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HomeMy WebLinkAbout1992-3051.Union.94-07-19 ( ~ ~ f~ I ONTARIO EMPLOYES DE LA COURONNE ' , CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE I SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (416) 326-1396 3051/92 ! IN THE MATTER OF AN ARBXTRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Ministry of Health/Danver Ambulance Services) Employer BEFORE: R. ~erity Vice-Chairperson P. Klym Member ! M. Milich Member FOR THE A. Ryder UNION Counsel Ryder Whitaker Wright Barristers & Solicitors I FOR THE E. Keenan EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors , \ HEARING February 14, 1994 May 17, 18, 1994 --- ~ ~ ( 2 D E CIS ION '" In a polidy grievance dated December 31, 1992, the union gri~ves the manner in which the Advanced Life Support (A.L.S'.) allowance for ambulance officers was calculated and paid during the final quarter of 1992. The relevant collective agree~ent is for a two year period from January 1, 1992 to December 31, 1993. The provision in dispute is contained in Schedule "A" of the collective agreement and reads as follows: A.L.S. PROGRAH (a) The Company agrees to provide to all employees who have received their training and qualification in respect of the first phase of } the Advanced Life support Program an amount equivalent to an additional 43 cents per hour for each regular hour worked Overtime hours will not be so compensated It is understood and agreed that the 43 cent per hour amount will not form a part of the employee's regular hourly rate for any purpose The additional amount earned at the 43 cent per hour rate will be paid to the employee on a quarterly basis The additional amounts payable pursuant to this paragraph will be paid retroactive to April 21st, 1988, or the date the employee became certified as qualified in respect of the first phase of the Advanced Life support program It is understood ~hat all employees must maintain their certification in respect of the Advanced Life support Program, and if any employee loses such certification he or she will automatically lose entitlement t~ the 43 cent per hour premium (b) If, during the life of this Agreement, the allowances and entitlements for employees concerning Advanced Life support (ALS) are increased or improved for Ambulance Officers in the ontario Public service, the same allowances and entitlements shall apply to employees under this Agreement on the same date The union contends that s . 2 of Schedule "A" provides for parity with the Ontario Public Service collective agreement between Management Board of Cabinet and OPSEU for the same period. That - - - ~-~- \ ~ \ (. I J 3 agreement provides in Schedule IV - B3 "an allowance of $900.00 per ) annum ($0.43/hour) for provision of defibrillation skills." It is , common ground that there has been no increase or improvement in the premium allowance or entitlement in the O.P.S. agreement. Since 1988, the practice at Danver Ambulance was to pay a lump sum of $225.00 quarterly to a maximum of $900.00 annually to qualified ambulance officers for the A.L.S. allowance, regardless of the number of hours worked. However, in the fourth quarter of \ 1992, the employer unilaterally changed the practice by paying the allowance on the basis of $0.43 per hour II for each regular hour ) worked" to reflect the formula contained in s.2(a) of Schedule "A" of the collective agreement. According to Danver Ambulance Owner- Operator Dan McArthur, the change in paYment was one of a number of I cost saving-measures implemented to address the employer's deficit. By that time, the Ontario Government had made it clear that it I would not provide "settlement funds" to cover the ambulanbe service J defi.,cit. Asked why employees were ,paid $225.00 quarterly I regardless of hours worked, Mr. McArthur stated that the money was there at the time and that the employees were given the benefit of monies then available. The policy grievance \ . from the ar~ses "- employer's change in practice. Some background information may be helpful ~o understand the issues in dispute. Danver Ambulance Service Inc. is one of 21 Ontario ambulance services which has been designated a Crown Agent r ~ ( ( 4 under the Crown Employees Collective Barqaininq Act. Danver Ambulance, which provides ambulance services to Dundas, Flamborough and surrounding communities, employs 12 full-time and 10 part-time employees. App~rently, Danver was certified by OPSEU in 1982. The ( )first collective agreement under the Crown Emplovees Collective Bargaining Act was successfully negotiated between the parties for the period April 1, ) 1991- in 1992 1990 to December 31, However, , Danver entered into a joint bargaining arrangement with a number of participating ambulance services pursuant to a memorandum of ) agreement dated March 10, 1992. That agreement provided for central bargaining of a number of monetary issues including A.L.S. and that the balance of issues would be resolved locally. In a J memorand~ of settlement dated March 27, 1992, all central issues were resolved. Under Advanced Life Support, the settlement read as follows: ~ If, during the life of the Agreement, the allowances ~nd entitlements for employees concerning Advanced support (ALS) are increased or improved for Ambulance officers in the Public service, the same allowances and entitlements shall apply to employees under this Agreement on the same date However, in the case of the Agreements for Bancroft, Lewis, parham, Seaforth-Clinton and Temagami Ambulance services, in no event will there be such retroactivity prior to January 1, 1992 \ This provision did not result in any change to the language contained in the previous agreement between