HomeMy WebLinkAbout2002-1197.AMAPCEO Union Grievance.03-02-24 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 1197/02
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
ASSOcIatIOn of Management, AdmInIstratIve and
ProfessIOnal Crown Employees of Ontano
(Umon Gnevance) Grievor
- and -
The Crown In RIght of Ontano
(Management Board Secretanat) Employer
BEFORE Richard Brown Vice-Chair
FOR THE UNION Steven Barrett
Sack Goldblatt Mitchell
BarrIsters and SOlICItorS
FOR THE EMPLOYER DavId Strang
Counsel
Management Board Secretanat
HEARING February 13 & 17 2003
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DECISION
ThIS umon gnevance concerns the entItlement of a surplus employee to retIre, wIth an
actuanally unreduced penSIOn, when he or she reaches "Factor 80"-1 e the sum of hIS
or her age and years of pensIOnable servIce IS 80 The contested scenano mvolves a
person who receIves notIce of layoff by March 31, 2004 but who does not reach Factor
80 untIl some later date The Issue IS whether such an employee IS entItled to "bndge"
to Factor 80 by usmg unpaid leave
I
PensIOn entItlements for members of the AMAPCEO bargammg umt anse from eIther
the PublIc ServIce PensIOn Plan or the collectIve agreement In the event of a conflIct
between these two documents, the collectIve agreement prevails The umon relIes upon
the prOVISIOns dealmg WIth Surplus Factor 80 and penSIOn bndgmg whIch appear at
pages 60 to 64 of the current collectIve agreement expInng on March 31, 2004
TRANSITION LETTER
The Government IS aware that ItS restnlctunng mItIatIves could have a sIgmficant
effect on employees, some of whom have served for a lengthy penod.
Accordmgly, the Employer shall, untIl March 31, 2004, make the followmg
entItlements aVailable to elIgible employees who are declared surplus on or
before March 31, 2004
1 Surplus Factor 80
An employee who receIves a NotIce of Lay Off on or before March 31, 2004,
may apply to retIre on unreduced penSIOn provIded all of the followmg
condItIons are met
(a) The employee's age plus penSIOn credIt totals 80 years on or before
employment ceases, and,
(b) The employee's age plus penSIOn credIt totals at least 80 years on or before
March 31, 2004, and,
3
(c) The employee ceases employment upon the date of layoff specIfied In Ius
or her NotIce of Lay Off All or part of the employee's TermInatIOn
Payments under ArtIcle 38 may be converted to and receIved as paid leave,
In order to extend serVIce beyond the employee's layoff date In such case
the employee must cease employment at the end of the paid leave penod.
and,
(d) The employee must make Ius or her wntten electIOn to retIre under tlus
paragraph wIthIn five (5) days of reCeIVIng hIS or her NotIce of Lay Off
and the Employer must receIve that electIOn wItlun the same five (5) days,
and,
(e) The employee must forfeIt all other surplus entItlement IncludIng but not
lImIted to paY-In-lIeu of notIce, bumpIng, redeployment, dIrect
assIgnment, recall and enhanced severance pay
2 Enhanced Severance
In addItIon to the severance entItlements set out In ArtIcle 27 15 of the
Agreement, an addItIonal one week of salary for every completed year of
contInUOUS serVIce, WIth no maxImum, shall be paid as enhanced severance to all
employees declared surplus on or before March 31, 2004
If an employee who IS paid enhanced severance pursuant to tlus sectIOn
subsequently, as a recall employee, accepts a dIrect assIgnment In accordance
wIth ArtIcle 27 11, the employee shall be reqUIred to repay an amount equal to
the total number of weeks of enhanced severance paid less the number of weeks
spent on recall pnor to return to work (e g an employee who receIves twenty
(20) weeks enhanced severance and IS recalled fifteen (15) weeks after theIr date
of layoff shall repay the eqUIvalent of five (5) weeks of enhanced severance)
