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HomeMy WebLinkAboutUnion 18-12-19IN THE MATTER OF ARBITRATION UNDER THE LABOUR RELATIONS ACT, 1995 BETWEEN THE CORPORATION OF THE COUNTY OF FRONTENAC and ONTARIO PUBLIC EMPLOYEES UNION, LOCAL 462 ("the Employer") ("the Union") Policy Grievance re: Supplemental Parental Leave Benefits Grievance No. 2018-0462-0006 SOLE ARBITRATOR: Colin Johnston APPEARANCES: For the Employer: For the Union: Mark H. Mason, Counsel Paul J. Charbonneau, Chief Paramedic Barb McCulloch, Manager of Human Resources Gale Chevalier, Deputy Chief of Operations Darryl Korell, Counsel Shauna Dunn, Local President Andrew Gagnon, Unit Steward Hearing held in Kingston, Ontario on November 19, 2018 AWARD [1]I was appointed by the parties to hear this policy grievance dated February 26, 2018. The grievance relates to a dispute over the calculation of supplemental parental benefits. Under the collective agreement, full-time paramedics employed with the County who qualify for Employment Insurance ("El") parental benefits are entitled to 10 weeks of supplemental benefits representing 84% of their normal weekly earnings, less any El benefit received. [2]In December 2017, the Federal Government amended the Employment Insurance Act ("El Act") to allow parents the option to elect to receive standard benefits at 55% of weekly earnings for up to 52 weeks; or extended benefits at 33% of weekly earnings for up to 61 weeks. Prior to the amendments, the El Act only provided for standard benefits. The details of those changes are highlighted at paragraph 5 of the parties' Agreed Statement of Facts which is reproduced below. [3]The dispute in this case is whether the Employer is obliged to pay more in supplemental benefits to cover the shortfall which results when an employee opts for the lesser extended El benefit. The maximum standard weekly benefit is $547. The maximum weekly extended benefit is $328. The shortfall, therefore, represents $219 per week or a total of $2,190 over a ten week period. [4]The Union submitted that the supplemental benefits should cover this shortfall. The Employer argued that it is not obligated to cover the shortfall as the calculation of supplemental benefits should be based solely on the standard El benefit. [5]The facts in this case are not in dispute. The parties relied on an Agreed Statement of Facts which is reproduced below. In addition to the policy grievance, there are two individual grievances filed on this issue, however, those grievances are not before me in this matter. The parties proceeded with the policy grievance as they are looking for an interpretation of Article 21.08 as they proceed to bargaining. The current collective agreement expires at the end of 2018. AGREED STATEMENT OF FACTS AND DOCUMENTS 1.The County of Frontenac (the "Employer) provides Frontenac Paramedic Services, which delivers emergency medical services in Frontenac County and in the City of Kingston. 2.The Ontario Public Service Employees Union, Local 462 (the "Union"), represents full-time and part-time paramedic staff. 3.The paramedic workers are covered under a Collective Agreement with a term of January 1, 2016 to December 31, 2018 (the "Collective Agreement"), attached at TAB 1. The previous collective agreement had a term of January 1, 2014 to December 31, 2015. The Collective Agreement (January 1, 2016 to December 31, 1 2018) was finalized through collective bargaining on February 2, 2017. The Memorandum of Settlement, dated February 2, 2017 is, attached at TAB 4. 4.On February 26, 2018, the Union filed a grievance under the Collective Agreement alleging that the Employer violated the Collective Agreement, including but not limited to Article 2 (Management Responsibilities), 21.07 (Pregnancy Leave), and 21.08 (Parental Leave). The grievance is attached at TAB 2. 5.On December 3. 2017, two options became available for receiving parental benefits under the Employment Insurance Act, SC 1996, c.23 (the "Act"). Claimants under the Act could from that time obtain standard or extended parental benefits. Standard parental benefits are payable for a maximum of 35 weeks at a benefit rate of 55 percent of a claimant's weekly insurable earnings, up to a maximum amount. The maximum regular El benefit for 2018 is $547.00 per week. The benefits must be claimed within 52 weeks after the week the child is born or placed for the purpose of adoption. Extended parental benefits, on the other hand, are payable for a maximum of 61 weeks at a lower benefit rate of 33 percent of a claimant's weekly insurable earnings, up to a maximum amount. The maximum extended El benefit for 2018 is $328.00 per week. The benefits must be claimed within 78 weeks after the week the child is born or placed for the purpose of adoption. 