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HomeMy WebLinkAboutUnion 94-10-19O.P.S.E.U., Local 594 v. Toronto (Metropolitan) Family..., 1994 CarswellOnt 1907 1994 CarswellOnt 1907, [1994] L.V.I. 2627-3 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.1 1994 CarswellOnt 1907 Ontario Arbitration O.P.S.E.U., Local 594 v. Toronto (Metropolitan) Family Service Assn. 1994 CarswellOnt 1907, [1994] L.V.I. 2627-3 Family Service Association of Metropolitan Toronto and Ontario Public Service Employees Union and its Local 594 Schiff Arb. Judgment: October 19, 1994 Docket: None given Counsel: Kelly Myers-Allen and Brenda Bowlby, for the Employer. Sally MacEwen and Richard Nabi, for the Union. Subject: Labour; Employment Stanley Schiff, Arbitrator: Award & Reasons 1      The union grieves that the Association violates the collective agreement by refusing to recognize accrual of vacation credits during any time that an employee is on pregnancy or parental leave. At the hearing the union also argued that the refusal violates the Employment Standards Act and the Human Rights Code of Ontario. As remedies the union asks a declaration of violation and an order that all employees denied vacation credits during the past twelve months while on pregnancy or parental leave shall have the credits added back. 2      The relevant provisions of the collective agreement are these: 14.01 Seniority, as referred to in this Agreement, shall mean actual accumulated active service within the bargaining unit calculated from last date of hire. ... 14.05 Where an employee is on an authorized leave of absence, seniority and service may accumulate, unless otherwise specified in the Collective Agreement, for a leave period of up to, but not to exceed six (6) calendar months. 18.01 All requests for leaves of absence, including compassionate leave and education leave and other than for bereavement leave or illness, shall be made in writing, setting out the reasons for the request and submitted to the employee's manager for approval not later than seven (7) prior to the requested date of leave. The Association, at its discretion, may grant such leave, with or without pay. 19.01 (a) Pregnancy leave is a leave of absence without pay by reason of the employee's pregnancy for a period of seventeen (17) weeks. (b) Parental leave is a leave of absence without pay for a period of eighteen (18) weeks for: (i) a natural parent; (ii) a person with whom a child is placed for adoption; O.P.S.E.U., Local 594 v. Toronto (Metropolitan) Family..., 1994 CarswellOnt 1907 1994 CarswellOnt 1907, [1994] L.V.I. 2627-3 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.2 (iii) a person who is in a relationship of some permanence with the parent of a child and who intends to treat the child as his or her own. 19.04 For employees, other than probationary employees, seniority continues to accrue during pregnancy leave or parental leave. 20.02 Empoyees shall be entitled to vacations as follows: 1. Employees who are employed on a full work week basis shall be entitled to up to one hundred and forty (140) working hours annually which shall accumulate from the date of employment in accordance with the formula set out in Schedule VIII on the basis of active service. ... 2. Any employee who has completed fifteen (15) years of service who is employed on a full work week basis shall be entitled to one hundred and seventy-five (175) working hours annually which shall accumulate in accordance with the formula set out in Schedule VIII on the basis of active service. ... 20.09 In determining the period of continuous service of employees on the active payroll for the purpose of vacation entitlement, active employment means actual attendance at the workplace or location as designated by the Association, and the performance of work, but includes absence from work for vacations and holidays, or personal illness covered by sick credits. 3      It is the union's position that, since seniority, as defined by section 14.01 as "actual accumulated active service", accrues under section 19.04 for any person on pregnancy or parental leave, time on leave counts as "active service" for the purpose of vacation credits under section 20.02. The union also puts the argument another way. Seniority as defined in section 14.01 is identical in meaning with "active employment" as found in section 20.09, defining that service needed to qualify for vacation credits. The accruing seniority directed by section 19.04 must therefore be taken into account for the purpose of calculating vacation credits under section 20.02. Section 42(4) of the Employment Standards Act bolsters both arguments, says the union, because the parties have failed to say clearly that seniority is significant for the purpose of calculating vacation credits. Moreover, section 3 of the Act prohibits and nullifies contracting out of an employment standard, and that is what denying vacation credits here does. Beyond that, the denial is the imposition of a penalty contrary to section 44. 