648) teaching contact hours per academic year for a teacher in post-secondary programs or seven hundred and sixty (760) teaching contact hours per academic year for a teacher not in post- secondary programs. (d) Compensation for work in excess of the maxima set out above shall be paid by the College to the teacher on the basis of: (i) 1/180 or 1/190 respectively of the teacher's annual salary for each contact day in excess of the 180 or 190 contact day annual maximum; (ii) 0.1% of the teacher's annual salary for each teaching contact hour in excess of the 648 or 760 teaching contact hour annual maximum. Such compensation shall be for the greatest amount and shall not be pyramided under this clause or under 4.01(10). 4.03 The academic year shall be ten (10) months in duration and shall to the extent it be feasible in the several colleges to do so, be from September 1 to the following June 30. The academic year shall in any event permit year-round oPeration and where a College determines the needs of any program other- wise, then the scheduling of a teacher in one or both of the months of July and August shall be on a consent or rotational basis. ARTICLE 5 - VACATIONS 5.01 A member of the teaching faculty who has completed one full academic year's service with the College shall be entitled to a vacation of two months as scheduled by the College, except that a member assigned to teach for an additional month (llth month) over the normal teaching schedule of the equivalent to ten months as part of a continuous twelve-month program, shall be entitled to a vacation of one month as scheduled by the College. Such member shall also receive a bonus of ten percent of the employee's annual salary for the additional eleventh month of teaching assignment to De paid on completion of such assignment. A member assigned to teach in the eleventh month for less than a full month will be entitled to a pro-rata amount of the ten percent bonus referred to above to be paid on completion of such assignment. A member of the teaching faculty teaching in a continuous program shall not be required to teach for more than twelve consecutive months without a scheduled vacation of at least one (1) month. It is understood that the above provisions for vacations are not intended to prohibit Colleges from scheduling non-teaching periods at Christmas and New Year's, or at any other mid-term break. " 3. The union argues that all days, including days outside the normal academic year defined in article 4.03, are to be compensated in the amount stipulated in article 4.01(11) (d). The union maintains that the intent of article 4.01(11) (d) is to compensate the teacher at approximately double time for the days When teaching occurs beyond the maximum by paying either 1/180 or 1/190 of annual salary per day in addition to normal salary. The union submits that if such overtime teaching extends into what would normally be vacation time for a teacher the teacher is entitled to both the "bonus" stipulated in article 5.01 and the overtime payment stipulated in article 4.01(11) (d). The union draws a distinction between the dictionary definition of the. term "compensation" as used in article 4.01(11) (d) which is "payment, remuneration" and the term "bonus" as used in article 5.01 which is "money or an equivalent given in addition to an employee's usual compensa- tion''. The union asks us to find that the bonus required under article 5.01 is in addition to the compensation required under article 4.01(11) (d). 4. The college argues that articles 4.01(11) (d) and 5.01 are separate and distinct articles providing for mutually exclusive payments. It is the position of the college that article 4 - Workload - details the conditions under which an employee works and is paid during the academic year which, the college points out, is defined in article 4.03 as being of ten months duration, from September 1 to the following June 30, wherever feasible. The college refers to the many references to the "academic year" in article 4.01 in support of its position that article 4 deals with workload and related payments during the academic year. The college points out as well that the overtime payments required under article 4.11(d) are derived from the workload maximums set out in article 4.01(2) and article 4.11(a), (b) and (c) which, it maintains, on the express terms of these articles apply over the course of the academic year. The college maintains that article 5.01, on the other hand, pertains to the period outside the academic year (i.e., July and August) and that the overtime provisions that apply during the academic year (i.e., September-June) cannot be exported beyond the academic year on the language of either article 4 or article 5. The college argues that on the plain language of article 5.01 and in the absence of any language to the contrary a teacher who teaches during the July/August vacation period is entitled to the bonus of ten percent of annual salary and nothing more and asks me to so find. 5. The task that is before me is to determine, on the language of the collective agreement, the monetary entitle- ments of teachers assigned to teach during July and/or August. I observe at the outset that there is no compelling labour relations rationale that draws me towards one of the two interpretations urged upon me. Rather, the issue is one of quantum and as such falls to be determined on the plain meaning of the language that the parties have agreed to. Did the parties agree that a teacher required to teach outside the academic year should 'be paid the equivalent of his/her regular salary (i.e., the bonus) and, in addition, overtime or do they agree that the teacher would be paid the equivalent of his/her regular salary (i.e., the bonus) and nothing more? 6. I first turn to article 4 of the collective agree- ment. I am satisfied beyond any doubt that the intention of