3 PensIOn bridging optIOn
A surplus employee IS entItled to take a penSIOn bndgIng optIOn as a leave of
absence wIthout pay but wIth the contInued accrual of penSIOn credIts, If the sum
of
(a) the SIX month notIce penod,
(b) the number of weeks of paid leave of absence that the employee's
legIslated severance can be converted Into under the current prOVISIOns of
the PublIc ServIce Act RegulatIOn 977 Sec 87, plus
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(c) a maXImum of two (2) years leave of absence wIthout pay, but wIth
contInued accrual of penSIOn credIts
would bnng the employee to the next earlIest date on whIch he or she could
exerCIse an actuanally unreduced penSIOn optIOn under the PublIc ServIce
PensIOn Plan Attachment "1" to thIS letter provIdes details on the penSIOn
bndgIng optIOn
Surplus employees who choose tlus optIOn shall Waive all nghts to bumpIng,
dIrect assIgnment, paY-In-lIeu and recall
The Employer agrees to make any necessary changes to the penSIOn plan and/or
the Puhlzc Servlce Act, RegulatlOn 977 In as expedItIOus a manner as IS possIble
ATTACHMENT # 1-- Details on PensIOn BrIdgmg OptIOn
1 For any specIfic IndIVIdual, the maXImum amount of leave that can be taken
for the penSIOn bndgIng optIOn shall be calculated as follows
(a) determIne the total amount of tIme from the date on whIch the employee
receIves the surplus notIce that IS needed for the IndIVIdual to reach the
next earlIest of hIS or her actuanally unreduced penSIOn optIOns and, from
that amount, subtract
1) the employee's sIx-month notIce penod, and
11) the number of weeks of paid leave of absence that the employee's
legIslated severance can be converted Into under the eXIstIng
proVIsIOns of the Puhlzc Servlce Act RegulatlOn 977 Sec 87
(b) the remaInder, to the extent that It IS no more than two (2) years, shall be
aVailable as a leave of absence wIthout pay but wIth contInued accrual of
penSIOn credIts Dunng the leave wIthout pay, employees may choose to
purchase all benefit coverage wIth the exceptIOn of STSP and L TIP
2 The leaves of absence shall commence before the conclusIOn of the
employee's sIx-month notIce penod and shall be taken as follows
(a) the unpaid leave of absence, the maXImum length of whIch IS determIned
In accordance wIth 1 (b) above, shall be taken first Dunng tlus leave of
absence, In lIeu of the employee's penSIOn contributIOns beIng made
dIrectly by the employee, the employee's nght to enhanced severance
under the TransItIOn Letter shall be reduced by an eqUIvalent amount,
5
whIch the Employer shall pay Into the penSIOn plan and the Employer
contributIOns shall also be paid Into the penSIOn plan,
(b) the leave of absence wIth pay equal to the employee's number of weeks of
legIslated severance shall be taken after the leave wIthout pay In paragraph
2(a) Dunng tlus leave of absence the employee's penSIOn contnbutIOns
shall be deducted from the employee's bIweekly payments,
(c) at the conclusIOn of the leave of absence wIth pay the employee shall
return to complete whatever portIOn of the sIx-month notIce penod
remaInS At the end of tlus penod the employee
1) shall retIre,
11) shall receIve the enhanced severance, reduced by an amount
eqUIvalent to hIS or her penSIOn contributIOns for the unpaid leave of
absence, and
111) shall be entItled to exerCIse Ius or her nght to an unreduced penSIOn
Letter of Understandmg re Surplus Factor 80
February 12, 2002
Mr Bob Stambula, VIce PresIdent
Chair, AMAPCEO NegotIatIng Team
If the employer decIdes not to extend the Surplus Factor 80 program past the
scheduled March 31, 2004 tennInatIOn date, the employer agrees to the
folloWIng
to amend the PublIc ServIce PensIOn Plan text to ensure that an
AMAPCEO member who receIves a NotIce Of Lay Offpnor to March 31,
