HomeMy WebLinkAbout2015-3083.White et al.19-01-17 Decision
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(White et al) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Ken Petryshen Arbitrator
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Paul Meier
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING
March 22, 2017; June 12, 2017; April 3,
2018
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DECISION
[1] I have before me a number of grievances which allege a failure by the Employer
to comply with a Letter of Understanding (“LOU”) that deals with Administrative
Compensating Leave (“ACL”). Although the grievances raise a number of
issues, the parties agreed to focus at this stage of the proceedings on certain
central issues that arise from a Union grievance dated May 27, 2016.
[2] The Union grievance was filed against the Ministry of Community Safety &
Correctional Services and the Ministry of Children and Youth Services. It reads
as follows:
STATEMENT OF GRIEVANCE
The Employer is in violation of the Collective Agreement and the
ACL Letter of Understanding by not prorating ACL entitlement for
any employee that commenced employment post January 1, 2016.
SETTLEMENT DESIRED
1) Prorate ACL entitlement for any employee who commenced
employment after January 1st, 2016.
2) Compensate any bargaining unit employee adversely
affected by this inappropriate refusal to prorate ACL credits.
3) Any other remedy deemed appropriate.
[3] The ACL LOU is in Appendix COR33 (“COR33”) and forms part of the
Correctional Bargaining Unit Collective Agreement. The LOU is dated May 26,
2016, is addressed to Mr. A. Zafiriadis, the Union’s Senior Negotiator,
Corrections Team, and is from by Mr. M. Villeneuve, Director, Negotiations and
Security Branch. Irrespective of how the LOU appears in COR33, the proposal
for an ACL LOU came from the Union. The date of May 26, 2016, is consistent
with the effective date of the renewal Collective Agreement. The ACL LOU had
been agreed to earlier during bargaining and was implemented by the Employer
on April 1, 2016. The substance of the ACL LOU is as follows:
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Re: Letter of Understanding
Administrative Compensating Leave
The employer is currently engaged in modernizing facilities
programs and services within the Ministry of Community Safety and
Correctional Services, and the Ministry of Children and Youth
Services. It is recognized that as the modernization process
unfolds, working conditions, staffing needs and scheduling patterns
need to evolve to match a changing work environment. The
employer values the work of all of its employees and would like to
maintain a highly trained and professional workforce.
In recognition of some of the current impacts from a challenging
and changing workplace environment, all full time and fixed term
correctional services bargaining unit employees shall be granted
thirty-six hours (36) of compensating leave, pro-rata for part time,
effective January 1, 2016, and on January 1, 2017. Compensating
leave that is not used within a calendar year shall be treated in
accordance with article COR8.6 or article COR15.5, as applicable.
[4] The central issue in dispute regarding ACL concerns eligibility. The parties
addressed the eligibility issue and two other matters by presenting me with an
Agreed Statement of Fact and a Joint Book of Documents. Neither side felt it
necessary to call viva voce testimony. The Agreed Statement of Fact presents a
detailed review of the relevant circumstances relating to the ACL LOU and the
specific issues the parties wanted to address at the hearing. The Agreed
Statement of Fact, absent the footnotes referencing documents, provides as
follows:
AGREED STATEMENT OF FACT
General Background
1. On October 3, 2014, OPSEU served the Employer with notice of
its intent to meet and negotiate changes to the Central Collective
Agreement, the Unified Bargaining Unit Collective Agreement and
the Correctional Bargaining Unit Collective Agreement.
2. On November 20, 2014, the Employer and OPSEU commenced
collective bargaining at the Sheraton Centre in Toronto.
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3. On December 31, 2014, the Central, the Unified Bargaining Unit
and the Correctional Bargaining Unit Collective Agreements
expired.
4. On September 22, 2015, the Employer and OPSEU reached a
tentative agreement with respect to the Central and Unified
bargaining units.
5. On October 30, 2015, the parties ratified new three-year
Central/Unified Collective Agreements.
6. The Employer and OPSEU continued to bargain towards a new
Collective Agreement for the Correctional Bargaining Unit.
Correctional Bargaining Unit Tentative Agreement
7. On November 23, 2015, the Employer and OPSEU reached a
tentative agreement with respect to the Correctional Bargaining
Unit. Specifically, the parties entered into a “Memorandum of
Settlement of all outstanding matters in dispute” between the
Employer and OPSEU (the “November 2015 MOS”).
8. The November 2015 MOS documented the parties’ agreement to
renew the Corrections Collective Agreement, “subject to
ratification by both parties” (at paragraph 1).
9. The November 2015 MOS also stipulated the effective dates of
the renewal Corrections Collective Agreement: the Collective
Agreement “shall be effective on the date of ratification by both
parties and shall expire on the 31st day of December 2017”
(paragraph 2).
10. The November 2015 MOS included a Memorandum of Agreement
titled “In the Matter of [the] Development of a Stand[-A]lone
Collective Agreement for the Correctional Bargaining Unit” (the
“November 2015 MOA”).
11. In the November 2015 MOA’s preamble, the parties agreed “that
this MOA is conditional on the ratification by both parties of the
Correctional Category Agreement with a term commencing
January 1, 2015” and emphasized that the November 2015 MOA
“will be of no force and effect if the Correctional Category
Agreement is not ratified by both parties”.
12. The November 2015 MOA incorporated the items that the parties
had agreed to during bargaining. Specifically, Appendix B of the
November 2015 MOA was headed “U18” (“Union Proposal 18”)
dated November 23, 2015.
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13. In Appendix B, the Union proposed a Letter of Understanding
(“LOU”) that it had drafted.
14. Specifically, the Union proposed, as Item 10 of Union Proposal
18, a LOU headed “New – Administrative Compensating Leave”
(“ACL”). Under the Union’s proposed LOU, the proposed ACL
credits would be a new type of credit, only available to
correctional services bargaining unit employees.
