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HomeMy WebLinkAbout1996-2105.Valentine.99-03-23 Decision - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE l'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180,RUEDUNDAS OUEST BUREAU600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 2105/96 (96I041, 99B034 99B035), 0202/97 (97U089), 0894/97 (97U089), 2159/95 (960093), 1230/96 (960860 98A584), 1571/96 (960981), 1977/96 (96H105), 2346/96 (97C025), 2672/96 (97C090), 0170/97 (97C238), 0225/97 (97C276), 0837/97(970928), 1285/97(97B875), 1393/97 (97C478), 1519/97 (97G042), 0190/98 (98B197), 0890/97 (970947), 0891/97 (970848) IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIO PublIc ServIce Employees Umon (Valentme, DaSIlva, et allUmon Gnevance) Grievor - and - ~ The Crown m RIght of OntarIO (Mmlstry of Fmance, Mimstry of Labour, MmIstry ofCommumty and SOCIal ServIces) Employer BEFORE DJ D LeIghton V Ice-Chair FOR THE Ed Holmes GRIEVOR Counsel, Ryder Wnght Blair & Doyle BarrIsters & SolICItors FOR THE DaVId Strang EMPLOYER Counsel, Legal SerVIces Branch Management Board Secretanat HEARING September 24 and 25, 1998 (Rev 13 Apr 99) -- ThIS decIsIOn concerns forty-five (45) mdIvIdual and policy gnevances WhICh were consolIdated for the purposes of thIS heanng The parties agreed that the Issue for the Board to address was the mterpretatIOn of Article 53 of the collective agreement, 53 1 An employee whose semonty commences from a date pnor to January 1, 1970, and who ceases to be an employee IS entitled to be p8.1d an amount m respect of hIS or her accumulated attendance credIts for contmuous servIce up to and mcludmg March 31, 1978, in an amount computed by multIplymg half of the number of days of hIS or her accumulated attendance credIts at the date he or she ceases to be an employee by his or her annual salary at the date he or she ceases to be an employee and dIvIdmg the product by two hundred and SlXty- one (261) For the penod from April 1, 1978, the benefits described under Article 53 4 shall apply 532 NotwithstandIng Article 53 1, an employee whose semority commences from a date on or after October 1, 1965, and before January 1, 1970, who ceases to be an employee because of, (a) death, (b) retirement pursuant to, (1) sectIOn 17 of the PublIc ServIce Act (P S.A.), or (11) Articles 8 4, 8 6, 9, 10 1, 10,2, 103 or 17 of the OPSEU PenSIOn Plan and who IS found by the OPSEU PenSIOn Trust to be unable to perform hIS or her dutIes by reason of mental or phYSICal mcapacity and whose servIce IS terminated in CIrcumstances under WhICh he or she IS not entItled to a dIsability pension, or (c) release from employment under section 22(4) of the P S,A" IS entItled to receive, for contInuous servIce up to and includmg March 31, 1978 (d) severance pay equal to one-half (%) week of salary for each year of contInuous servIce before January 1, 1970, and one (1) week of salary for each year of contInuous servIce from and mcludmg January 1, 1970, or 2 ~-- (e) the am.ount m respect of hIS or her accumulated attendance credIts computed m accordance With Article 53 1, whIchever IS the greater, but he or she IS not entitled to receIve both of these benefits For the penod from April 1, 1978, the benefits described under Article 53 4 shall apply 533 An employee whose senIonty commences from a date on or after January 1, 1970, IS entitled to severance pay for each year of contmuous servIce up to and mcludmg March 31, 1978, (a) where the employee has completed one (1) year of continuous servIce and ceases to be an employee because of, (1) death, (n) retirement pursuant to, 1 section 17 of the P S ,A., or 2 Articles 8 4,86,9,10 1,102,103 or 17 of the OPSEU PensIOn Plan and who IS found by the OPSEU PenSIOn Trust to be unable to perform his or her duties by reason of mental or phYSICal mcapacIty and whose servIce is terminated m CIrcumstances under whIch he or she IS not entitled to a dIsabilIty pensIOn, or (ni) release from employment under sectIOn 22(4) of the PS.A., m the am.ount equal to one (1) week of salary for each year of contmuous servIce, or (b) where the employee has completed five (5) years of contmuous servIce and ceases to be an employee for any reason other than, (1) dIsmIssal for cause under section 22 of the P S.A" or (iI) abandonment of pOSItion under sectIOn 20 of the PS.A., man am.ount equal to one (1) week of salary for each year of 3 contInuous servIce For the penod from April 1, 1978, the benefits described under Article 53 4 shall apply 534 An employee, (a) who has completed a mlllImum of one (1) year of contllluous servIce and ceases to be an employee because of, (1) death, (il) retIrement pursuant to, 1 sectIOn 17 of the P S.A" or 2 ArtIcles 8 4,86,9,101,102,103 or 17 of the OPSEU PensIOn Plan and who IS found by the OPSEU PenSIOn Trust to be unable to perform hIS or her dutIes by reason of mental or physIcallllcapaClty and whose servIce IS termmated in CIrcumstances under which he or she is not entitled to a disability pensIOn, or (iu) release from employment under sectIon 22(4) of the PS,A., (IV) reSIgnatIon dunng the surplus notIce period, or (b) who has completed a mlllimum of five (5) years of contmuous servIce and ceases to be an employee for any reason other than, (1) dIsmIssal for cause under sectIon 22 of the P S.A" or (u) abandonment of positIon under sectIon 20 of the PS,A" IS entItled to severance pay for contInuous servIce from and after April 1, 1978, equal to one (1) week of salary for each year of contllluous service from and after April 1, 1978 (emphasis added) Counsel for the Umon submItted that an admlllistratIve error occurred in the final preparatIOn of ArtIcle 53 of the collectIve agreement and the word "and" (emphasized above) was wrongly mcluded in the language, thus rendenng the prOVISIOn meanlllgless The "and" should have been an "or" Therefor the collectIve 4 agreement should be rectlfied. Counsel for the Employer took the posItion that the collectlve agreement should not be rectified, and that the word "and" had not changed the practice of the Employer m provIdmg benefits under thIS Article Counsel argued that changmg the "and" to "or" would mcrease benefits, and thIS was not the agreement of the Employer Several arguments were advanced by the Union referrmg to particular groups of employees, mcludmg transferees under AppendIX 9 and MmIstry of Fmance employees who Jomed the Ontano PublIc ServIce (OPS) on January 1,1970, and employees hIred between 1965 and before 1970, m addItion to the argument that Article 53 should be rectified. However, the parties agreed that not all of the mdIvIdual grIevors came WIthm the groups identified above Both parties agreed that I am only to deCIde the mterpretatIon of Article 53, gIven the arguments, and not how It applIes to the grIevors specIfically EVIDENCE OF THE UNION Mr John Joseph O'Bnen, who was chair of the central bargammg Team for the Umon dunng the negotiations for the collective agreement, testified to hIS knowledge of the negotIatlon of Article 53 The old collective agreement provided as follows. 532 NotWIthstandmg SectIOn 53 1, an employee whose semonty commences from a date on or after October 1, 1965 and before January 1, 1970, who ceases to be an employee because of, (a) death, (b) retirement pursuant to, (i) Section 17 of the PublIc ServIce Act or (ii) SectIOn 12 or 18 of the PublIc Service Superannuation Act; or (c) release from employment under subsection 4 of section 22 of the PublIc ServIce Act, IS entitled to receive, for continuous service up to and mcludIng March 31, 1978 5 (d) severance pay equal to one-half (%) week of salary for each year of continuous servIce before January 1, 1970 and one (1) week of salary for each year of contmuous servIce from and mcludmg January 1, 1970, or (e) the amount In respect of hIS accumulated attendance credIts computed in accordance With sectIOn 53 1, whIchever IS the greater, but he IS not entItled to receIve both of these benefits For the penod from April 1, 1978, the benefits descnbed under section 53 4 shall apply Changes to