Danver Ambulance and OPSEU, Local 256. In fact, the language in the settlement of May 27, 1992 is virtually identical to the language contained in s.3(b) ! of Schedule "A" in the parties' previous agreement for the period April 1, 1990 to December 31, 1991. \ ~-, ( , .;, \, ( 5 The parties were unable to resolve a number of local issue,s and failing settlement, some seven outstanding local issues were referred to interest arbitration. Arbitrator Paula ,Knopf was called upon to determine the issues. At the hearing on June 19, 1992, the I union requested the implementation of a sick leave plan which would provide individual employees with 90 hours of sick leave. Management opposed the req_uest on the grounds that the proposal represented a significant cost factor which could not be justified in light of budgetary .restrictions imposed by the Ministry of Health. In an award dated July 1, 1992, Arbitrator Knopf awarded a sick leave plan to a maximum of six shifts in any calendar year. ; Owner-Operator Dan McArthur testified that the Ontario Government did not fund the benefit awarded at interest arbitration. Accordingly, Danver Ambulance implemented a number of cost sav~ng measures whereby one vehicle was taken out of service on statutory holidays, employees who were sick were not replaced and the A.L.S. premiums were reduced on the adjusted formula. The union called two witnesses. Danver Ambulance Officer Joe Savelli t~stified that he had been paid $225.00 quarterly for the A.L.S. allowance from the time of his initial hire in April 1991 until the fourth quarter of 1992. In fact, in December 1992, Savelli was paid $147.82 to reflect the fact that he worked 344 hours. Paul Taylor is a civil servant employed by Niagara District \ { .. \ ( 6 Ambulance Service. He testified that he was paid $34.40 bi-weekly under B-3 of Sched~le IV of the O.P.S: agreement. He went on to describe circumstances in which his allowance would be reduced. The union contends that the employer is estopped from changing the manner in which it applies the collective agreement in mid- term. In the alternative, Mr. Ryder contends that s. 2(b) of Schedule "A" of the collective agreement provides parity with B-3 of the O.P.S. agreement and that it is not conditional upon having' a similar or identical collective agreement. In support, the union cites the following authorities: Re CN/CP Telecommunications and Canadian Telecommunications Union (1981), 4 L.A.C. (3d) 205 (Beatty); and Delta Chelsea Inn and The Hotel Employees Restaurant' Employees Union, Local 75 (unreported, August 7, 1990 (Blair)). On the other hand, the employer argues that there is no basis for the application of estoppel in the absence of either a representation or detrimental reliance. In addition, Ms. Keenan contends that the parity argument has no application in circumstances where the government has not increased the allowance payable to 0 ;. PC. S . officers. The employer cited one authority; \ namely, Re Commonwealth Holiday Inns of Ca.nada Ltd. (Holiday Inn of Don Valley) and Hotel and Restaurant Employees' and Bartenders' International Union, Local 75 (1983), 9 L.A.C. ( 3d) 32 (Brent) . \ '" l / \, 7 On the issue of estoppel, the union contends that it is inequitable for the employer to alter its practice of paying $225.00 quarterly and that it is estopped from relying upon the strict terms of the collective agreement. The doctrine o.f estoppel by conduct was expressed in the CN/CP Telecommunications case, in the terms of an earlier award, at pp. .207-8 as follows: The doctrine of promissory estoppel, or more properly on the facts of the case before us, estoppel by conduct, has as its modern source the judgment of Denning, J , in central London property Trust Ltd v High Trees House Ltd, [1947], 1 K B 130 This doctrine as subsequently developed and elaborated by Denning, L J , in the case of combe v combe, [1951] 1 All E R 767 at p 770, holds that: The principle, as I understand it, is that wher~ one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word More specifically as elaborated in an extrajudicial exposition, Denning, L J, explained that the doctrine is only applicable in those circumstances (i) where the parties have already entered into a definite and legal contractual or analogous relationship (but see Watson v Canada Permanent Trust Co. (1972), 27 D L R (3d) 735, [1972] 4 WW R 406 (B C s C ) and generally David Jackson, "Estoppel as a sword", 81 L Q R 84 (1965))~ (ii) that there must be some conduct or promise "wh~ch induces the other party to believe that the strict legal rights under the contract 'will not be enforced or will be kept in susp~nse'" ~ and (iii) that "having regard to the dealings which have taken place between the parties" ~ it will be inequitable to allow that party to enforce their strict legal rights with respect to this last condition Denning, L J , has written \ But where the party has made no promise, express or implied, and all that can be said against him is that he by his conduct has induced the other to believe that the strict rights under the contract will not be enforced or kept in suspense, then the position is different because there is no question of good faith -- no question of a man keeping his 'Word In those circumstances it may be necessary for the other party to show not only that he acted, but also that he acted to his detriment, in the belief that the strict rights would not be enforced That is what is necessary in the case of .an \ ( 8 estoppel and there is no good reason why it should not be necessary here "- It is a generally accepted arbitral principle that an arbitrator or a board of arbitration should proceed with caution in applying the doctrine