6.The Collective Agreement states the following with respect to parental leave at Article 21.08: Parental Leave ( Full-time employees only) a)Parental leave shall be in accordance with the Employment Standards Act, 2000 as amended from time to time. b)Effective on confirmation by the Canada Employment Insurance Commission of the appropriateness of the Employer's Supplementary Benefit (SUB) Plan, an employee who is on parental leave as provided under this Agreement who has applied for and is in receipt of Employment Insurance parental benefits pursuant to Section 22 of the Employment Insurance Act shall be paid a supplemental unemployment benefit for a period not exceeding (10) weeks commencing following completion of the Employment Insurance waiting period. The supplement shall be equivalent to the difference between eighty-four percent (84%) of her normal weekly earnings and the sum of her weekly unemployment insurance benefits and any other earnings. Receipt by the Employer of the employee's unemployment insurance cheque stubs shall constitute proof that she is in receipt of Employment Insurance parental benefits. 2 c)The employee's normal weekly earnings shall be determined by multiplying her regular hourly rate on her last day worked prior to the commencement of the leave times her normal weekly hours plus any wage increase or salary increment that she would be entitled to receive if she were not on parental leave. d)The employee does not have any vested right except to receive payments for the covered unemployment period. The plan provides that payment in respect of guaranteed annual remuneration or in respect of deferred remuneration or severance pay benefits are not reduced or increased by payments received under the plan. 7.Article 21.09 of the Collective Agreement states that parental leave shall be in accordance with the Employment Standards Act, 2000 as amended from time to time. It also addresses the calculation of seniority for part-time employees while on pregnancy leave or parental leave. Article 21.09 is new in the Collective Agreement January 1, 2016 to December 31, 2018. 8.One June 19, 2018, the Union wrote a letter to Arbitrator Colin Johnston inviting him to hear and adjudicate the grievance. A copy of this letter is attached as TAB 3. 9.The parties later agreed to have the arbitration heard on November 19, 2018. Position of the Union [6]The Union submitted that there is no ambiguity in the language of Article 21.08(b). It obligates the Employer to pay a supplemental top up equal to 84% of an employee's normal weekly earnings less El benefits received. To pay anything less, would violate the clear language of that provision and represent a unilateral change in the terms of the collective agreement. [7]The fact that the parties did not contemplate the introduction of extended benefits does not change the bargain reached between the parties at Article 21.08(b). If the Employer wished to limit its obligations in the face of possible legislative changes, it should have negotiated specific language to achieve that result. [8]The Union put forward a hypothetical situation to illustrate its point. If the Government were to increase the maximum weekly El benefit, this would have the effect of reducing the amount of the supplemental benefits paid out by the Employer. The Union could not argue in those circumstances that the Employer was not entitled to the benefit of these changes. The same therefore, was true if the El benefit were to be reduced, as was the case here. The Employer would have to live with those results. 3 [9]The Union relied on the following case law in support of its position: Richmond (City) v. I.A.F.F., Local 1286, 202 CarswelIBC 3487 (Kellher), Weyerhaeuser Canada Ltd. v. C.E.P. Locals 105 and 1323, 1999 CarswellOnt 5429 (Devlin), Algoma Steel Inc. v. USWA, Local 2251, 2006 CarswellOnt540 (Albertyn), McCain Foods (Canada) v. U.F.C.W. Local 1000A, 2007 CarswellOnt 8021 (Dissanayake), and Gateway Casinos & Entertainment Ltd. and BCGEU (Layoff Wage Reduction), Re, 2016 CarswelIBC 92 (Brown). Position of the Employer [10]The Employer submitted that it was never the intent of the parties to pay supplement benefits on an amount other than the standard El benefit, as it was the only benefit that existed at the time the collective agreement was negotiated. Had the parties known that the legislative changes were forthcoming, they would have addressed these issues at the bargaining table. [11]The Employer pointed to the fact that the parties amended Article 21 during the last round of bargaining to reflect contemporaneous changes to the El Act which reduced the waiting period for benefits from two weeks down to one. The parties did not have the same opportunity to turn their minds to the