15. The Union’s ACL LOU as proposed on November 23, 2015
stated:
The employer is currently engaged in modernizing
facilities programs and Services within the Ministry of
Community Safety and Correctional Services, and the
Ministry of Children and Youth Services. It is
recognized that as the modernization process unfolds,
working conditions, staffing needs and scheduling
patterns need to evolve to match a changing work
environment. The employer values the work of all of its
employees and would like to maintain a highly trained
and professional workforce.
In recognition of some of the current impacts from a
challenging and changing workplace environment, all
full time and fixed term correctional services bargaining
unit employees shall be granted thirty-six hours (36) of
compensating leave, pro-rata for part time, effective
January 1, 2016, and on January 1, 2017.
Compensating leave that is not used within a calendar
year shall be treated in accordance with article COR
8.6.
Bargaining Unit Employees Reject the November 2015 MOS
16. On November 23, 2015, the Employer and the Union signed the
November 2015 MOS (which included the ACL LOU). The
representatives of the Union and the Employer “unanimously
agree to recommend these terms of settlement as attached to
their respective principals and, in the case of the signatories for
the Union, to the bargaining unit employees” (at paragraph 6).
17. As stated in section 44(1) of the Labour Relations Act, 1995,
under the heading “mandatory ratification vote”, a memorandum
of settlement “has no effect until it is ratified”. Given that the
Employer’s principals ratified the November 2015 MOS, if more
than 50 per cent of those voting from the Correctional Bargaining
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Unit voted in favour of ratifying the November 2015 MOS, then
the parties’ tentative agreement would have come into effect.
18. On or about December 10, 2015, Correctional Bargaining Unit
employees voted on whether to ratify the tentative agreement. 67
per cent of those who voted chose to reject the November 2015
MOS, which included the ACL LOU (i.e., being Appendix B of the
November 2015 MOA, Union Proposal U18, Item 10).
19. On December 18, 2015, OPSEU asked the Ministry of Labour for
a “no board” report. The strike deadline was January 10, 2016.
The Parties’ January 2016 Deal (Incorporating the
November 23, 2015 ACL LOU)
20. On January 9, 2016, the Employer and OPSEU reached a
Memorandum of Agreement titled “In the Matter of the Referral of
Correctional Bargaining Unit Matters in Dispute to Arbitration”
(“January 2016 MOA”).
21. The purpose of the January 2016 MOA was to “irrevocably agree
in writing to refer all matters remaining in dispute between them to
an interest arbitrator for final and binding determination”. As a
result, the remaining disputes would not be determined through
negotiations, but through a process of interest arbitration. As
stated in the preamble of the January 2016 MOA:
AND WHEREAS the parties agree to conclude collective
bargaining negotiations for the Correctional Category Agreement
and refer all matters remaining in dispute to mediation-arbitration;
22. Paragraph 1 of the January 2016 MOA stated:
The parties acknowledge that they have reached an agreement
on all Correctional Category Agreement items except for those
matters listed in paragraph 6 of this MOA. The agreement
reached by the parties is appended hereto as Appendix A.
23. At paragraph 3 of the January 2016 MOA (at Tab 2(a)), the
parties agreed to appoint Arbitrator Kevin Burkett as an interest
arbitrator.
24. Paragraph 7 of the January 2016 MOA stated that the parties
“acknowledged that interest arbitration as set out in this MOA
shall result in a final and binding decision, which shall be
implemented by the parties in accordance with all applicable
provisions of CECBA and the LRA”.
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25. Paragraph 9 of the January 2016 MOA provided that “all agreed
to items as set out in Appendix A shall be deemed to be
incorporated into the arbitrator’s decision”.
26. In announcing the January 2016 MOA to Correctional Bargaining
Unit members, OPSEU advised that there would not be a
ratification vote, stating:
Will there be a ratification vote?
There is no vote. Outstanding issues will go to binding arbitration
in front of a single arbitrator, Kevin Burkett. The issues already
agreed on will form part of the arbitrator’s award.
27. As Appendix A of the January 2016 MOA, the parties entered
into a Memorandum of Settlement dated January 9, 2016
(“January 2016 MOS”). The January 2016 MOS set out “the
agreed-to items for collective bargaining negotiations between the
OPSEU Correctional bargaining unit and the Employer”.
Specifically, as Appendix A, the January 2016 MOS incorporated
specific and identifiable sections of the parties’ November 2015
MOS.
28. The January 2016 MOS did not make any changes to the ACL
LOU (i.e., as proposed by the Union on November 23, 2016,
being Item 10, Union Proposal “U18”, Appendix B of the
November 2015 MOA).
March 2016 ACL LOU Fact Sheet & Establishing ACL Credit Banks
29. On March 11, 2016, Mr. Michael Villeneuve, Director,
Negotiations and Security Branch, Employee Relations Division,
TBS, emailed Mr. Anastasios Zafiriadis, Senior Negotiator,
Corrections Team, OPSEU. In that email, Mr. Villeneuve wrote:
The Employer is in the process of implementing the new
Administrative Compensating Leave (ACL) entitlement
and changes to Compensating Time-Off (CTO) for
eligible employees in OPSEU’s Correctional (COR)
bargaining unit. Our plan is to implement both of these
items on April 1, 2016.
As part of our implementation, we have developed fact
sheets that we intend to share with staff prior to April 1st.
I’m providing you a draft copy of each Fact Sheet in
advance and I am requesting that you review and provide
any feedback you may have. Alternatively, my team and I
are available to meet and discuss these documents with
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you or your bargaining team. Since April 1st is fast
approaching, it would be beneficial to complete this
review at the earliest date possible. If you are interested
in meeting, we would like this to occur no later than
March 18th. Please call if you would like to discuss.
30. Attached to Mr. Villeneuve’s email were two draft fact sheets, one
fact sheet dealing with the new ACL credits and the other with
changes to Compensating Time Off (“CTO”).
