Loading...
HomeMy WebLinkAbout1997-1370UNION98_11_18 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 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1ZB FACS/MILE/TELEcOPIE (416) 326-139(5 GSB # 1370/97 OPSEU 97B893 . IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees UnIon (Uruon Gnevance) Grievor - and - The Crown m Right of Ontano (Halton-MissIssauga Ambulance ServIce Ltd.) Employer BEFORE Ken Petryshen Vice-ChaIr FOR THE Nicholas S Coleman UNION Counsel Gowhng Strathy & Henderson Barnsters & SolICItors FOR THE Rick BaldWIn EMPLOYER Counsel Mathews, DInsdale & Clark Bamsters & SOhcIctors HEARING October 30, 1998 DECISION In a policy gnevance dated October 17, 1997, the Union claims that the Employer contravened the Collective Agreement by not paYing Interest on a retroactive wage increase received by paramedics The parties proceeded by means of agreed facts, supplemented with some bnef eVidence called by the Employer There was little dispute about the facts There was no challenge to the Board's Junsdlctlon to hear and determine this gnevance The Employer participates with other ambulance services In a central bargaining process with the UnIon The Union asserts that the Employer failed to comply with Article 5 07 of the Collective Agreement, which covers the years 1996-1998 An Identical prOVISion can also be found In the 1994-1996 collective agreement. Article 5 07 provides as follows Payment of retroactivity IS to be made in accordance with OPS arrangements, In terms of payment on all hours worked or paid, Interest, If any, and time frame for payment. In preceding sections of Article 5, the parties have agreed that an Article 5 8 salary arbitration deCISion or settlement covenng paramediCS In the OPS will apply to employees covered by the Collective Agreement. Article 5 07 of the Collective Agreement specifically addresses retroactivIty and also refers to Interest. Because retroactiVity IS to be made having regard to "OPS arrangements", It is necessary to bnefly review what occurred in the OPS 2 The Union also represents ambulance employees employed by the Crown In 1985, certain OPS ambulance employees gneved their classification structure ThIs initiated a process that culminated In an Article 5 8 award dated December 12, 1996, by a board of arbItration chaired by Mr K. Burkett and a Memorandum . of Settlement between the Union and the Crown dated February 28, 1997 The result of the process was the establishment of three claSSifications, rather than the five that had previously eXisted, and a rate of pay for the new classificatIons The new wage rates were retroactive to May 30, 1991, the time when the CIVil Service Commission approved the pnnclple of new classifications There were approximately 960 employees who benefited from the retroactive payment. The Union and the Crown agreed that only those employees who had gneved would be paId Interest on the retroactIve payment and thus only the 146 OPS employees who had filed claSSification gnevances received Interest. OPS ambulance employees who had complained about the classificatIon structure, but did not grieve, did not receive Interest. The Employer did not pay Interest on the retroactive payments it made to ItS paramedics Of the approxImately 90 full-time and 30 part-time paramedics the UnIon estimates that 75-80% would be affected by ItS claim for Interest. No employee In the bargaining unit had gneved the claSSification structure Of course, employees covered by the Collective Agreement did not have the benefit of the statutory scheme to gneve c1assificactlons available to OPS employees 3 In arguing that bargaining unit employees were entitled to Interest on their retroactive payment, the Union took the position that the only way the settlement between the Union and the Crown could be applied to give effect to the Intention of the parties as reflected In Article 5 07 IS by way of analogy The Union noted that it was Impossible to apply the settlement on ItS own terms because bargaining Unit employees could not effectively grieve their classifications The Union argued that when applYing the settlement by analogy the question arises as to whether the bargaining unit employees should be treated like the OPS grlevors who received Interest or the non-grlevors who did not. The Union maintained that they should be treated like the OPS grlevors since they also had a claim to retroactivity and Interest as a result of the provIsions of the current and prevIous collective agreements Since the bargaining unit employees were In a different position than the OPS non-grlevors and more like the grlevors In that the Union had advanced a claim to Interest on their behalf, the Union argued that thiS grievance claiming interest should succeed The Union requested that I should direct the Employer to pay Interest on the retroactive payment from September 22, 1994, the date when the 1994-1996 Memorandum of Settlement between the parties was executed In taking the pOSition that the parties did not intend that Interest would be paid In these Circumstances, the Employer submitted that the focus of the parties, as eVidenced by Article 5 of the Collective Agreement, was on the Article 4 5 8 award, which ultimately did not provide for interest. In any event, the Employer noted that Article 5 07 clearly Indicates that the payment of Interest, If any, was dependent on "OPS arrangements" The Employer argued that since the arrangement between the Crown and the Union was to pay Interest to only those OPS employees who had grieved, no bargaining unit employee was . entitled to interest because none of them gneved their classification The Employer requested that the gnevance be dismissed The Issue to be determined IS the application of Article 5 07 of the Collective Agreement. On its face, thiS provIsion deals with the payment of retroactivity and provides that such payment IS to be made In accordance With OPS arrangements With respect to certain matters, Including Interest. Of course, when the parties agreed to thiS clause, they did so Without knowing what the OPS arrangements would be The parties did focus on the Article 5 8 award to a degree, however It IS clear from Article 5 of the Collective Agreement that this was not their exclusive focus They recognized that a deCISion or a settlement might resolve the classification Issue The fact that the arbitration board did not address the Issue of Interest is not particularly significant in the context of the parties' agreement that the determining factor would be the OPS arrangements however those arrangements were arrived at. In my View, the fact that only OPS gnevors received Interest IS not as conclusive as the Employer suggests By agreeing that OPS arrangements 5 would be determinative, the parties appear to be concerned with the ultimate OPS resolution rather than the rationale for the result. If all OPS ambulance employees had gneved and for this reason they all received Interest, an argument that the Employer was not obliged to pay Interest because no bargaining unit employee had gneved would not be very compelling The Union's submission that, by analogy, bargaining unit employees were more like the OPS gnevors since they also have a claim for Interest IS an Intngulng argument. However, the real Issue, It seems to me, IS the nature of the claim made on behalf of bargaining unit employees Old the parties Intend that all bargaining unit employees would receive Interest If only approximately 15% of the OPS employees were paid Interest? In my View, It IS unlikely that the parties had such an Intention Rather, It seems more likely that what the parties Intended by Article 5 07 of the Collective Agreement was that bargaining unit employees would receive retroactivity on the same basis as the OPS group ThiS IS the claim advanced by the Union on behalf of bargaining unit employees Whatever date the Crown and the Union selected for the payment of retroactivity IS the time when the Employer would be required to make its retroactivity payment. If the Crown and the Union agreed to a particular arrangement to pay retroactivity having regard to all hours worked or paid, the Employer would be required to honour that arrangement. Similarly, If the Crown and the Union agreed that the OPS employees received retroactivity With interest, the Employer would be required to pay interest. The nature of the "me too" agreement set out I 6 In Article 5 07 IS that whatever the OPS employees obtained as a group the bargaining unit employees would obtain as well In other words, If the Crown and the Union arranged that the OPS employees were to be paid interest, the bargaining Unit employees would be entitled to the same payment. . As the facts disclose, the Crown and the Union did not make an arrangement whereby all OPS employees would receive Interest on their retroactive payments Interest was paid on an exceptional basis In these circumstances, It IS my conclusion that the Collective Agreement does not require the Employer to pay interest on the retroactive payments made to its employees For the foregoing reasons, this grievance IS dismissed --- l't~ Dated at Toronto, this ~ day of November 1998 1 t/ ~~ ( /{---. /~. I (ju,r~ ~>-- Ken Petryshen - Vice-Chair