the OPSEU pensIOn plan were made dunng the term of the 1994- 1996 collectIve agreement. The PublIc ServIce SuperannuatIon Act was amended so that It no longer applIed to members of the bargaimng umt, and in ItS stead pensIOn entItlement was covered by the OPSEU penSIOn plan. Mr O'Bnen testIfied that the Umon had two goals In negotIatIng ArtIcle 53 They Wished to add references to the OPSEU penSIOn plan, and include the substance of the provIsIOns referenced In the old collectIve agreement to the PublIc ServIce SuperannuatIon Act, ThIS language was proposed by the umon on the recommendatIOn of theIr benefits and pension experts In December 1995, the Union proposed the follOWing language be Included in the new collectIve agreement, Union Proposal, December 20, 1995 Delete any references In ArtIcles 53 and 81 of the collectIve agreement to "section 12 or 18 of the Public Service SuperannuatIon Act" and replace With "ArtIcles 8 4,86,9, 10 1, 102, 103 or 17 of the OPSEU pension plan text" and the following: " IS found by the OPSEU penSIOn trust to be unable to perform hIS or her dutIes by reason of mental or phYSICal incapacity and whose servIce is terminated in CIrcumstances under WhICh he or she is not entItled to a d1.sability allowance or annuIty" It was Mr O'Bnen's eVIdence that the language was not accepted by the Employer until late March of 1996 It was hIS eVIdence that the words "and who" found In the current collective agreement were not In the proposal and that, In fact, the "and" should be an "or" Dunng edltlng someone indIcated to hIm the words "the follOWing" had been deleted, but the "and" remamed, Section 18 of the Public ServIce 6 SuperannuatIOn Act had provIded Section 18 Where a contributor who, (a) has attained the age of sIXty-five years retires and IS not entItled to a superannuatIOn allowance or annuIty; or (b) is found by the Board to be unable to perform hIS or her duties by reason of mental or physical incapacity and whose servIce IS terminated m CIrcumstances under whIch he or she IS not entItled to a dIsabilIty allowance or annuIty; or (c) has contributed to the Fund m respect of a period of less than ten years, dIed leavmg a Widow or Widower, or a child or children under the age of eighteen years, tWice the amount of hIS or her contributIOns under sectIOn 7, With mterest thereon, together With all other moneys paid mto the fund that entItles hIm or her to credIt m the Fund, With mterest thereon, shall be prod to hIm or her m monthly mstallments or otherwIse as he or she dIrects or to hIS widow or her Widower or child or children, as the case may be Mr O'Bnen noted that smce the PublIc ServIce SuperannuatIOn Act provIded altemate condItions for the benefit, thIS IS what should have been mcluded in the collective agreement. Mr O'Bnen testIfied further that dunng the edItmg of the collectIve agreement the Umon pomted out ItS concem about the wordmg of ArtIcle 53 to the Employer, noting that there was never any mtentIon of the Umon to mclude the word "and" He noted for the Board that the first time the word "and" appeared in ItS present form was on March 29, 1996 It was hIS VIew that as the collectIve agreement reads now an employee that retires per Factor 80, must also be found to be dIsabled to get the benefit under ArtIcle 53 The purpose of the Union's proposal was to capture the provIsIOns of the PublIc ServIce Superannuation Act, In thIS negotIatIon the Umon's goal was to maximize benefits for members who, because of massive downsIzing in the govemment, would be losing theIr employment. On cross-exammatIon, Mr O'Bnen acknowledged that at the time of the negotiation of the collectIve agreement, the PublIc Service Superannuation Act no longer applied to OPSEU members He acknowledged that not everythmg in the PublIc ServIce SuperannuatIon Act had been mcluded m the OPSEU pensIOn plan, 7 and that the purpose of addmg language to the new collective agreement, whIch was essentially the same as the language included m the PublIc ServIce Superannuation Act, was to mclude