31. The ACL Fact Sheet stated (page 1):
OPSEU-represented employees in the Correctional
(COR) bargaining unit may be eligible to receive
Administrative Compensating Leave (ACL) credits in
2016 and 2017. Eligible employees will receive up to
thirty-six (36) hours of compensating leave in 2016 and
another thirty-six (36) hours of compensating leave in
2017. The credits will be pro-rated for eligible employees
who work less than full-time hours.
32. Under the heading “Eligibility Criteria”, the ACL Fact Sheet
stated (pages 1-3):
In order to be eligible to receive ACL credits in 2016,
employees must be assigned to a COR bargaining unit
position on January 1, 2016. Likewise, in order to be
eligible to receive ACL credits in 2017, employees must
be assigned to a COR bargaining unit position on
January 1, 2017.
…
Employees who commence work in a COR
bargaining unit position after January 1, 2016 are not
entitled to receive ACL credits in 2016. Likewise, if
the employee commenced work in a COR bargaining
unit position after January 1, 2017, they would be
ineligible for 2017 ACL credits.
33. Under the heading “Administration, Use and Payout of ACL
Credits”, the ACL Fact
Sheet stated (at page 2):
ACL credits that are not used before March 31st of the
following year will be paid out at the rate of pay the
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employee was earning on the day the entitlement went
into effect. For greater certainty:
. Credits provided in 2016 shall be paid out
at the rate the employee was earning on
January 1, 2016; and
. Credits provided in 2017 shall be paid out
at the rate the employee was earning on
January 1, 2017.
34. The ACL Fact Sheet then provided a number of “eligibility”
scenarios under the heading “Examples”. The ACL Fact Sheet
stated (at pages 3 and 4):
New Employee in the Correctional Bargaining Unit
Scenario ‘A’:
OPSEU employee commences their work assignment at
full-time hours in a COR bargaining unit position on
December 31, 2015.
Eligibility:
The employee would be eligible to receive 36 hours of
ACL credit in 2016 because they are assigned to a COR
bargaining unit position working full-time hours on
January 1, 2016.
Scenario ‘B’:
OPSEU employee commences their work assignment
in a COR bargaining unit position on January 2, 2016.
Eligibility:
The employee would be not eligible to receive ACL
credits in 2016 because they were not assigned to
COR bargaining unit position on January 1, 2016.
35. The Fact Sheet also advised that “[f]or the purposes of tracking
and managing ACL credits in the Workforce Information Network
(WIN) system, ACL credits shall remain separate and distinct from
regular Compensating Time-Off (CTO) credits that employees
earn for working overtime hours” (page 3).
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36. Mr. Zafiriadis forwarded Mr. Villeneuve’s email and the ACL Fact
Sheet to OPSEU’s COR bargaining committee on March 14,
2016.
37. As the Employer had advised OPSEU representatives, the
Employer needed to create a new separate and distinct module
(or “bank”) to track and manage ACL credits in the OPS
Workforce Information Network (“WIN”) computer system. Thus,
to implement the new ACL credit bank in the WIN system, the
Ministry of Government & Consumer Services (“MGCS”), Ontario
Shared Services, Pay & Benefits Division, created the “OPSEU
Correctional Services Bargaining Unit: Administrative
Compensating Leave Business Requirement Document” dated
January 28, 2016 (last updated March 10, 2016) based on the
ACL eligibility criteria (the “MGCS Business Requirement
Document”). Prior to these proceedings this document was not
disclosed to nor shared with the Union.
38. As stated in the MGCS Business Requirement Document, under
the heading “Summary of Scope” (at page 8):
A.3 In-Scope
. Employees who were represented by OPSEU
Correctional Bargaining Unit on January 1, 2016.
. COR employees temporarily assigned to a non-
bargaining unit position are entitled to receive ACL credit.
. COR employees temporarily assigned to a
position in another bargaining unit (e.g., AMAPCEO,
OPSEU Unified) are only eligible to receive ACL credits if
they were paying dues to OPSEU’s COR bargaining unit
on January 1, 2016 (i.e., during the first 30 days of the
temporary assignment).
A.4 Out-of- Scope
. Employees represented by OPSEU Correctional
Bargaining Unit, but who are assigned to the position on
any date after the effective date (e.g., assigned as of
January 2, 2016).
. Employees not represented by OPSEU’s COR
bargaining unit.
. Students and seasonal employees represented by
OPSEU’s COR bargaining unit.
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39. Under the title “Creation of a new Administrative Compensating
Leave (ACL) Entitlement plan and Accumulators”, the MGCS
Business Requirement Document’s “Requirement Details”
stated in part (at page 12, “BR1”):
Employees are to be assigned ACL credits effective
January 1, 2016 and then again in January 1, 2017 per
eligibility below:
a) All active (HR Status = Active) full time Regular and
Fixed Term employees who are represented by OPSEU’s
COR bargaining unit (on a permanent or temporary
assignment*) on January 1, 2016 (for Year 2016
assignment) and on January 1, 2017 (for Year 2017
assignment) are to be assigned a maximum of 36 hours
of Administrative Compensating Leave (ACL) each year.
*Note: see Appendix 2 for assignment of ACL credits to
employees on a temporary assignment.
b) Assignment of credits is to be pro-rated for part time
employees based on the ratio of their scheduled weekly
hours compared to full-time hours for their position (FTE
<1).
40. Under the title “Change in Eligibility and/or FTE change part way
through the year”, the MGCS Business Requirement Document’s
“Requirement Details” stated in part (at page 13, “BR3”):
Once an eligible employee has been assigned ACL
credits, no automatic adjustments of any kind must be
made to the employee’s ACL credits, if the employee has
any kind of Pay Group change (due to transfer,
temporary assignment) and/or FTE change or
Termination from the OPS part way through the year. All
credits assigned must remain available for the
employee’s use and/or payout.
