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HomeMy WebLinkAbout1990-1564.Union.91-09-12 ONTARIO EMPLOY£S OE f...A COURONNE CROWN EMPL 0 YEES DE L'ONTA RIO GRIEVANCE C,OMMISSION DE SETiLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUfTE 2?00, TORONTO, ONTAR[O. fvf5G 1Z8 TELEPHONE/TEL~PHONE~. ~76) 326-~38& 780, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO.L MSG IZ8 FACSIA41~.E/Tr~L~dCOPIE ; [476) 326-~396 1564/90 IN THE MATTER OF AN ARBITRATION Under- THE CROWN EMPLOYEES COLLECTIVE BARGAINING Before THE GRIEVANCE. SETTLEMENT BOARD BETWEEN CUPE (Union Grievance) Grievor a~d- The Crown in Right of Ontario (Metro Toronto Housing Authority) Employer BEFORE: B. Keller Vice-Chairperson · I. Thomson Member G. Milley Member FOR THE R. Carnovale ~RIEVOR National Representative CUPE Local 767 FOR THE K. Billings EMPLOYER Counsel Miller, Thomson Barristers & Solicitors HEARING: July 25, 1991 - 2 - DECI S ION The griever seeks to have the method of' calculating total earnings for vacation entitlement adjusted to include Workers' Ce~.~.pensation Board (W. C. B. )~ payments. Following a Board award between these two parties in 1977, W.C.B. payments and supplements were included in total earnings for the purposes of vacation entitlement. On July 9, 1985 the union was informed that henceforth, only the supplement would be considered. A grievance ~n the issue was filed in January 1988 and withdrawn in July of that year. It was not raised again until October 1990 at which time the union invited the employer to meet and discuss the issue. No agreement resulted and the instant grievance was filed in June of 1990. It was agreed that the action of the union created an estoppel. Thus if the Board finds in favor of the union on the substantive issue the remedy would have effect only as of January 1, 1991, the commencement of the collective agreement subsequent to the one under which the grievance was filed. - 3 - The language in dispute read~ as fo~!ows: ~RTICLE 17 - V~C~TIONS 17.01 Vacation leave and vacation pay will be computed from July 1 in each year to June 30 of the following year iK~lusive and Will accrue on the follo%,ing basis: (i) For less than one (1) year of continuous service as of June 30, one and one quarter (1 1/4) days of vacation leave for each full aompleted calendar month of service up to a maximum of fifteen (15) days and the employee shall be entitled to receive as vacation pay an amount equal to six percent (6%) of total earnings for the vacation year 'provided that on commencing employment an employee shall not be permitted to take vacation until the employee has completed six (6) months of continuous service. (ii) Effective July 1, 1989, for one year or more but less than eight (8) years of continuous service as of June 30, fifteen (15) days of vacation leave and six percent (6%) of total earnings for the vacation year. (iii) Effective Juiy 1, 1989, for eight (8) years or more but less than sixteen (16) years of continuous service as Of June 30, twenty (20) days of. vacation leave and eight percent (8%) of total earnings for the vacation year. (iv) Effective July 1, 1989, for sixteen (16) years or more but less than twenty-five (25) years of continuous service as of June 30, twenty-five (25) days of vacation leave and ten percert (10%) of total earnings for the vacation year. (v) For twenty-five (25) years or more of continuous service as of June 30, thirty (30) days of vacation leave and twelve percent (12%) of total earnings for the vacation year. 17.02 An Employee is not eligible for the entitlements under 17.01 in respect of: (~) a whole calendar month, in which he is absent from duty for any reason other than vacation leave of absence or leave of absence with pay. (b) a period in excess of six (6) months during which a Workers' Compensation Board award is in effect unless the award is being supplemented with accumulated credits during any part of such whole montk. The union argues that this Board, in two previous decisions has already determined the issue in dispute. In Sears, 1129/86 (M. Picher) a decision dealing with language under the OPSEU collective agreement the Board had to determine if the grievor was wrongfully'deprived of the accrual of vacation-credits while receiving W.C.B. benefits. The Board found that the grievor was on a leaue-of-a~sence with pay and entitled, to the continued - 5 - accrual of vacation credits. In Dupuis 1335/86 (Knoph), the issue was the same as in'Sears. The Board quoted with approval, at lenqth from Sears and adopted the analysis as their own. ~:ne Board then dealt with the decision of Blake 1276/87 (shime), stating that it was incumbent on a party~seeking to have a panel deviate from an earlier decision of the Board to establish "exceptional circumstances". None were found in that case, The employer submits that the instant case is distinguishable from Sea~s and Dupuis as the language to be interpreted in the instant case provides for vacation pay as a percentage of total earnings. The employer then submits that monies paid by the W.C.B. are not earnings but are more akin to an insurance payment. The Board is referred to the award in Re: B.C. Transit a_nd Independent Canadian Transit Union. Locals !, 2 & 3, (1988) 3 L.A.C. (4th) 15) (MacIntyre), where the arbitrator finds that W.C.B. benefits are not included in the phrase "gross earnings". The Board was also referred to the W.C.B. Act and a Revenue Canada, Taxation, ~nterpretation Bulletin in support of their position. The first question that must be determined is whether the instant case is distinguishable from Sears and Du~q~. If it is not, then following the decision in Blake, the grievance must succeed. The employer submits that the in£~ant case is distinguishable as the language provides for two entitlements: vacation leave and vacation pay. The language interpreted in Sears and Dupuis makes reference only to entitlement. While the argument of the employer has an initial attraction, we must conclude that it is without merit. The Board ~n Sears and DuDuis determined that an employee in receipt of Workers' Compensation Benefits is .on a leave of absence with pay. That particular ~ovision is found in the instant collective agreement (A.17.02(A)). Therefore following the principle in Blake, the conclusion reached in Sears and Dupuis that an employee in receipt of W.C.B. benefits is on a leave of absence with pay must apply in 'this case. If an employee is on a leave of absence with pay it then follows that the monies received are, for the purposes of tha collective agreement, pay. Pay is undoubtedly part of total earnings within the meaning of A.17.01 and the grievance succeeds. Following what - 7 - was said above regarding the employer's estoppel argument, any compensation owing would be only as of January 1, 1991. The Board remains seized to deal with any issue that might arise from the implementation of the ~nstant decision. Nepean this [2t~aY ofseptembe~991 M~ Brian Keller, Vice-Chair G. Milley, Employer Member Thomson, Union Me~ber