a new benefit, When questioned by Employer Counsel as to whether anyone m the negotiatmg team or the Umon told the Employer that the intention of the change to Article 53 was to Improve benefits, Mr OBnen answered that he dIdn't remember exactly what had been smd He thought that the team had smd that they dIdn't want to lose any benefits, but he dId not remember If anyone on the team told the Employer the proposed language was a greater or better benefit. When Employer Counsel put it to Mr OBnen that one of the Employer's negotiators, during dISCUSSIons about Article 53, asked specifically what the language was for, and was told by the Umon that It was "housekeepmg," Mr OBnen said that he "can't answer" EVIDENCE OF THE EMPLOYER Mr Kevm James Wilson, now DIrector of Corporate Labour Relations Negotiations Secretariat, was the ChIef negotiator for the Employer at the central bargmmng table Mr Wilson testified that he attended the bargmnIng seSSIOns at the central bargmning table with Mr D Gray He testified that the Umon tabled ItS pOSItion Wlth regard to Art1cle 53 on December 20, 1995, Wlth a large package of proposed changes to the collective agreement. When the Employer team mquired mto the purpose of the proposed changes to Article 53, Mr Beckerman, one of the Umon negotiators, smd that it was "housekeepmg" m nature, and that the Umon was sImply looking to amend the collective agreement to reflect changes to the OPSEU pensIOn plan. Mr Wilson testified further that the Employer had only agreed to language that dId not change the benefit as It stood pnor to bargmmng If It was merely housekeepmg in nature, then it would not change existing benefits for anyone I twas hIS understandmg through the negotiations that the Umon did not want to add benefits, but wanted to ensure that It dId not lose benefits Mr Wilson smd that the Employer has not changed how It admImsters Art1cle 53 He also noted that If the Umon does propose a change to a benefit, It IS always costed. ThIS was not done for Art1cle 53 8 On cross-exammatIOn, Mr Wilson stated that the Umon's proposal was referred to Mr Hill, an expert m pensIOns, for hIS reVIew Accordmg to Mr Wilson, It was Mr Hill's VIew that no additional benefit was bemg added by thIS language Mr Wilson agreed that Article 8 8 of the penSIOn plan IS not exactly the same as the language proposed by the Umon to mcorporate the language of sectIOn 18 of the PublIc ServIce SuperannuatIon Act. He agreed further that sectIon 18 mcludes an "or" and not an "and", and that the old prOVIsIOn of the collectIve agreement dId not refer to eIther Factor 80 or 90 He stated further that sectIon 12 of the PublIc ServIce SuperannuatIon Act IS the same prOVISIOn as now found m ArtIcle 9 of the penSIOn plan It was the mtent of the Employer to mamtam the eXIstmg benefit and not to Improve It. Mr Wilson acknowledged that the pnvatIzatIOn of a govemment servIce was a matenal change m its operatIon Mr Wilson acknowledged that employees m an operatIon WhICh has been pnvatIzed have no chOIce to remam m the OPS and the pnvatIzatIon IS governed by AppendIX 9 of the collective agreement. THE UNION'S SUBMISSION Rectification Counsel for the Umon submitted that ArtIcle 53 must be rectIfied because It contains an inadvertent admmIstrative error WhICh makes the Article meanmgless Counsel submItted that the Umon's proposal m December of 1995 to change ArtIcle ! 53 had two parts. The first part was mtended to delete any references to the PublIc ServIce SuperannuatIon Act and mclude the relevant ArtIcles of the penSIOn plan mstead, The second part was to mclude the prOVISIOns of sectIon 18(b) of the PublIc ServIce Superannuation Act in the collective agreement. Counsel submitted that the Umon held fast to that proposal until March 29, 1996 when the Employer accepted the proposal However, when the proposal was put mto the final document, the words "and who" were added when the word should have been "or" The language of sectIon 18(b) of the PublIc ServIce SuperannuatIon Act made three prOVIsIons