41. Under the title “Payout of ACL Credits”, the MGCS Business
Requirement Document’s “Requirement Details” stated that “a
payout of ACL credits” would be “at the rate it was earned (i.e.,
the pay rate in effect on January 1st)” (see page 14, “BR5”).
OPSEU’s Review of the March 2016 ACL Fact Sheet
42. Mr. Zafiriadis will say that he verbally advised Mr. Villeneuve that
the Union had concern(s) with the content of the ACL Fact sheet.
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This conversation occurred via telephone on or around March 11,
2016.
43. On its review, the Union raised the issue that, in its view, all
eligible fixed-term (“FXT”) employees in the Correctional
Bargaining Unit would receive the full 36 hours of ACL credit in
2016 and in 2017. The Union asserted that the 2016 and the
2017 credits should not be pro-rated for FXT employees who
work “irregularly scheduled hours” as the ACL Fact Sheet had set
out.
44. Mr. Villeneuve will say that Mr. Zafiriadis did not raise any Union
concerns regarding the ACL Fact Sheet’s “Eligibility Criteria”, nor
did anyone else.
45. On March 30, 2016, the Employer provided a revised version of
the ACL Fact Sheet to OPSEU for OPSEU’s review and
feedback. The Employer accepted the Union’s assertion and
revised the ACL Fact Sheet to state that only “employees who
work regularly scheduled part-time hours will be pro-rated
based on the ratio of their scheduled weekly hours compared to
full-time hours for their position”. Eligible FXT employees would
receive the full 36 hours of ACL credit even if they worked
“irregularly scheduled” hours.
46. In his covering email to Mr. Zafiriadis, Mr. Villeneuve wrote “[h]ere
is the revised fact sheet as discussed and this version will be
posted. Let me know if you have any questions”.
47. The revised ACL Fact Sheet, under the heading “Eligibility
Criteria”, the ACL Fact Sheet continued to state (pages 1-3):
In order to be eligible to receive ACL credits in 2016,
employees must be assigned to a COR bargaining unit
position on January 1, 2016. Likewise, in order to be eligible
to receive ACL credits in 2017, employees must be assigned
to a COR bargaining unit position on January 1, 2017.
…
Employees who commence work in a COR bargaining
unit position after January 1, 2016 are not entitled to
receive ACL credits in 2016. Likewise, if the employee
commenced work in a COR bargaining unit position
after January 1, 2017, they would be ineligible for 2017
ACL credits.
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48. Under the heading “Administration, Use and Payout of ACL
Credits”, the ACL Fact Sheet continued to state (at page 2):
ACL credits that are not used before March 31st of the
following year will be paid out at the rate of pay the
employee was earning on the day the entitlement went
into effect. For greater certainty:
. Credits provided in 2016 shall be paid out at
the rate the employee was earning on
January 1, 2016; and
. Credits provided in 2017 shall be paid out at
the rate the employee was earning on
January 1, 2017.
49. The ACL Fact Sheet continued to provide a number of “eligibility”
scenarios under the heading “Examples”. The ACL Fact Sheet
stated (at pages 3 and 4):
New Employee in the Correctional Bargaining Unit
Scenario ‘A’:
OPSEU employee commences their work assignment at full-
time hours in a COR bargaining unit position on December
31, 2015.
Eligibility:
The employee would be eligible to receive 36 hours of ACL
credit in 2016 because they are assigned to a COR
bargaining unit position working full-time hours on January 1,
2016.
Scenario ‘B’:
OPSEU employee commences their work assignment in
a COR bargaining unit position on January 2, 2016.
Eligibility:
The employee would be not eligible to receive ACL
credits in 2016 because they were not assigned to COR
bargaining unit position on January 1, 2016.
50. On the same day, Mr. Zafiriadis responded to Mr. Villeneuve,
stating, in part: “Thanks for the email and the revised fact sheet I
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have forwarded it to the team for review. I will let you know if
there are any concerns or questions”.
51. On the same day, Mr. Villeneuve responded to Mr. Zafiriadis via
email. Mr. Villeneuve stated, in part, that “Since the ACL
implementation is April 1 we will be posting this [the final ACL
Fact Sheet] shortly”.
52. OPSEU did not advise the Employer of any further concerns
regarding the ACL Fact Sheet, including the ACL eligibility criteria.
53. On or around March 30, 2016, the ACL Fact Sheet was issued
and posted in final form.
54. On March 30 and 31, 2016, Union and Employer representatives
met at the MSCSC’s Ministry Employee Relations Committee
(“MERC”). The official Minutes of those meetings were signed by
both Ministry and Union representatives.
55. Regarding ACL, the meeting minutes stated (at page 10, Item
#12):
The Corporate Employer is working with the ministry to
implement the ACL/CTO for April 1, 2016 in accordance
with the terms and conditions of the respective
Collective Agreement.
56. The MERC meeting minutes acknowledged the Employer’s
distribution of the ACL Fact Sheet and its stated eligibility
requirements, stating:
Communications with respect to the eligibility and
implementation of the ACL/CTO has been distributed by
the Corporate Employer.
57. The meeting minutes “action item” was stated as follows:
Action: MERC encourages LERCs to meet and discuss
method to implement ACL/CTO time off in conjunction
with the current schedules.
Employee Relation Committee Agreements (Youth
Justice Services and Probation Services)
58. On or about April 12, 2016, the Employer and the Union agreed to
a “Youth Justice Services Division Probation Services Protocol on
the Usage and Payout of Administrative Compensating Leave
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(ACL)” (the “Probation Services Protocol”). The Probation
Services Protocol stated, in part:
Purpose:
In recognition of the Collective Agreement obligations
regarding Administrative Compensating Leave (ACL),
employees’ ability to either be paid out or take time off and
the employer’s ability to ensure operational requirements
are met, the parties agree to the following:
1. ACL credits that are not used during the year following
their issuance and before March 31st of the following year
will be paid out at the rate of pay the eligible employee was
earning on the day the entitlement went into effect.
