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HomeMy WebLinkAbout2004-2427.Union Grievance.05-10-19 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# 2004-2427 Umon# G-88-04-PolIcy IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated TransIt Umon - Local 1587 (Umon Gnevance) Union - and - The Crown In RIght of Ontano (Greater Toronto TransIt Authonty - GO TransIt) Employer BEFORE Damel HarrIs Vice-Chair FOR THE UNION Ian P ell ows Green & Chercover BarrIsters and SOlICItorS FOR THE EMPLOYER Glen ChnstIe Hicks Morley HamIlton Stewart Stone LLP BarrIsters and SOlICItorS HEARING July 12, 2005 2 DeCISIon ThIS case anses from the IntroductIOn by the Ontano Government of BIll 106 whIch amended the Ontario Income Tax Act by creatIng a new tax, whIch It has called the Ontano Health PremIUm. The Umon maIntaInS It IS the employer's oblIgatIOn to pay 100% of the Ontano Health PremIUm on behalf of the members of the bargaInIng umt by VIrtue of artIcles B 1 05 and B5 0 whIch read as follows BI05 Benefits Covered - Full-time Employees (a) All full-tIme employees wIll be covered for the folloWIng medIcal and group Insurance benefits at no premIUm cost to the employee (iv) o .H.I.P ARTICLE B5.0 Ontario Health Insurance Plan B5.01 The Employer wIll comply wIth appropnate legIslatIOn In makIng remIttances of Employer Health Tax In order to provIde O.H.I.P coverage to all elIgIble employees and theIr elIgIble dependents Benefits wIll be as provIded by the O.H.I.P Plan. The umon argues that the promIse to provIde coverage "at no premIUm cost" oblIgates the employer to cover the addItIOnal levIes that result from Bill] 06 It said that throughout succeSSIve collectIve agreements the IntentIOn of the partIes has been that employees not shoulder any costs assocIated wIth the publIc health system. It said that the publIc health care system In place when these succeSSIve collectIve agreements were negotIated IS structurally unchanged to the present day and these new levIes to financIally support It fall to be paid by the employer not the employees That IS, the Ontano Health Insurance Plan (hereafter OHIP) and the current Ontano Health PremIUm both target health concerns broadly The health costs addressed by the collectIve agreement relate to a publIcly mandated health care system not just 3 "Insured servIces" That mandate contInued through succeSSIve pIeces of legIslatIOn, IncludIng Bill 106 The employer submItted that It could not have been the IntentIOn of the partIes that the employer has agreed to pay a portIOn of the IndIVIdual tax oblIgatIOns of ItS employees It argued that artIcle B 1 05 IS more In the nature of an oblIgatIOn to pay If the payment IS reqUIred In order to be elIgIble to receIve health care ThIS IS not a case where there IS a bald oblIgatIOn to pay premIUms or shoulder costs The ImplIcatIOn of the umon's claim IS that the partIes Intended schedule B of the collectIve agreement to address more than provIdIng benefits coverages The umon says It IS about fundIng government benefit programmes when the amounts are unknown and uncertaIn. The umon relIed on the folloWIng authontIes Lapointe Fisher Nursing Home v United Food and Commercial Workers Union, Local 175 633 [2004] O.L.AA No 519 (Barrett) The COlporation of the City of Hamilton v Hamilton Professional Firefighters' Association (Goodfellow) (December 17 2004) Toronto Transit Commission v Amalgamated Transit Union, Local1l3 (Health Premium Grievance) [2005] O.L AA No 182 (HarrIs) Ontario Power Generation Inc. v POYf,er Workers' Union (Health Premium Grievance) [2005] O.L.AA No 312 (Swan) London Hydro v POYf,er Workers' Union (Knopf) (June 14 2005) Re Matsqui Police Board, Corporation of the District of Mats qui v Matsqui Policemen's Association, Local 7(1985),22 L AC (3d) 93 (Munroe) Bolands Ltd v UF C W Loc 864 (1996 Christmas Bonus) (1998) 72 L.AC (4th) 140 (ArchIbald) Weyerhaeuser