introduction of extended parental benefits because those changes only came into force in December 2017. Had the parties known of these changes they would have turned their mind to the issue. [12]The Employer refuted the claim that it has unilaterally changed the bargain reached in Article 21.08(b). It explained that what the Employer pays in supplemental benefits now, is the same as it paid under the old El system. It is the same amount that is paid out to employees who elect for standard benefits. The Employer is not paying a lesser amount. What the Union proposes on the other hand, is that the Employer pays out more in supplement benefits to those who elect extended benefits. This was never the intention of the parties. [13]The Employer goes on to state that if I were to accept the Union's interpretation then I would be granting a windfall to those who elect extended benefits, as they would receive $2,190 more in supplemental benefits than their colleagues who opted for standard benefits. Again, that was never the intention of the parties. [14]The Employer noted as significant the fact that it is the individual employee who voluntarily elects for the lesser benefit. It is not mandated by the Government. The trade-off for those who elect for extended benefits is a longer parental leave time but at a lower weekly rate. In the end, the total amount of El benefits paid out is the same whether an employee opts for standard or extended benefits. By design, there is no additional cost to the Government. Why then should there be an additional cost to the Employer? 4 [15]As a matter of interpretation, the Employer urged that I read the words in Article 21.08(b) in the context of the language of the entire agreement. To that end, the Employer contrasted the reference to the El Act in Article 21 with other legislation referenced in the collective agreement. It pointed me to various references to the Employment Standards Act, 2000 and the Occupational Health and Safety Act throughout the agreement. In each case the legislation is qualified with the words "as amended". [16]The Employer submitted that the use of the qualifier is significant in that, it suggests that the parties understood that the legislation would be amended from time to time and that those amendments were equally binding on the parties. The fact that there is no similar qualifier beside the reference to El Act in Article 21, signifies that the parties did not intend it to have a prospective application. That is, the parties meant to apply the legislation as it existed at the time of negotiations and not be subject to future amendments. Hence the only El benefit contemplated by the collective agreement is the standard El benefit. [17]The Employer made reference to the following decision for its instruction on the rules of collective agreement interpretation: C.E.P., Local 777 v. Imperial Oil Strathcona Refinery, 2004 CarswellAlta 1855 (Elliott). Analysis [18]The inquiry into the matter begins with a review of the language of the collective agreement. The role of the arbitrator is to interpret the intent of the parties through the plain and ordinary meaning of the language of the collective agreement. If a plain reading of the language leads to a clear, discernible result then there is no need for me to look elsewhere to uncover the intention of the parties. [19]The operative language in this case is set out in the second sentence of Article 21.08(b) which reads, "The supplement shall be equivalent to the difference between eighty-four percent (84%) of her normal weekly earnings and the sum of her weekly unemployment insurance benefits and any other earnings." The issue in this case comes down to an interpretation of the phrase, "weekly employment insurance benefits". What did the parties intend this term to mean? Does it refer strictly to standard El benefits or does the language allow for a more expansive interpretation which would include both standard benefits and extended benefits? [20]I think a plain reading of the words "weekly unemployment insurance benefits" is clear and unequivocal. It simply means the actual weekly El amount received by the individual who qualifies for parental benefits. It is not restricted to any specific amount or percentage. Even under the old system, the amount of weekly benefits could vary from time to time based on the amount set as the maximum weekly benefit, If the 5 Government were to increase the maximum weekly benefit then it would reduce the amount of the supplemental benefit paid out by the Employer. [21]There is no dispute that at the time the current collective agreement was negotiated the parties did not contemplate different levels of El benefits. The only benefit that existed at that time of bargaining was the standard