Specifically:
a. Unused credits allotted in 2016 shall be paid out at
the rate the employee was earning on January 1,
2016, and
b. Unused credits allotted in 2017 shall be paid out at
the rate the employee was earning on January 1,
2017,
c. Used credits are paid at current rate of pay.
59. In entering into the Probation Services Protocol, the Union did not
dispute the Employer’s asserted understanding of the ACL
eligibility criteria: i.e., that Probation Services employees were
only eligible to receive allotments of ACL credits in 2016 if they
were assigned to COR bargaining unit position on January 1,
2016 (or if they were assigned to COR bargaining unit position on
January 1, 2017).
60. On or about May 9, 2016, the Employer and the Union agreed to
a “Youth Justice Services Division (Facilities) Protocol on the
Usage and Payout of Administrative Compensating Leave (ACL)”
(the “YJSD Facilities Protocol”). The YJSD Facilities Protocol is
identical to paragraph 1 (a-c) of the Probation Services Protocol
above.
61. In entering into the YJSD Facilities Protocol, the Union did not
dispute the Employer’s asserted understanding of the ACL
eligibility criteria: that employees in YJSD Facilities were only
eligible to receive allotments of ACL credits in 2016 if they were
assigned to COR bargaining Unit position on January 1, 2016 (or
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if they were assigned to COR bargaining unit position on January
1, 2017).
62. In and around May 2016, three Probation and Parole Officers
working out of the North Bay Office requested to have their ACL
hours paid-out. This request was granted and their ACL hours
were paid-out on or around May 19, 2016. Those Officers were:
Scott McIntyre, Patricia Maiangowl and Tyler Acquino. All three
employees were COR bargaining unit members as of January 1,
2016.
Release of the Burkett Award & Implementing ACL Credits
in Institutional Services
63. On May 26, 2016, Arbitrator Burkett released his final and binding
interest arbitration award (the “Burkett Award”). In the decision,
Arbitrator Burkett noted (at page 4):
It is important to understand the full scope of the terms of
agreement applying to the correctional bargaining unit under
both the central and local agreements. Firstly, the economic
terms are identical to and flow from the central agreement. ...
In addition, the following terms are to have application to the
correctional bargaining unit:
…
Effective January 1, 2016 and January 1, 2017, all full-time
and fixed-term correctional bargaining unit employees to
receive 36 hours of compensating leave (pro rata for part-
time) to be added to existing credits.
…
64. On June 14, 2016, Christina Danylchenko, Assistant Deputy
Minister, Institutional Services, advised all Institutional Services
Staff of the following in a memorandum entitled “Administrative
Compensating Leave and Compensating Time Off”:
Implementation of the most recent collective agreement
includes entitlement to Administrative Compensating
Leave (ACL). All employees (regular and fixed-term)
who were employed in the Correctional Bargaining
Unit on January 1, 2016 will receive thirty-six (36)
hours of ACL for 2016. Additionally, all employees
(regular and fixed-term) who are employed in the
Correctional bargaining unit on January 1, 2017 will
receive another thirty-six (36) hours on January 1,
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2017. Hours will be pro-rated for employees who
work regularly scheduled part-time hours.
As per the negotiated terms, these hours are subject to
pre-approval and will be granted based on operational
need. Each year’s allotment of ACL hours must be used
by March 31 of the following year. If they are not used by
March 31 of the following year (e.g. 2016 ACL credits
must be used by March 31, 2017), then they will be paid
out at the rate of pay that the employee was earning on
January 1 of the year in which the hours were awarded,
in accordance with the collective agreement (e.g.
January 1, 2016 for 2016 ACL hours).
…
Requests to use ACL or CTO hours should be submitted
in accordance with current local processes for requesting
time off, clearly indicating that the request is to use ACL
or CTO hours, as applicable. Please be reminded that
ACL and CTO hours may not be used retroactively to
cover an absence from the workplace; the time must be
pre-approved.
There is no change to your ability to cash out ACL/CTO
hours at any time, upon written request. [Emphasis
added.]
65. On November 18, 2016, the parties signed the Correctional
Bargaining Unit Collective Agreement.
66. Appended to the Collective Agreement, the parties dated the ACL
LOU May 26, 2016 and designated the LOU as “Appendix
COR33”. The LOU was from Mr. Villeneuve to Mr. Zafiriadis. The
LOU stated:
The employer is currently engaged in modernizing
facilities programs and services within the Ministry of
Community Safety and Correctional Services, and the
Ministry of Children and Youth Services. It is recognized
that as the modernization process unfolds, working
conditions, staffing needs and scheduling patterns need
to evolve to match a changing work environment. The
employer values the work of all of its employees and
would like to maintain a highly trained and professional
workforce.
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In recognition of some of the current impacts from a
challenging and changing workplace environment, all full
time and fixed term correctional services bargaining unit
employees shall be granted thirty-six hours (36) of
compensating leave, pro-rata for part time, effective
January 1, 2016, and on January 1, 2017. Compensating
leave that is not used within a calendar year shall be
treated in accordance with article COR 8.6 or article
COR15.5, as applicable.
2016 ACL Grievance Activity
Group Grievances re ACL Implementation
67. In February and early March 2016, a number of group grievances
from the Central East Correctional Centre (“CECC”), Central
North Correctional Centre (“CNCC”), the North Bay Jail and the
Maplehurst Correctional Complex (“MHCC”) / Vanier Centre for
Women (“Vanier”) complained that the Employer had denied the
Grievors the use of ACL credits. For example, the grievance
statement for a group grievance from CECC dated February 16,
2016 (“White et al.”) [53 Grievors] bearing OPSEU Grievance No.