Canada Inc v c.E.P Locs. 105 & 1323 (Retiree Benefits) (1999), 84 L AC (4th) 129 (DevlIn) Re Bell Canada and Communications & Electrical Workers of Canada (1993) 32 L.AC (4th) 176 (PIcher) The Health Services Insurance Act, 1968-1969 S.O 1968-69 c 43 0 Reg. 326/69 (RegulatIOn 4 made under The Health Services Insurance Act, 1968-1969) The Health Insurance Act, 1972 SO 1972, c 91 Health Insurance Act, RS 0 1980 c 197 RRO 1980 Reg. 452 under the Health Insurance Act 0 Reg. 425/87 (RegulatIOn to amend RegulatIOn 452) Employer Health Tax Act, 1989 SO 1989 c 76 BIll 106 An Actto implement Budget measures (SO 2004 c 29) Income Tax Act, RS 0 1990 c 1 2 Health Insurance Act, RS 0 1990 c H.6 R.RO 1990 Reg. 552 under the Health Insurance Act Health Insurance Act, RS 0 1990 c H.6 (consolIdated January 1 2005) RRO 1990 Reg. 552 under the Health Insurance Act (consolIdated January 1 2005) Income Tax Act, RS C 1985 c 1 Canada Health Act, RS 1985 c C-6 The employer relIed upon the folloWIng authontIes Jazz Air Inc and Airline Pilots Association, International (2004) unreported (TeplItsky) Lapointe Fisher Nursing Home and United Food and Commercial Workers Union Local 175 633, (2004) unreported (Barrett); College Compensation and Appointments Council and Ontario Public Service Employees (2004) unreported (ShIme) Goodyear Canada Inc Collingwood Plant and United Steel Workers of America, Local 834L, (2004) unreported (Tims) Walker Exhausts and United Steehtorkers of America, Local 2894 (2004) unreported (Samuels) Ontario Public Services Employees' Union and College Compensation and Appointments Council (Support Staff) (2004) unreported (WhItaker) The COlporation of the City of Hamilton v Hamilton Professional Firefighters' Association, (2004) unreported (Goodfellow) Smurfit-MBI v US WA, IWA Council Local 1- 500 (2005) unreported (Fisher) H.J Heinz Company of Canada Ltd and United Food and Commercial Workers, (2005) unreported (Brent) Woodbine Entertainment Group and Service Employees International Union, Local528 (2005) unreported (Brown) Uniboard NeYf, Liskeard Inc v Industrial Wood and AlliedYf,orkers of Canada, Local 1-2995 (2005) unreported (Keller) Toronto Transit Commission and Amalgamated Transit Union Local 113 (2005) 5 unreported (HarrIs) Regional Municipality of Waterloo and Canadian Union of Public Employees Locals 1656 and 1883 (2005) unreported (Nairn) Selkirk Canada Corporation and Sheet Metal Workers' International Association, (2005) unreported (ShIme) Ontario Nurses' Association and The Participating Hospitals (2005) unreported (H.D Brown) KGyt,neer Company Canada Limited, and Shopmen's Local Union No 835 of the International Association of Bridge Structural, Ornamental and Reinforcing Iron Workers (2005) unreported (Saltman) Thermal Ceramics and United SteelYf,orkers of America, Local 16056 (2005) unreported (Bressette) Bains and National Life Assurance Co of Canada, [1991] B C J No 2538 Facility Assn. v TTC Insurance Co., [2001J 0 J No 730 Black's LGyt, Dictionary EIghth EdItIOn, p 1219 Carter v Goldstein, [1992] 66 D.L.R. 34 Re Daily Racing Form of Canada Ltd and Toronto Typographical Union, Local 91 (1991) 22 C.L AS 127 LGyt,son v Interior Tree Fruit and Vegetable Committee of Direction, [1931] S C.R. 357 Re Eurig Estate, [1998J 2 S C.R. 565 Canadian Union of Public Employees v Ontario (Minister of Labow) [2003 J 1 S C.R. 539 Placer Dome Canada Limited v Ontario (Minister of Finance) (unreported judgment of Court of Appeal August 31 2004) Health Services Insurance Act, 1968-69 SO 1968-69 c 43 Health Services Insurance Act, R.S 0 1970 c 200 Health Insurance Act, 1972 SO 1972 c 91 Health Insurance Act R.S 0 1980 c 197 Employer Health Tax Act, SO 1989 c 76 Employer Health Tax Act, R.S 0 1990 cEll Bill 1 06 1 st SessIOn, 38th Leg. (1 st ReadIng) Bill 106 LegIslatIve Assembly Web Page Ontario Health Premium Backgrounder Mimster of FInance, June 