2004, and whose age plus penSIOn credIt totals at least 80 years on or
before employment ceases wIll be elIgible to retIre under the program
The employer agrees to forgo the reqUIrement that an employee would have to
meet the condItIon that the employee's age plus penSIOn credIt totals at least 80
years on or before March 31, 2004 However, all other terms and condItIons of
the Surplus Factor 80 program wIll contInue to apply
The employer also confirms that the applIcatIOn and Intent of the PenSIOn
BndgIng OptIOn remaInS consIstent WIth prevIOus Intent and applIcatIOn
6
Yours truly,
Deborah-Anne Long
Lead NegotIator Corporate Labour RelatIOns / NegotIatIOns Secretanat
II
Like the current collectIve agreement, the prevIOUS one contaIned a transItIOn letter and
an attachment, there was no counterpart to the letter of understandIng In the earlIer
contract The openIng paragraph of the prevIOUS transItIOn letter stated the entItlements
lIsted thereIn were aVailable "untIl March 31, 2001", the end date of that agreement
The attachment was carrIed over from one collectIve agreement to the next wIthout
alteratIOn The sectIOns of the transItIOn letter entItled "Enhance Severance" and
"PenSIOn bndgIng optIOn" also were carrIed over In unaltered form, but the sectIOn of
the current letter entItled "Surplus Factor 80" IS new
The transItIOn letter In the prevIOUS agreement had a dIfferent sectIOn dealIng
wIth Factor 80 It was negotIated agaInst the backdrop of a penSIOn plan then allowIng
employees to retIre, wIth an actuanally unreduced penSIOn, upon reaclung Factor 80,
regardless of whether they had receIved notIce of layoff, an arrangement known as
Voluntary Factor 80 Under the plan's ongInal verSIOn of thIS optIOn, the nght to retIre
on full penSIOn was lost If not exercIsed wItlun a three-month "wIndow" The transItIOn
letter In the prevIOUS collectIve agreement dealt exclusIvely wIth employees who had
reached Factor 80 before March 20, 1996 and had not elected to retIre when theIr
WIndow was open The letter reopened the electIOn WIndow for Voluntary Factor 80 In
the event such an employee was declared surplus after March 20, 1996
There IS much common ground between the partIes about the use of unpaid leave
as a penSIOn bndge under the current contract and the prevIOUS one PenSIOn bndgIng
applIes to any actuanally unreduced penSIOn optIOn under the PublIc ServIce PenSIOn
Plan The plan allows an employee to retIre on full penSIOn upon reachIng Factor 90
(1 e age and years of servIce total 90) or 60/20 (1 e age 60 wIth 20 years or servIce)
7
Under the collectIve agreement expInng on March 31, 2001, the penSIOn bndgIng
optIOn allowed employees, reCeIVIng notIce of layoff by that date, to use unpaid leave to
reach Voluntary Factor 80, Factor 90 or 60/20, even If these pOInts were reached after
March 31, 2001 Unpaid leave could not be used to reach Factor 80 after March 31,
2002, because that IS when Voluntary Factor 80 ended
Under the current contract endIng March 31, 2004, the penSIOn bndgIng optIOn
stIll allows employees reCeIVIng notIce of layoff by that date to use unpaid leave to
reach Factor 90 or 60/20, even If these pOInts are not reached untIl after March 31,
2004 The penSIOn bndgIng optIOn also allows employees, reCeIVIng notIce of layoff by
March 31, 2004, to use unpaid leave to reach Surplus Factor 80 by that date The
dIspute IS as to whether unpaid leave may be used to reach Surplus Factor 80 after
March 31, 2004
III
If the transItIOn letter stood alone, surplus employees would not be entItled to bndge to
Factor 80 after March 31, 2004 Under paragraph l(b) of that letter, one condItIon for
entItlement to Surplus Factor 80 IS that "age plus penSIOn credIts totals 80 years on or
before March 31, 2004 " The letter of understandIng explIcItly waives tlus condItIon
ThIS much IS agreed.