2016-0368-0008 / GSB No. 2015-3083 stated:
I grieve that the Employer violated Article 2, 3, Appendix
B U18 (ACL) and any other article, legislation, act or
policy. The Employer has denied the use of my ACL
credit. The Collective Agreement states that Corrections
Bargaining Unit Employees shall be granted these credits
beginning January 1, 2016.
68. The exact same “grievance statement” is found in the following
pre-Burkett Award (May 26, 2016) grievances:
(a) a group grievance from CNCC (the “Jackel”
Group) [116 Grievors] dated February 28, 2016
bearing OPSEU Grievance No. 2016-0369-0021
/ GSB No. 2016-0380;
(b) a group grievance from the North Bay Jail (the
“Saucier” Group) [39 Grievors] dated March 1,
2016 bearing OPSEU Grievance No. 2016-0616-
0015 / GSB No. 2016-1070;
(c) a group grievance from MHCC / Vanier (the
“Durham” Group) [126 Grievors] dated March 1,
- 19 -
2016 bearing OPSEU Grievance No. 2016-0234-
0094 / GSB No. 2016-0267; and
(d) a group grievance from MHCC / Vanier (the
“Rucko” Group) [132 Grievors] dated March 1,
2016 bearing OPSEU Grievance No. 2016-0234-
0082 / GSB No. 2016-0215.
69. In a subsequent group grievance from the Hamilton-Wentworth
Detention Centre dated May 22, 2016 (“Dorschner et al.”) [116
Grievors] bearing OPSEU Grievance No. 2016-0248-0011, the
Statement of Grievance replicated the Statements set out in
group grievances identified in above, stating:
I grieve that the Employer violated Article 2, 3, Appendix
B U18 (ACL) and any other article, legislation, act or
policy. The Employer has denied the use of my ACL
credit. The Collective Agreement states that Corrections
Bargaining Unit Employees shall be granted these credits
beginning January 1, 2016.
Union Grievance re ACL Implementation
70. In early March 2016, the Corporate Union complained that the
Employer had not implemented “a process in a timely manner for
members to access their ACL credits”. The Union Grievance
dated March 3, 2016 bearing OPSEU Grievance No. 2016-0999-
0029 / GSB No. 2016-0108 stated in full:
The Employer is in violation of the Collective Agreement
by not implementing a process in a timely manner for
members to access their ACL credits. The Collective
Agreement, Letter of Understanding ACL states “all full
time and fixed term correctional services bargaining unit
employees shall be granted thirty-six hours (36) of
compensating leave, pro-rata for part time, effective
January 1, 2016, and on January 1, 2017”. All requests
to access the use of ACL credits have been denied by
the employer
71. In its Union Grievance, the Union did not dispute that COR
bargaining unit employees were only eligible to receive ACL
credits in 2016 if they were assigned to COR bargaining unit
position on January 1, 2016.
Union Grievance re Alleged Employer Obligation to Prorate ACL
- 20 -
72. On or about May 27, 2016, the Corporate Union filed a Union
Grievance bearing OPSEU Grievance No. 2016-0999-0047 / GSB
No. 2016-0736, alleging that the Employer was obligated to
prorate the ACL entitlement for employees who started working
for Institutional Services after January 1, 2016. The OPSEU
Grievance stated:
The Employer is violation of the Collective Agreement
and the ACL Letter of Understanding by not prorating
ACL entitlement for any employee that commenced
employment post January 1st, 2016.
Issues Before the GSB on October 6, 2017
73. On March 22, 2017, the parties met at the GSB. On that date,
Union counsel advised counsel for the Employer that the union
would be arguing that the Employer had contravened the ACL
LOU by not granting thirty-six (36) hours of compensating leave to
each and every COR bargaining Unit employee who commenced
employment between January 2, 2016 and December 31, 2016.
The Union will also be taking the position that each and every
employee assigned to the COR bargaining unit between January
2, 2017 and December 31, 2017 is entitled to 36 hours of
compensating leave under the ACL LOU.
74. The issues to be addressed by the GSB are:
a) Interpretation: Does the ACL LOU require the proration
of ACL credits for any employee assigned to the COR
bargaining unit after January 1, 2016 (i.e., between
January 2, 2016 and December 31, 2016) and to any
employee assigned to the COR bargaining unit between
January 2, 2017 and December 31, 2017)? [Union
Grievance dated May 27, 2016 (GSB No. 2016-0736) at
Tab 22]
(b) Change of Scope: Does the March 2017 claim outlined in
paragraphs 73 above constitute an inappropriate
expansion of the grievances before the Board?
(c) Interpretation: If the Union is not precluded from
asserting the claims raised by Union counsel on March
22, 2017, does the ACL LOU require the Employer to
grant a full 36 hours of ACL credits to any employee
assigned to COR bargaining unit between January 2,
2016 and December 31, 2016 and to any employee
assigned to the COR bargaining unit between January 2,
2017 and December 31, 2017?
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(d) In the alternative, equity: is the Union ultimately
precluded from asserting any of its interpretation claims
on the basis of laches and / or estoppel, even if the GSB
accepted the Union’s interpretation of the ACL LOU?
[5] At the conclusion of the Employer’s presentation, the only comment the Union
made on the Agreed Statement of Fact related to the statements made about the
Protocols referenced in paragraphs 59 and 61. Union counsel indicated that it
was true that the Union did not dispute the eligibility criteria for ACL credits, but
the Union wanted to make clear that it did not express either acceptance or
disagreement on the eligibility criteria.
[6] Paragraph 74 of the Agreed Statement of Fact identifies the issues the parties
wanted to address at the hearing. Before addressing some of these issues, I will
make some comments on the ACL LOU and then identify the positions each
party took on the issues to be addressed.