21 2004 Budget Speech Mimster of FInance, Frequently Asked Questionsfor Individuals Ontario Health Premium Mimstry of FInance Frequently Asked Questionsfor Employers Ontario Health Premium Mimstry of FInance Official Report of Debates (Hansard), 7 June 2004 (questIOns for the Finance mImster resumed debate on BIll 106 adjourned from May 20 2004 Includes vote), pp 2612-2613 Official Report of Debates (Hansard), 8 June 2004 (questIOns for the FInance Mimster) p 2675 Official Report 6 of Debates (Hansard) 21 June 2004 (first readIng of the BIll, questIOns answered by both the PremIer and FInance Mimster), pp 3076-3077 Official Report of Debates (Hansard) 24 June 2004 (questIOns for FInance Mimster - House adjourned for summer), pp 3255-3256 Memo to All Deputy Ministers fi'om Associate Deputy Minister Ministry of Finance re Ontario Health premium May 21 2004 Ontario Health Premium Mimstry of Health and Long Term care web page NeYf,s Release Mimstry of FInance, June 17 2004 NeYf,s Release Mimstry of FInance, June 21 2004 It IS not necessary to canvass all of the decIsIOn at length. Vanous legal charactenzatIOns of OHIP and the Ontano Health PremIUm have engaged the Interests of my fellow arbItrators In my VIew ArbItrator Swan, In OPG and POYf,er Workers Union supra, has capsulIzed the appropnate labour relatIOns ratIOnale at paragraphs 44 55 and 56 as follows ,-r 44 In m, VIew the correct wa, to look at thIS Issue IS to consIder what reasonable partIes m the posItIOn of the Emplover and the Dmon must have mtended when the, renegotIated the language mto the current collectIve agreement. ObVIOush that renegotIatIOn took place m a umverse where there was no eXlstmg OHIP premIUm, and where OHIP was funded b, the employer health tax. At the same tIme however the language chosen must have been mformed b, the fact that at one tIme there had been an OHIP premIUm In m, VIew reasonable partIes m theIr posItIOn would have mtended that, should some government Imtlatlve m the future reqUIre that a payment for OHIP-msured servIces be reqUIred of mdlvldual employees, the Emplover would be responsible to pa, that on behalf of the mdlvldual employees, provIded that It was matenalh and reasonabh sImIlar to the OHIP premIUm payable pnor to 1989 If the partIes had mtended that onh the remstatement of the prevIOUS OHIP premIUm m IdentIcal terms would tnggerthe clause the, could have expressed that m the language chosen, as dId the partIes m the two College CompensatIOn and Appomtments CouncIl cases Rather the, contmued to use language whIch m general reqUIred payment of 100% of the "premIUms" for OHIP ,-r 55 In decldmg thIS matter I have not consIdered some of the factors whIch seem to have attracted the attentIOn of some of m, fellow arbItrators As dIscussed, I thmk the dlstmctIOn between premIUms and taxes has httle beanng on the mterpretatIOn of the collectIve agreement, smce both the OHIP premIUm and the Ontano Health PremIUm are hvbnds of those pure legal concepts, and both are far closer m nature to taxes than premIUms I also thmk that the contributIOns of the Klrb, CommIssIOn on health care the statements m vanous government pubhcatIOns about the Ontano Health PremIUm, and the statements ofthe PremIer and other Mimsters have no value m relatIOn to the Issue before me the mterpretatIOn of a collectIve agreement. ~ 56 Havmg regard to all of the submIssIOns made to me and to the consIderable amount of 7 energy exerted b, other arbItrators m attemptmg to come to gnps wIth sImIlar Issues, I have come to the conclusIOn that reasonable partIes m the posItIOn of the present Emplover and Umon, negotlatmg for the current collectIve agreement, must have mtended that the language whIch the, used would cover not Just the partIcular OHIP premIUm m eXIstence before 1989 but an, matenalh and reasonabh sImIlar premIUm to be estabhshed m the future In m, VIew the OHIP premIUm