of promissory estoppel where the representation is alleged to be an established work practice. In that regard, we would adopt the rationale of Arbitrator Weatherill in his publication, "A Practical Guide to Labour Arbitration Procedure" (1987), where he states at p. 90: Where an arbitrator is asked to find that a party is estopped by its words or conduct -- by some representation intended to affect the legal relations of the parties, and on which the other party has relied to its detriment -- from relying on the provisions of the collective agreement, or indeed (as some awards might suggest), from changing some practice or reneging on some form of promise separate from the collectiv~ agreem~nt, the arbitrator should surely proceed with great care In. such a case the arbitrator is really being ~sked to enforce some other agreement than the coltective agreement, and to become in some general way the judge of the parties' conduct, rather than the interpreter of their negotiated agreement According to the Danver collective agreement, the A.L.S. allowance is paid to qualified employees on the basis of an additional $0.43 per hour "for each regular hour worked" . The thrust of the union's estoppel argument is that the parties by their conduct .have placed a certain interpretation on the language of the agreement. The union maintains that the representation made by the eIllployer is the practice since 19~8 of paying a quarterly allowance in the sum of $225.00, and the detrimental reliance was said to be the signing off of wages in two subsequent agreements ( ! ("~, / 9 based on the practice. Clearly, there was no express representation by the employer to that e~fect and we find that there was no such representation to be implied from the employer's conduct. Similarly, there was no - evidence of detrimental reliance. In adjusting both the calculation and paYment of the A.L.S. allowance based on "$0.43 per hour for each regular hour worked", the employer is not "changing the rules of the ballgame" but rather is relying upon the formula expressed in Schedule "A" of the collective agreement. While admittedly there lare circumstances where a party may be estopped from relying upon the strict terms of the collective agreement, in our view, this is not the proper case for the application of the doctrine of estoppel. \ In the alternative, the union maintains that by the inclusion of s.2(b) in Schedule "A", the parties have agreed to parity with the Ontario Public Service in terms of paYment of the A.L.S. premium. with respect, we do not read s.2(b) in that fashion. In our view, the parity argument has no application to the facts before us. The A.L.S. program provided in the Danver Ambulance collective agreement is a separate and distinct allowance from the benefit described in Schedule IV B-3 of the O.P.S. agreement. S.2(b) of the Danver collective agreement comes into effect to provide matching benefits only in the event that the allowances and entitlements in the public service agreement are increased or I ~ C 10 improved for O.P.s. ambulance officers~ Accordingly, in the ~ absence of any increase or improveIii~nt, in the defibrillation "- I'" allowance specified in the O.P.S. agreement, 2(b) of Schedule "A" has no application. For all of the above reasons, this grievance is dismissed. DATED at Brantford, Ontario, this 19th day of July, 1994. I ---==-- ~--~~- I ~ I . . . . . . . . . . . . . . . . . .. z....._........... R. L. VERITY, Q.C. - VICE-CHAIRPERSON I I I Dissent 'Dissent Attached' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . P. KLYM - MEMBER ~~~~~~.............. M. MILICH - MEMBER ) I ( > ( , DISSENT OF UNION NOMINEE With great respect for my colleagues on the Panel, I cannot agree with their position regarding the issue of estoppel The employer paid the ALS allowance in a lump sum of $225.00 ) from 1988 until the quarterly fourth quarter of 1992 Payment in this manner extended ov.er three collective agreements Surely this practice over this period of time is evident of representation by Conduct ) Regarding the issue of detrimenta~ reliance, I would find that also is present The issue of ALS was a subject for bargaining in the jo~nt barg~ining sessions. The ALS issue was settled by adding a clause identical to the ) existing 3(b) of Schedule A of the Dahver agreement in I . the collect~ve agreements of other ambulance services where it did not already exist. No mention was made regarding any proposed changes in the method of payment Had this happened, the Union would have had an opportunity to bargain on this issue while it was still on the table. Secondly, during the interest arbitration hearing before Arbitrator Paula Knopf, on the issue. of sick pay benefits, the employer did argue that this was a significant cost item that cannot be justified in light of budgetary restrictions ) J " ~J ........:"... ( ( , i cannot be justified in li~ht of budgetary restrictions However, while it had the opportunity, the employer did not present the positio~ to the arbitrator and the Union that one of the consequences of implementing the proposed sick pay benefit could be a change in the practice of paying ALS. Had it done so, ,I the Union would have had an opportunity to factor this into its I \ position before the arbitrator. \ ) The employer in fact kept paying the ALS according to existing practice even after all the 1992 negotiations were completed. Then without warning, the employer unilaterally changed the payment method at the end of the fourth quarter of 1992 I would find the grievance should succeed on the basis of estoppel. There was representation by conduct and there was detrimental reliance by the Union. ( fiC4~ P. Klym, Member . ( (