[7] ACL credits were introduced for the first time in the Collective Agreement for the
Correctional Bargaining Unit (“CBU”) covering the period from January 1, 2015,
to December 31, 2017. The LOU was proposed by the Union near the end of the
negotiation process in November 2015. It provides 36 hours of compensating
leave in 2016 and 36 hours of compensating leave in 2017. It identifies all full-
time and fixed term employees as the two types of CBU employees that are
entitled to receive ACL credits. The LOU also provides that part-time employees
will be entitled to compensating leave on a pro-rata basis. The identification of
full-time employees and fixed term employees as the types of CBU employees
entitled to receive ACL credits means that students or seasonal employees in the
CBU are not entitled to ACL credits. From the Employer’s perspective, the last
sentence in the LOU means that ACL credits that are not used before March 31st
of the following year will be paid out at the rate of pay the employee was earning
on the day the ACL credits were granted. For example, an employee who had
- 22 -
12 ACL credits remaining from 2016 by March 31, 2017, will be paid out the 12
credits at the rate of pay the employee was earning on January 1, 2016.
[8] As I noted at the outset, the central issue in dispute concerns eligibility for ACL
credits. The dispute concerning eligibility is about when an employee must be
employed in the CBU. The Employer takes the position that only employees who
were in the CBU on January 1, 2016, and on January 1, 2017, are entitled to
ACL credits for each of those years. The Employer recognized that entitlement
to a bank of ACL credits for any given year would not be affected if an employee
left the CBU at any time during the relevant year. The Union’s primary claim is
that an employee who is hired into the CBU in 2016, after January 1, 2016, or
hired in 2017, after January 1, 2017, and is otherwise eligible, is entitled to the
full 36 hours of ACL credits for the relevant year. In the alternative, the Union
takes the position that an employee is entitled to receive ACL credits on a
prorated basis if the employee was hired into the CBU at any time after January
1, in either 2016 or 2017.
[9] The other issues listed in paragraph 74 to be addressed are the Employer
arguments that the Union’s primary claim amounts to an improper expansion of
the Union grievance and that the equitable principle of estoppel should be
invoked to preclude the Union from pursuing its interpretations of the ACL LOU in
this proceeding. The Union denies that its primary claim amounts to an
expansion of the Union grievance and it argued that the principle of estoppel is
not applicable in the circumstances of this case.
[10] Counsel made concise submissions on the above issues. In addition to the
definition of “effective” in Black’s Law Dictionary, Union counsel relied on the
following decisions in support of his submissions: Mount Polley Mining Corp and
USW, Local 1-425, 2009 CarswellBC 4002 (Sullivan); Fourth Generation Reality
Corp. v. Ottawa (City), 2005 CarswellOnt 1939 (Ont. CA); Toronto (City) Board of
Education v. Doughty, 1934 CarswellOnt 73 (HCJ); Lanosh-Medad Family Trust
- 23 -
(Trustee of) v. Versatech Industries Inc., 1999 CarswellOnt 3147 (HCJ);
Cartareal Corp. N.V. v. Canada (Minister of Public Works & Government
Services), 2005 CarswellOnt 4982 (HCJ); Blouin Drywall Contractors Ltd. v. CJA,
Local 2486, [1975] O.J. No. 31 (Ont. CA); Re Enbridge Gas Distribution Inc. and
C.E.P., Local 975 (2006), 150 L.A.C. (4th) 225 (Burkett); Re Teamsters Canada,
Local 419 and Tenaquip Ltd. (2002), 112 L.A.C. (4th) 60 (Newman); Re Ontario
(Ministry of Government Services) and OPSEU (Vitorino), 2010 CarswellOnt
11854 (Ont. GSB); and, Re Ridgewood Industries and UFCW, Local 175 (2009),
183 L.A.C. (4th) 23 (Starkman).
[11] Employer counsel referred me to the following decisions during his submissions:
Re Keller Foundations Ltd. and IUOE, Local 870 (2014), 249 L.A.C. (4th) 283
(Wallace); OPSEU (Vitorino et al) and Ministry of Government Services (2010),
GSB No. 2009-1293 (Abramsky); Re Ontario Power Generation and Society of
Energy Professionals, 2012 CarswellOnt 16996 (Surdykowski); Re Ontario
(Management Board Secretariat) and OPSEU, 2004 CarswellOnt 10324
(Petryshen); Re Medis Health & Pharmaceutical Services Ltd. and Teamsters,
Chemical, Energy & Allied Workers, Local 424 (2000), 93 L.A.C. (4th) 118
(Armstrong); Re Fanshawe College and OPSEU (2002), 113 L.A.C. (4th) 328
(Burkett); M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59;
and, Re Conifex Power Limited Partnership and USW, Local 1-2017 (Ketchum)
(2017), 284 L.A.C. (4th) 286 (Peltz).
[12] I will first address the Employer’s submission that the Union’s primary claim
constitutes an improper expansion of the Union grievance and therefore cannot
be pursued in this proceeding. Employer counsel based his submission on the
following circumstances. The wording of the Union grievance indicates that the
issue raised and the only remedy sought related to the prorating of ACL credits
for an employee who commenced employment after January 1, 2016. The
Union’s primary claim was first conveyed to the Employer at a hearing on March
22, 2017, approximately ten months after the filing of the Union grievance dated
- 24 -
May 27, 2016. The new claim seeks entitlement to all available ACL credits for
an employee who is hired into the CBU after January 1st in either 2016 or 2017.
Employer counsel argued that the Union’s primary claim represents a major shift
from what the Union was complaining about in the Union grievance. He
submitted that the Union is advancing an entirely new claim that is well beyond
the scope of the claim in the Union grievance and therefore amounts to an
impermissible change in position that should not be allowed. Counsel relied in
particular on Re Fanshawe College and OPSEU (2002), supra, as an example of
a case where the union’s amended claim was found to be an improper expansion
of the grievance and therefore beyond the authority of the arbitrator.