was a tax contributed to the consohdated revenues of the provmce wIth the mtentIOn that It be used to fund the OHIP health care system I thmk that the Ontano Health PremIUm IS matenalh and reasonabh sImIlar to that, and the dlstmctIOns whIch are made m how the amount IS calculated and how deductIOn and payment take place are dlstmctIOns that do not create a sufficIent dIfference between the two to render the collectIve agreement language mapphcable to the Ontano Health PremIUm. I also find no value In vanous statements of the PremIers and other Mimsters or vanous reports In relatIOn to the Issue before me, the InterpretatIOn of a collectIve agreement. As was the case In TTC and ATU supra, It remaIns, In my VIew appropnate to have recourse to the statutory/regulatory framework whIch would have both Informed and constraIned the IntentIOns of the partIes In settlIng on the collectIve agreement language chosen. In Selkirk Canada COlporation and Sheet Metal Workers International Association supra, ArbItrator ShIme dIsagreed wIth the analysIs set out In TTC and ATU The follOWIng IS from pages 8 and 9 of Selkirk. Subsequent to the heanng, the Umon filed a decIsIOn of ArbItrator Hams m Toronto TransIt CommIssIOn and Amalgamated TransIt Umon, Local 113, unreported, March 17 2005 requmng the CommIssIOn to pa, the Ontano Health PremIUm rather than the mdlvldual employees The CollectIve Agreement m that case reqUIred the employer to pa, on behalf of employees " 100% of the total contributIOns reqUIred for the followmg coverages a) Ontano Health Insurance Plan." The ArbItrator rehed on Health Insurance Act R.s. 0 1990 ch. 6 S.10 whIch proVIded as follows Ontano Health Insurance Plan 8 10 The Ontano Health Insurance Plan IS contmued for the purpose of provldmg for msurance agamst the costs of msured servIces on a non-profit basIs on umform terms and condItIOns avaIlable to all reSIdents of Ontano m accordance WIth thIS Act and provldmg other health benefits related thereto R. S 0 1990 cH.6 SIO The ArbItrator concluded that the phrase "other health benefits related thereto" mcluded vlrtualh all health care expendItures He stated as follows "It IS hard to Imagme a health system expendIture that could not be described as a health benefit related to the provIsIOn of prescribed health care servIces" With respect, I am unable to agree wIth that conclUSIOn. The general scheme of the Health Insurance Act is to protect mdlvlduals from the costs assocIated WIth hospItal and health faclhtles care medlcalh necessan servIces ordered b, phYSICIans, and prescribed health care servIces rendered b, prescribed practItIOners The Act proVIdes for an mtegrated msurance scheme for mdlvlduals wIth the reqUIsIte payment of premIUms (the Emplover Health Tax) Bnefh put, an analYSIS of the Act m ItS entlret, does not lead to the conclUSIOn that the subordmate part of SectIOn 10 whIch proVIdes for msurance agamst the costs of msured servIces mcludes an, "health system expendIture" whIch would mclude an, change alteratIOn or addItIOn to the health mfrastructure The mference drawn b, ArbItrator Hams, m m, VIew IS far too broad and not m harmon, wIth the scope and content of the Health Insurance Act In m, respectful VIew the reference to "other health benefits related thereto" refers to benefits such as phvsIOtherap, or speech therap, that IS benefits whIch are SUpportIve of the msured servIces and msured benefits under the Act. I am unable to determme that thIS Act whIch proVIdes for an mtegrated msurance scheme m a subordmate phrase so WIdens the scope of the Act to enable a conclUSIOn that the contemplated changes to health care and to the health mfrastructure are mcluded m a scheme (OHIP) whIch was more narrowh conceIved for health msurance and the protectIOn of mdlvlduals agamst certam specIfic and deSIgnated costs As many of my fellow arbItrators have pOInted out, OHIP had ItS ongIns