that were m the altematIve, that is they were linked With "or" and not "and" 9 Counsel argued that the Article as It reads In the collective agreement IS meaningless For example, under the current Article you have to be dead and not entitled to a pensIOn. Or you have to be elIgIble for Factor 80 and incapacItated physically or mentally This Interpretation IS not what the parties Intended or agreed upon. Counsel argued that the pensIOn expert for the Employer had revIewed the proposal pnor to the Employer's agreement to It, and argued that the expert must have recognIzed the addItional provIsIOn Counsel argued that thIS ArtIcle reqUIres rectification because there was an admInIstrative error He argued that I should apply the doctnne of rectification because It would be eqUItable and provIde relIef agaInst unjust ennchment. Counsel cIted Re Alcan Canada Products Ltd. and Metal Foil Workers UnIon, Local 1663 (1982), 5 L.A,C (3d) (Arthurs), Re SemInole Management and Engineenng Co. and CanadIan AutomobIle Workers, Local 195 (1989),4 L.A.C (4th) 380 (Watters) m support of hIS argument. Ministry of Finance Grievors Counsel argued In the alternative should I find that rectification IS not warranted that employees who were mUnICIpal employees initially and then appoInted to the OPS by OIC on January 1, 1970, should have theIr contInuous servIce date deSIgnated as January 1, 1970 and not the date m WhICh they may have started With the mUnIcIpality In antiCIpating an argument that thIS claim IS not timely, Counsel argued that the date should always have been January 1, 1970 and that SInce the Issue only arose when these members retired, that was the first notice they had of the issue CalculatIng the continuous servIce date from January 1, 1970 affects the termInatIOn benefits under Article 53 ArtIcle 53 3 provIdes that Employees with continuous servIce dates between January 1, 1970 and March 3, 1978 are entitled, With some condItions, to one year of credit for each year of servIce at the termInation of theIr employment, Counsel CIted OPSEU (BIckerstaff) and the Mmistry of Govemment Services (1979) 74/79 (SWinton) to support his argument. 10 The Transferees Counsel for the UnIon also argued that AppendIX 9 transferees to pnvate employers who were deemed to resIgn if they dIdn't take ajob WIth the new employer were released pursuant to the PublIc ServIce Act section 22(4) He argued that the nght to resIgn belongs to each employee and that It must be voluntary A resIgnation can't be a real resIgnation If there IS duress In the case of employees transferred pursuant to privatIzatIOn, they are mformed by the Employer of two choIces they may take the Job WIth the new pnvate company and resIgn from the OPS, or they may declme to take the Job WIth the new pnvate employer and resIgn from the OPS Counsel argued that Mr Wilson's eVIdence was helpful to the Union's argument because he agreed that pnvatIzatIon was a matenal change to operatIOn He noted that the UnIon was not takmg Issue WIth AppendIX 9, whIch deals WIth "reasonable efforts as negotIated between the parties" Counsel cIted OPSEU (MawanI) and the MInIStry of Government ServIces 1772/87 (Venty) for the propOSItIOn that resIgnatIons must be voluntary He noted in conclUSIOn that If there is a finding that these employees have been released, they get the "best of optIon" under ArtIcle 53 2.Ii(c) They get the best of accumulated credIts dependmg on the penod of theIr employment. Discrimination Argument Counsel also argued that people hIred between 1965 and 1970 WIthOUt a disability could accumulate sick credIts Half of the accumulated credIts would be paid as a benefit on terminatIon of employment, DIsabled employees would have to use sIck credIts m order to be away from work If they were disabled, and therefore would not get prod the benefit of accumulated cremts on endmg employment. Counsel argued that there was a direct connectIon between the collectIve agreement and accumulated credIts and termmatIOn pay at the tIme of retIrement, Counsel cIted OPSEU (Kimmel/Leaf) and the MInIStry of Government ServIces (1991) 21 L,A.C (4~ 129 (Kaplan) to support hIS argument that the payment of terminatIon benefit at retirement to people hIred between 1965 and 1970 resulted in adverse dIscnmination to those employees who were disabled, 11 THE EMPLOYER'S SUBMISSION Rectification Counsel argued that there were two lmes of authonty on whether arbItrators can rectify the collectIve agreement, The Supreme Court case of Re Port Arthur ShIP Buildmg v, Arthurs et al, (1968) 70 D L R. (2d) 693 and the lme of cases followmg It have held that arbItrators have no JunsdictIon to amend the collectIve agreement. The Labour Relations Act sectIon 45(8) had given the power to arbItrators to go beyond the collectIve agreement, but thIS provIsion has been repealed. Even when the doctrme of rectIfication IS applIed, it is only m lImited CIrcumstances Counsel argued where a second document needs to be mterpreted as It relates to an agreed upon first draft, then rectIficatIon IS permItted, In Re CamI Automotive Inc. and Canadian Auto Workers, Local 88 (1994) 45 L,A.C (4~ 71 (Brandt) rectIfication was only ordered where both the employer and the umon agreed that there was a typographIcal error Counsel also relIed on Semmole, supra, to argue that the partIes must prove that they mtended the partIcular language and here the Employer dId not. There was no evidence that the Employer mtended to expand the benefit as the Umon now argues In Counsel's submIssion, Mr O'Bnen's eVIdence was that the Umon intended to preserve existIng benefits. Thus m Counsel's submISSIOn that there was a mIsunderstandmg between the partIes, rather than any clear mtentIOn to Improve the benefit under ArtIcle 53 Counsel noted that the benefit here IS modest. The maximum benefit under Article 53 IS 26 weeks of pay and everyone who is a long-term employee is gettmg 26 weeks of pay Counsel acknowledged that ArtIcle 53 was certamly dIfficult, but there was no evidence that members were not gettmg what they had bargained for He pomted out that It was undIsputed eVIdence that Mr Gray had been told by the Umon negotIatIon team that the proposed change to Article 53 was for "housekeepmg" Counsel noted that the Employer has contmued to provide benefits as were m place m December 1995 12 -. Ministry of Finance Grievors Counsel argued that the Union's claIm that mUnICIpal workers who transferred to the OPS on January 1, 1970 should have a contmuous servIce from that date rather than the date they began with the mUnICIpalIty IS not 1:1mely Further, Counsel argued that the UnIon IS estopped from relYIng on the stnct language of the collec1:1ve agreement, MUnICIpal employees who became publIc servants on January 1, 1970, have been credIted WIth an earlIer senIonty date and have had the benefit of the earlIer date smce they began with the OPS TheIr vaca1:1on en1:1tlement and other benefits have been calculated based on the earlIer date They can not now claIm a later con1:1nuous service date of January 1, 1970 In order to Increase theIr benefits under Article 53 Counsel asked me to reVIew the language of the order-In-council, which governed the transfer of these employees from theIr mUnICIpal employer to the OPS, theIr rights and en1:1t1ements Attendance credIts were specIfically provided for In the order-In-COuncIl. (2) Attendance CredIts The accumulatIOn of attendance credIts while In the servIce of the mUnICIpal assessment offies or office of the Distnct Assessor will be recognized and recorded to the credit of the employee and may be applIed to sick leave, other leave and separatIOn gratUIty as provIded under The PublIc ServIce Act. Con1:1nuous servIce WIth the prevIOUS employer WIll be Included In determining en1:1t1ement to separation gratUIty (OC - 2618/69, P 3) The Transferees Counsel for the Employer argued that the transferees pursuant to AppendIX 9 who had reSIgned when theIr government servIce was pnvatized had not been released under sectIOn 22(4) of the PublIc Semce Act and that there was no eVIdence