4      As I see it, the union's argument fails to account for both the precise language of this agreement and the well- understood meaning of seniority in labour relations parlance. Seniority denotes the actual span of time that a person has had an ongoing employment relationship with a particular employer dating from the occasion of hiring. That meaning is reflected in section 14.01 of the agreement by the words "actual accumulated active service ... calculated from last date of hire." Section 14.05, applicable to leaves of absence generally, then makes sure that, absent anything to the contrary in the agreement, measurement of the time span is not affected by an authorized leave of six months or less. Section 19.04, applicable specifically to pregnancy and parental leaves, then does the same for such leaves exceeding six months under the terms of section 19.01. The time span of the employment relationship, of greater or lesser length, is commonly an important factor for determining promotion, layoff and recall. The collective agreement here adopts seniority as one of the measuring sticks for them all. See section 12.06 for promotion, section 15.01 for layoff and section 15.07 for recall. 5      But the time period of service, that is, the time span of the employment relationship, is not the qualification this collective agreement demands for vacation credits. Section 20.09 makes the matter very clear: "active service", defining vacation entitlement under section 20.02, and its equivalent "active employment" mean "actual attendance at the workplace or location as designated by the Association and the performance of work ...". While time away because of vacations, holidays or illness covered by sick credits is immediately said to count as attendance for work, authorized leave of any kind is not mentioned. Therefore, since those on pregnancy or parental leave are not in "actual attendance ..." nor "perform[ing] work", their time away does not count under section 20.02 as "active service" and cannot be included O.P.S.E.U., Local 594 v. Toronto (Metropolitan) Family..., 1994 CarswellOnt 1907 1994 CarswellOnt 1907, [1994] L.V.I. 2627-3 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.3 in calculating vacation entitlement. Under section 19.04 their seniority has continued to grow, but their entitlement to vacation credits under section 20.02 has not. 6      As the Association points out, other arbitrators have given similar readings to provisions governing seniority, pregnancy leave and vacations when the language of particular collective agreements has distinguished as badges to entitlement the time span of the employment relationship and the actual days of work. E.g., Re Lions Gate Hospital and Hospital Employees' Union (1979), 23 L.A.C. (2d) 308, 309-10 (Larson, chairman); Re Parry Sound District Welfare Administration Bd. and OPSEU (1993), unreported (Kennedy, chairman); Re Kennedy House Youth Services Inc. and OPSEU (1994), unreported (Grant, chairman). The contrary conclusion in Re Canadian Red Cross Society and OPSEU (1993), 38 L.A.C. (4th) 78 (Samuels, chairman), may depend on the particular definition of seniority in the applicable collective agreement. That is how the board in Kennedy House read the award. If that is not a plausible ground of distinction, I simply disagree with both the reasoning and the conclusion. 7      The Employment Standards Act does not change the result. Section 42(4) does nothing more than direct accrual of seniority during pregnancy or parental leave. The time the employee is away is therefore included in measuring the time span of the ongoing employment relationship. That protects the employee's claims to whatever benefits the agreement ties to seniority. Examples in this agreement, mentioned earlier, are claims to promotion, resistance to layoff and right to recall. But section 42(4) does not affect a benefit such as vacation entitlement under section 20.02, tied solely to attendance and work at the work place (subject to stated exceptions), It follows that sections 3 and 44 of the Act have nothing to do with this grievance: there is no contracting-out of section 42(4) as an employment standard nor imposition of a penalty. 8      For an elaborate analysis of the Act's provisions relevant to the union's argument and coming to the same conclusion as I do, see the unreported reasons of G. C. Parker, Employment Standards Officer, in Re Regional Municipality of Durham and CUPE, dated in April 1993 and filed before me by the Association. A less elaborate but equally convincing analysis coming to this conclusion is set out in the reasons of Shari Novick, referee under the Act in Re Corporation of the City of Etobicoke and CUPE, dated in September 1994, and also filed by the Association. The board in Canadian Red Cross seems to have read section 42(4) differently. Needless to say, I disagree with that reading. 9      As for the impact of the Human Rights Code, I see nothing in the collective agreement or the Association's conduct relevant to this grievance violating section 4 or 11. Vacation credits are tied to attendance and work. No one — male or female, pregnant or not, parent or not — who is on a leave under either section 18.01 or 19.01 is at the work place working. The result is that none of them is entitled to any credits for vacation under section 20.02. Because all are treated alike, there is no violation of section 4, and there is no adverse effect discrimination violating section 11. 10      The grievance is dismissed.   End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.