In the Health Services Insurance Act S 0 1968-69 c 43 That Act contaIned the follOWIng precursor to s 10 3 -(I) The Health ServIces Insurance Plan IS estabhshed for the purpose of provldmg for msurance of the costs of msured health servIces and such other servIces on a non-profit basIs on umform terms and condItIOns available to all reSIdents of Ontano m accordance wIth thIS Act, and providing other health benefits related thereto (emphasIs added) The regulatory power of the LIeutenant Governor In CouncIl was set out In s 32 and Included the follOWIng regulatory authonty 9 s 32 (p) establIshIng programs for the other health benefits referred to In subsectIOn 1 of sectIOn 3 and prescnbIng the terms and condItIOns of such programs That regulatory authonty was exercIsed wIth the passage of RegulatIOn 326/69 whIch addressed the "health benefits" as follows HEAL TH BENEFITS 17 The followmg programs are estabhshed as health benefits under the Plan. 1 A program supportmg and promotmg faclhtles for the educatIOn and trammg of health manpower 2 A program supportmg and promotmg arrangements to obtam a better dIstributIOn of health personnel. 3 A program supportmg and promotmg Improved patterns for the dehven of health care 4 A program supportmg and promotmg regIOnal plannmg and development of health servIces The programs set out In s 17 of RegulatIOn 326/69 are broad enough to cover vIrtually the entIre panoply of our provIncIal health care system. The regulatory response to the legIslatIve phrase "and proVIdIng other health care benefits related thereto" IS a compellIng aid to the InterpretatIOn of the phrase It IS Important to accord to the language of the statute ItS ordInary meamng. Buttressed as the language of the statute IS by the InterpretatIOn placed on It by RegulatIOn 326/69 the phrase In the statute does, In my VIew correctly lead to the conclusIOn that the scope of the Act was Intended to embrace all manner of health benefits The former OHIP programme and the Ontano Health PremIUm both target health concerns broadly However It must be borne In mInd that the Health Services Insurance Act, 1968-69 supra, created the Health Services Insurance Plan not OHIP OHIP was created by The Health Insurance Acct, 1972 S 0 1972 c91 at sectIOn 9 10 ONTARIO HEALTH INSURANCE PLAN 9 The Health ServIces Insurance Plan estabhshed b, The Health Services Insurance Act and the hospItal care msurance plan estabhshed b, The Hospital Services Com- mission Act are hereb, contmued m the Plan for the purpose of provldmg for msurance agamst the costs of msured servIces on a non-profit basIs on umform terms and condItIOns avaIlable to all resIdents of Ontano m accordance wIth thIS Act, and provldmg other health benefits related thereto SectIOn 1(1) establIshes that ""Plan" means the Ontano Health Insurance Plan establIshed under sectIOn 9" There was no specIfic regulatory power Included In The Health Insurance Act, 1972 supra, that IS analogous to s 32(p) of The Health Services Insurance Act, 1968-69 supra. None the less, the subordInate clause contInued to remaIn through succeSSIve versIOns of the Health Insurance Act AccordIngly the old regulatIOn remaInS a persuaSIve aid to ItS InterpretatIOn because OHIP IS a contInUatIOn of the earlIer plan. In my VIew OHIP IS shorthand for the Ontano publIc health system as a whole As Mr Swan put It, the Ontano Health PremIUm IS matenally and reasonably sImIlar to OHIP What then IS the oblIgatIOn of the Employer under thIS collectIve agreement WIth respect to makIng payments on behalf of the employees to support that system? I turn now to a consIderatIOn of the language of thIS collectIve agreement and agaIn set It out for the sake of convemence BI05 Benefits Covered - Full-time Employees (b) All full-tIme employees wIll be covered for the folloWIng medIcal and group Insurance benefits at no premIUm cost to the employee (v) o .H.I.P 11 ARTICLE BS.O Ontario Health Insurance Plan BS.Ol The Employer wIll comply wIth appropnate legIslatIOn In makIng remIttances of Employer Health Tax In order to provIde O.H.I.P coverage to all elIgIble employees and theIr elIgIble dependents Benefits wIll be as provIded by the O.H.I.P Plan. Those provIsIOns have remaIned unchanged SInce the 1991-1993 collectIve agreement. The language was specIfically changed then In response to the passage of the Employer Health Tax Act, 1989 S 0 1989 c 76 As many of the cases dISCUSS, that Act repealed any employee lIabIlIty for premIUm payments and replaced those payments wIth a payroll tax Imposed upon employers These partIes responded to the legIslatIve changes by altenng theIr collectIve agreement language In the ImmedIately pnor collectIve agreement (1989-1991) artIcle B 1 05 IS essentIally the same, but artIcle B5 OIlS dIfferent and reads as follows ARTICLE B5 0 ONTARIO HEALTH INSURANCE PLAN B5.01 The Emplover shall pa, one hundred percent (100%) of each employee's Ontano Health Insurance Plan monthh premmm. Benefits will be as provIded b, the 0 H.I.P Plan. Monthh premIUms for O.H.I.P are paId b, the Emplover commenCIng WIth the month the employee IS appoInted to staff. o .H.I.P coverage shall commence effectIve the first da, of the month Immedmteh follOWIng completIOn of the reqUIred waItmg penod for O.H.I.P benefit coverage The Emplover will not be responsible for benefit coverage should retro-actlve payments not have been made pnor to the hmng date WIth the Emplover The agreement pnor to that (1986-1989) had an entIrely dIfferent structure Although OHIP IS referred to In a number of paragraphs, I take the employer's payment oblIgatIOns to be encapsulated In paragraph 4 as follows 4 ONTARIO HEAL TH INSURANCE PLAN The Emplover shall pa, one hundred percent (100%) of each employee s Ontano Health Insurance Plan monthh premIUm Benefits will be as proVIded b, the O.H.I.P Plan. 12 The pnor agreements of 1985-1987 1983-1984 and 1981-1983 also contaIn that language There can be no doubt that hIstoncally the collectIve agreements between the partIes have Included an oblIgatIOn upon the employer to pay the OHIP monthly premIUm. Pnor to the 1989- 91 agreement the oblIgatIOn was put just that plaInly After that tIme the language changed. ArtIcle B 1 05 says that OHIP benefits wIll be provIded "at no premIUm cost" The employer's oblIgatIOn was then defined In B5 01 as beIng to pay "one hundred percent (100%) of each employee's monthly premIUm" All of the techmcal reqUIrements as to the tImIng of the oblIgatIOn etc are also set out. The addItIOn of artIcle 5 01 to the 1986-89 agreement was Intended to tIe down the defimtIOn of what IS meant by artIcle 1 05 With the passage of the Employer Health Tax Act the all Important defimtIOnal sectIOn, artIcle 5 01 was changed. Thereafter the employer was reqUIred to pay the Employer Health Tax. To sum up the collectIve agreement between the partIes provIdes that OHIP benefits would be provIded, pursuant to artIcle B 1 05 at no premIUm cost. ArtIcle 5 01 sets out what the partIes Intended that the employer pay pursuant to B 1 05 After 1991 the collectIve agreement says that the employer wIll fulfill the promIse of B 1 05 by paYIng the Employer Health Tax. There IS no dIsagreement that the employer contInues to do so That IS, B 1 05 does not stand alone, It IS to be read as part of the overall language of the collectIve agreement, partIcularly havIng regard to the overall scheme of the benefits provIsIOns set out In Schedule "B" IncludIng artIcle B5 01 Read together artIcle Bl 05 and B5 01 lImIt the employer's oblIgatIOn to the payment of the Employer Health Tax. 13 AccordIngly on the language of thIS collectIve agreement, there IS no oblIgatIOn upon the employer to pay the Ontano Health PremIUm, a tax levIed under BIll 106 Dated at Toronto thIS 19th day of October 2005