to Support a finding that there had been a release under the Act. Counsel argued that the UnIon would have to conVInce the Board that there was no resIgna1:1on and, therefore, AppendIX 9 dId not apply AppendIX 9, WhICh IS part of the collec1:1ve agreement, provIdes at paragraph l(a) when an employee is transferred to a new employer, he or she will be deemed to have reSIgned, These proviSIOns were nego1:1ated and agreed to by the Employer and the UnIon Counsel argued that thIS Issue was deCIded by the Board In OPSEU (UnIon Gnevance) and the MInIStry of 13 Consumer and CommercIal Relations (1997) 201/97 (FIsher) The collective agreement provides for deemed resIgnations and the Umon can and has agreed to such language m the collective agreement. Counsel argued that I should not vary thIS decIsIOn unless I thmk that it is patently unreasonable Discrimination Argument Counsel argued that sIck credIts were deSIgned for dIsabled or sIck employees and, therefore, cannot be dIscnmmatory for people hIred between 1965 and 1970 All of these employees got approXImately 12 credIted days per year If an mdlvIdual was not dIsabled, and dId not use the credits, he or she was allowed to accumulate half the credIts and, ultimately, be prod the eqUIvalent benefit when they ceased employment, A dIsabled person could use the credIts to top up sIck leave or accumulate the credits and take half of the accumulated benefits on separatIon If a dIsabled emp1oy~e used the full credIt he or she got 100% of the value Counsel noted that severance pay was an earned benefit, Employees earn the same benefit and, between the time of earmng and the time of retirement, can cash It m. Counsel argued that this benefit was deSIgned to aSSIst SIck or dIsabled employees and there was no adverse dlscnmmatIOn m the applIcation of Article 53 DECISION The parties put the extrmsic eVIdence of the bargaining hIStOry of ArtIcle 53 m the 1995-1996 round of negotiations before me by agreement. They have asked for an mterpretation of ArtIcle 53 based on thIS evidence and their arguments. The first Issue to be decIded IS whether the collectIve agreement should be rectIfied. Havmg carefully conSIdered the eVIdence and the submIssIOns of the partIes, I find that I do not have the power to rectIfy the collective agreement m thIS case In CamI Automotive, supra, the Board summanzed the controversy m arbItral Junsprudence on the issue of whether arbItrators have the power m an appropnate case to rectify a collectIve agreement. In Some early cases (Re Newfoundland Lrquor Corp and N.A.P E, (1977),17 L.A,C (2d) 101 (ThIstle), Re Emco Ltd, and U S.W, Loc. 2699 (1977), 14 L.A.C (2d) 361 (Johnston)), arbItrators declmed to rectify m 14 ~ the face of clauses in the collective agreement prohibIting them from "altenng, modIfymg, or amendmg" the collectIve agreement. In Metropolltan Toronto Pollce Assn, v Metropolltan Toronto Board of Com'rs ofPollce (1974) 45 D L.R. (3d) 548, (1975] 1 S C R. 630, 74 C L L.C ~14,223, the OntarIO Court of Appeal [26 D L.R. (3d) 672, (1972] 2 0 R. 793,72 C L L C ~14,125] expressed some reservatIons conceming the power of an arbItrator to rectIfy a collectIve agreement. That case and others were revIewed extensIvely m Re Alcan Canada Products Ltd, and Metal Foil Workers' Unions, Loc. 1663 (1982), 5 L.A,C (3d) 1 (Arthurs), where It was held that, at most, the statements of the courst m the Metro Pollce case were oblter dlctum, Further, It was held that clauses m collectIve agreements preventmg the arbItrator from "altenng" or "modifymg" the collectIve agreement do not have the effect of preventmg the arbItrator from finding the real agreement of the partIes and rectIfymg the ostensIble agreement m the way that will reflect the real agreement. Subsequent to Re Alcan Canada Products Ltd, there have been a number of cases m whIch arbItrators have followed that case and have rectIfied the collectIve agreement where appropnate see Re Ethyl Canada Inc, and E.C W U, Loc, 300 (1987), 26 L.A,C (3d) 201 (Devlm), Re Seminole Management & Engmeenng Co and c.A. W, Loc. 195 (1989),4 L.A.C (4th) 380 (Watters), Re Peterborough CWlC Hospltal and I.UO,E., Loc. 796 (1991), 23 L.A,C (4~ 312 (Jackson) The Board m Cami AutomotIve went on to conclude that the consensus of arbItrators m 1994 was that they had the power to rectIfy collectIve agreements when appropnate In the Board's VIew, this was supported by the amendment to the Labour RelatIons Act which specIfically provIded pursuant to SectIOn 45(8) that arbItrators have the power to "determme the nature of the differences [between the partIes] in order to address their real substance" and "to determme all questIOns of fact or law that arIse " However, thIS prOVISIOn of the Labour Relations Act was repealed in 1995 Thus Employer Counsel IS of the VIew that thIS board has no JunsdICtIon to rectIfy the collectIve agreement. Leavmg aSIde the question of whether thIS Board has any junsdIctIon under any CIrcumstances to order rectificatIon, even under the broad view of rectification (found m CamI AutomotIve or Semmole, supra), It would not be proper m this case The Board m CamI Automotive, havmg found the general JunsdictIon to rectify, went on to state Whether or not rectIficatIon should be ordered IS a matter of whether or not the wntten agreement reflects the "true bargaIn" or "true concensus" of the partIes to that agreement, In that regard eVIdence was led by the company with respect to the actual agreement and mtentIons of the 15 ..---- parties respectJ.ng art, 11 (c) That evidence related both to the bargaIning conduct of the partIes and to the subsequent admmlstratIon of art. 11 (c) The eVIdence before me does not support a findmg that the wrItten agreement eIther reflects or does not reflect the "true bargain." What the eVIdence does show IS that there was no "true bargaIn" The unrefuted eVIdence of the Employer IS that at the bargaInIng table the umon negotIators descnbed the changes to ArtIcle 53 as "housekeepmg," There was no mtention of mcreasmg the benefit under Article 53 But If I was to accept the Dmon's argument that It should be rectified, then the Dmon would have Improved the benefit. The evidence of the Dmon was also that It mtended in ItS negotiatIOns to preserve the status quo The ArtIcle at 53 2(b)(ii) is clearly meanIngless However, the Employer has contmued to admImster the benefit- Ignonng the meanmgless part - as If It had been written to preserve the status of the benefit as of December 1995 Having considered the Dmon's other submIssIOns, I find that the Dmon IS too late to claIm that the Mumclpal employees, who became members of the OPS by order-in-council on January 1, 1970, should have their contmuous servIce date rectIfied to that date These employees have had the benefit of theIr earlIer continuous servIce date - having had theIr start date WIth the municipalIty honoured by the OPS BIckerstaff supra, IS of no assIstance on thIS Issue Finally, the Ole, whIch appointed these employees, was clear in preserving theIr earlier continuous servIce date and m addressmg credIts for sIck tune The argument that transferees to pnvate employers pursuant to the provIsIOns m AppendIX 9 have been released under Section 22(4) of the PublIc ServIce Act has no merit. ThIS Issue was addressed and rejected m OPSEU Umon Grievance, supra. There was nothmg m the Dmon's submIssIOn to persuade me that It was patently unreasonable The final argument to be addressed IS that employees hIred between 1965- 1970, who have used theIr sIck credits when ill or msabled, have been adversely mscnmmated agaInst. I find no ment m thIS argument, The benefit was desIgned for people who were ill. Those that used It got 100% of the benefit. Those that dId not were permItted to take half of the remaImng credits on termination of their employment as a retIrement gratUIty In these circumstances, there IS no mscnmmatIon m the applIcatIon of ArtIcle 53 16 ~-- I shall remain seized should the parties reqUIre further assistance Dated at Toronto thIS 23rd day of March, 1999 ~~ D, - eIg on, ice-Charr 17