The partIes dIsagree as to the effect of thIS Waiver The employer contends It
merely allows a surplus employee to use the notIce penod and paid leave to extend
employment so as to reach Factor 80 after March 31, 2004 AccordIng to AMAPCEO,
the Waiver also allows a surplus employee to use unpaid leave to bndge to Factor 80
after tlus date
The penSIOn bndgIng sectIOn of the transItIOn letter makes no mentIOn of March
31, 2004 as an end pOInt The openIng paragraph of the letter does state the employer
wIll make "available" the entItlements lIsted "untIl" tlus date Counsel for AMAPCEO
suggests these words merely reflect the fact that the agreement expIres on the date
8
specIfied. Whatever the meanIng of tlus temporal reference, the employer concedes It
does not deny the contractual penSIOn bndgIng optIOn to employees, reCeIVIng notIce of
layoff by March 31, 2004, who wIsh to bndge to Factor 90 or 60/20 after that date
Surplus employees seekIng to bndge to Factor 80 should be treated In the same way as
those seekIng to bndge to Factor 90 or 60/20, unless sometlung In the collectIve
ageement IndIcates the partIes dId not Intend the penSIOn bndgIng optIOn to apply to
these two groups In the same fashIOn
Counsel for the employer contends penSIOn bndgIng applIes dIfferently to Factor
90 and 60/20 because each of them IS a "permanent feature" of the penSIOn plan, unlike
Surplus Factor 80 In assessIng thIS argument, I begIn by notIng the penSIOn bndgIng
optIOn allows an employee to use unpaid leave to reach "the next earlIest date on whIch
he or she could exerCIse an actuarzally unreduced penSlOn optlOn under the Publzc
Servlce PenSlOn Plan" (emphasIs added) Surplus Factor 80 IS "an actuanally
unreduced penSIOn optIOn" In the plan The plan's verSIOn of tlus optIOn IS found In
sectIOn 41 2 whIch makes Surplus Factor 80 aVailable to an employee tennInated before
Apnl 1, 2004 whose age and penSIOn credIts total 80 on the date of termInatIOn In
short, the plan's current verSIOn of Surplus Factor 80 ends on Apnll, 2004 If the
penSIOn plan IS not amended, It would not be possible to bndge to the plan's verSIOn of
Surplus Factor 80 after thIS date, because thIS pensIOn optIOn would no longer eXIst
The letter of understandIng oblIges the employer to amend the plan to ensure an
employee, reCeIVIng notIce of layoff by March 31, 2004, IS elIgIble to retIre wIth full
penSIOn, so long as hIS or her "age and penSIOn credIts total 80 years on or before
employment ceases" (emphasIs added) When the plan IS amended as reqUIred by the
collectIve agreement, Surplus Factor 80 would contInue to eXIst after March 31, 2004
The fact tlus penSIOn optIOn IS not a pennanent feature of the plan would not prevent
such an employee from bndgIng to It after thIS date
Employer counsel argues the letter of understandIng was Intended to modIfy
Surplus Factor 80 but not penSIOn bndgIng ThIS argument overlooks the logIcal
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connectIOn between these two entItlements bndgIng wIth unpaid leave IS one way to
reach Surplus Factor 80 The letter of understandIng extends the t11neframe for surplus
employees to attaIn Factor 80 and Imposes no explIcIt restnctIOn on the ways by whIch
they may reach It dunng the extensIOn In the absence of any such restnctIOn, the most
reasonable assumptIOn IS that any route by whIch surplus employees may reach Factor
80 before March 31, 2004, IncludIng bndgIng wIth unpaid leave, IS open to those
WIshIng to reach It after that date
Employer counsel also relIes upon the last sentence of the letter of understandIng
statIng "the applIcatIOn and Intent of the PenSIOn BndgIng OptIOn remaInS conslstent
wlth prevlOus zntent and applzcatlOn" (emphasIs added) In my VIew, thIS provIsIOn
does not assIst the employer Under the prevIOUS collectIve agreement, employees were
allowed to use unpaid leave to bndge to Factor 90,60/20 and Voluntary Factor 80, even
If these pOInts were reached after the end date of that agreement ThIS past practIce IS
consIstent WIth allowIng them to use unpaid leave to bndge to Surplus Factor 80 after
the end date of the current collectIve agreement
ThIS analysIs leads me to conclude there IS nothIng In the collectIve agreement to
IndIcate surplus employees seekIng to bndge to Factor 80 should be treated dIfferently
from those seekIng to bndge to Factor 90 or 60/20 AccordIngly, an employee who
receIves notIce of layoff by March 31, 2004 IS entItled to use the penSIOn bndgIng
optIOn to reach Surplus Factor 80 after that date The gnevance IS allowed.
Dated at Toronto thIS 24th day of February 2003
;tZ
l..~~~~
,
Richard Brown
Vice-Chair