El benefit. With that said, it should be presumed that the parties understood that changes to the El Act could impact the level of benefits. [22]The fact that benefits negotiated under a collective agreement may change or vary based on legislative changes is nothing new. The very fact that these changes may take place does not alter the bargain reached between the parties. [23]This view was articulated by Arbitrator Devlin at paragraph 31 of her decision in Weyerhauser Canada supra wherein she stated, Moreover, in my view, the fact that a particular cost could not have been contemplated by the parties at the time a benefit was negotiated is not determinative of whether or not that cost is covered by a particular benefit plan. In this regard, there is no doubt that subsequent to the execution of a collective agreement, economic or legislative changes may occur which alter the expectations of the parties regarding particular costs. Nevertheless, absent an overriding legislative provision, such changes do not relieve either party of its obligations under the collective agreement. [24]If the Employer wished to limit its liability in the face of legislative changes then it would need to spell that out in the language of the agreement. The language of Article 21.08(b) as it currently reads, places no restriction on the level of benefits. There is nothing in the language of Article 21.08(b) to suggest that the level of benefits are static. [25]The Employer proposes that there is nothing improper in paying out the same level of supplemental benefits for those who elect either standard or extended benefits. The language in Article 21.08(b), however, is not premised on paying a similar dollar amount to each claimant. The language in that provision is predicated on keeping the employee whole, in the sense that it guarantees the maintenance of 84% of an employee's normal weekly earnings less monies received through El benefits. If employees receive something less than that amount then the Employer has not met its obligations under Article 21.08(b). [26]There is no question that the extra cost borne by the Employer in this case is driven by the employee's election to receive a lesser El benefit and that decision is a voluntary one. But the voluntarily nature of this election does not change my reading of Article 21.08(b). The language in that provision does not require the employee to elect a certain type of parental benefit or choose the highest level of benefits available. The 6 term "weekly unemployment insurance benefits" simply connotes the amount of money the employee receives from El. It does not ask how the level of benefit came about. [27]The fact that employees who opt for extended benefits may receive more in supplemental benefits then those who elect standard benefits, again does not change my reading of Article 21.08(b). There is nothing in that provision to suggest that employees must receive the same dollar amount in supplemental benefits as their colleagues. [28]Finally, I turn to a consideration of the language of the collective agreement as a whole. The Employer views it as significant that the parties use the qualifying phrase "as amended" next to references to other legislation in the agreement, but does not do the same for the reference to the El Act in Article 21.08. I appreciate that as a matter of construction, the inclusion of certain qualifying words to one item and their exclusion to another, normally implies that the parties intended the items to have different meanings. [29]However, in my view, the parties' choice to add the words "as amended" simply reinforces the notion that the legislation is not static and may be amended from time to time. The fact that the parties did not use the same qualifier when referring to the El Act, r does not, necessarily infer that the parties meant to freeze that legislative reference in time. [30]To achieve that result, I would expect the parties would need to negotiate much more specific language, particularly where such language is meant to restrict the level of benefits negotiated in the collective agreement. Moreover, given that arbitrators have authority to interpret and apply employment-related legislation in a contemporaneous manner, I would expect that any effort to limit the temporal application of legislation would require much more explicit language. [31]For all of the foregoing reasons, I allow the grievance and uphold the Union's interpretation of Article 21.08(b). Employees who qualify for parental benefits and elect for extended benefits are entitled to be topped up to 84% of their normal weekly earnings less the amounts received in extended El benefits. Dated this 19th day of December, 2018 in the Town of Lakeshore, Ontario. Colin Johnston, Arbitrator 7