the parties in drafting article 4 was to establish the outer limits of both the academic year and the workload that would be required of a teacher within the academic year. Article 4.03 defines the academic year as extending, wherever feasible, from September 1 to June 30. Article 4.01(2) speaks in terms of the maximum assigned and attributed workload and lists the complementary functions that "the balance of the academic year shall be reserved for". Article 4.01(11) (a) expressly limits the number of contact days "per academic year" and article 4.01(11) (c) expressly limits the number of contact hours "per academic year" This takes us to article 4.01(11) (d). Article 4.01(11) (d) is designed to establish the level of compensation to be paid "for work in excess of the maxima set out above". The "maxima set out above" are the maximum contact days and contact hours that are expressly referenced to the "academic year". There is nothing in article 4.01(11) (d) to extend the payments stipulated thereunder to work performed outside the academic year, nor is there any reason to infer that such would have been the intention of the parties under article 4.01(11) (d). This is not to say that the parties could not have extended the provisions for payment for work in excess of the academic year maxima to work performed outside the academic year elsewhere in the collective agreement. 7. We are referred to article 5.01 - Vacations. That article provides that a teacher is entitled to a vacation of two months "except that a member assigned to teach for an additional month (llth month) ... shall be entitled to a vacation of one month" The parties were careful when they drafted the language, therefore, to make it clear that the vacation period would be one month such that the assignment to teach the eleventh month would be outside the vacation period for a %eacher so assigned. The clause goes on to provide that "such member shall also receive a bonus of ten percent of the employee's annual salary for the additional eleventh month of teaching" These words suggest to us that the parties agreed that in return for having what would otherwise be a two month vacation reduced to one month a teacher would be paid one-tenth of his/her salary for the ten month academic year; that is, the equivalent of a month's salary during the academic year. There is no language in article 5.01 or elsewhere suggesting that in addition to the ten percent bonus the teacher is somehow entitled to the compensation payments under article 4.01(11) (d) that apply within the academic year when workload maxima are exceeded. The absence of any such reference, especially when contrasted to the express provision under article 6.02 for holidays for teachers who teach an eleventh month, leaves no doubt in our mind that the parties did not intend such payments to apply. 8. These parties have drafted a collective agreement that establishes a workload regime that applies during a ten month academic year· In addition, under the vacation provision they have expressly dealt with the question of compensation for an eleventh month of teaching. There is nothing in the agreement to support the contention that a teacher who teaches outside the academic year is somehow entitled to not only the payment stipulated in article 5.01 for such work (which is the same as he/she would earn for teaching an equivalent period during the academic year) but also to the payment that is expressly made to apply where workload maxima are exceeded during the academic year. The use of the word "bonus" in article 5.01 does not assist the union where the scheme that has been established is for the payment of an annual salary for teaching performed over a ten month academic year such that any payment over and above the annual salary, including payment for an eleventh month, could be construed as a "bonus"; i.e., an amount in addition to what is normally paid. 9. Having regard to all of the foregoing this grievance is hereby dismissed· j,/~ DATED at Toronto the 23rd day of Nov Cha~rm~ ~ I concur "R. W. Pirrie" College Nominee I dissent "Jane Byrne" Union Nominee DISSENT I must respectfully dissent from the Award of the Majority. And I do so reluctantly, having regard to the significant expertise of the Chairman in the Labour Relations field. There are no facts in dispute. As the majority indicates, the issue is one of quantum and as such fails to be determined on "the plain meaning of the language that the parties have agreed to". The most significant linguistic use in the Collective Agreement is the use in Article 4.01(II)(d).of the word compensation, and the use in Article 5.01 of the word bonus. Webster's Dictionary defines these words as follows: COM.PEN.SA.TION b : PAYMENT, REMUNERATION - com.pen.sa.tion.al BO NUS 1: something given in addition to what is usual or strictly due 2 a Brit : DIVIDEND lb b: money or an equivalent given in addition to an employee's usual compensation It is obvious, from a plain meaning of the words that bonus means more than normal compensation. However, if the Employer's position is restated, it signifies that the "bonus" becomes the compensation in July and/or August. If that is the case, then what the Employer is concerned about is another form of pyramiding. But the parties have in Article 4.10(II)(d) specifically addressed thi's issue and have restricted it to Article 4. Why didn't they do the same thing for July/August bonuses? It is also interesting to note the Headings of the Articles. Article 4 talks about "Workload" and Article 4.03 clearly contemplates July and August workloads if a ten month year is not feasible. Article 5, however, is entitled "Vacations" --- a totally different concept. It is drafted from that perspective and is not meant to attack the legitimacy of the broader workload issue. I dissent from the Majority Award. I would have allowed the grievance.