[13] In arguing that the Union’s primary claim does not constitute an impermissible
expansion of the grievance, Union counsel submitted that the wording of the
Union grievance reflects that its substance concerns entitlement to ACL credits
for an employee hired after January 1, 2016. Counsel noted that the settlement
desired in the Union grievance included any other remedy deemed appropriate.
Counsel submitted that the Union’s primary claim is simply a request for a
different remedy while the Union is still seeking the prorating of ACL credits in the
alternative. He argued that a broad and non-technical reading of the Union
grievance supports the view that the Union is not raising a new dispute about
entitlement to ACL benefits at arbitration, but is simply raising a different legal
argument in support of a different remedy. Counsel argued that the
circumstances in Re Fanshawe College and OPSEU (2002), supra, are
distinguishable from the instant case and therefore is of no assistance.
[14] It is the grievance, of course, that sets out the scope of the dispute and
establishes the subject matter over which an arbitrator has jurisdiction. In
resolving a dispute about whether a union is expanding the grievance to cover a
matter not encompassed by the grievance, the arbitrator must compare the
grievance as written and the remedy requested to the issues raised and the
remedy sought at arbitration. This exercise should focus on determining the real
- 25 -
issues that were raised in the grievance and whether the issues presented at
arbitration amount to an entirely different dispute.
[15] Although I appreciate that the Statement of Grievance and the Settlement
Desired in the Union grievance only refer to prorating ACL credits, I agree with
Union counsel’s submission that the central issue raised by the Union grievance
is whether an employee hired into the CBU after January 1st in 2016 or January
1st in 2017 is entitled to ACL credits. That is the real dispute raised by the Union
grievance. In my view, the Union’s primary claim in effect raises the same
central issue and does not introduce a different dispute at arbitration. The only
difference from each position taken by the Union has to do with the remedy that
would flow if one position was accepted over the other. An indication that the
proration issue set out in the Union grievance and the Union’s primary claim raise
essentially the same legal issue is illustrated by the fact that a determination that
favours the Employer’s interpretation of the ACL LOU would effectively result in
the rejection of both Union positions for essentially the same reasons. Indeed,
Employer counsel essentially referred to the same factors when he made his
submissions with respect to the Union’s primary and alternative claims. I agree
with Union counsel’s submission that the circumstances in Re Fanshawe College
and OPSEU (2002), supra, are distinguishable from the circumstances in the
instant case. The union in Re Fanshawe attempted unsuccessfully to change the
grievance from one about the status of certain work to one about whether certain
individuals should be included in the bargaining unit. The grievance provisions in
the collective agreement in that case required the grievance to contain “the
nature of the grievance, the surrounding circumstances and the remedy sought.”
The Collective Agreement between the parties in this case does not have a
similar provision that applies to a Union grievance. To the extent it is necessary
to decide this issue, I find the Union’s primary claim does not constitute an
expansion of the Union grievance.
- 26 -
[16] I will now address the central issue concerning eligibility as described previously.
There were some matters on which the parties agreed. The first is that the words
used in the ACL LOU are clear and unambiguous. They also agreed that the
Union bears the onus of establishing a violation of the ACL LOU and that an
intention to confer a monetary benefit must be set out in clear language. A
matter on which the parties disagreed was the Employer’s position that the
contra proferentem rule should be applied in this case. This rule of interpretation
essentially provides that the preferred meaning of an agreement should be the
one that works against the interests of the party who provided the wording. The
rule is applied in appropriate circumstances when the terms of an agreement are
ambiguous. Since I agree with position of the parties that the words used in the
ACL LOU are clear and unambiguous, I find that it would be inappropriate to
apply the contra proferentem rule in the instant case.
[17] Union counsel’s submissions on the Union’s primary and alternative claims can
be summarized as follows. The ACL LOU has clear language that confers a
monetary benefit. It is important to adopt a purposive approach when
interpreting the language of the ACL LOU. The stated purpose of granting ACL
credits is to give correctional employees additional time off work with pay in
recognition of how the challenging and changing correctional workplace has an
impact on correctional employees. This impact is present no matter when during
the year an employee enters the CBU so it makes no sense to limit ACL credits
to only correctional employees who are in the bargaining unit on January 1st of
each relevant year.
[18] According to the Union, the purpose and plain language of the ACL LOU
illustrates that all employees are to receive all 36 hours of compensating leave
no matter when they started in the CBU in 2016 or in 2017. The words “all of its
employees” in the first paragraph and the words “all full time and fixed term”
suggest an intention to cover all employees and not just those that were in the
bargaining unit on January 1st. The reference to all employees is not otherwise
- 27 -
specific in contrast to the type of language the parties used in article 53 of the
Collective Agreement dealing with termination payments. The words “shall be
granted” are strong and broad words that suggest the notion of money being
bestowed on employees. The use of the word “effective” as part of the words
“effective January 1, 2016” suggests that the right comes into operation on
January 1st, but that it is not a one day right. The dictionary definition of
“effective” indicates that the word has a go forward connotation which is what the
parties intended for the provision of ACL credits.
[19] In support of the Union’s alternative position that the parties at least intended that
ACL credits be prorated for any employee who starts in the CBU after January 1st
in 2016 or in 2017, the Union relied on the last sentence of the ACL LOU which
refers to COR8.6 and COR15.5. The parties agreed that unused ACL credits
shall be treated in accordance with these articles which deal with how overtime
earned and accumulated during the course of the year will be treated. The fact
that the parties agreed to treat unused ACL credits in the same way that they
treated overtime suggests that the parties recognized that ACL credits
accumulated or accrued over the course of the year, rather than simply being
granted on a one-time basis. This supports the position that an employee
starting in the bargaining unit after January 1st in either 2016 or 2017 is entitled to
ACL credits on a prorated basis.
[20] Employer counsel’s submissions can be summarized as follows. The language
agreed to by the parties in the ACL LOU can only support the position taken by
the Employer. The eligible types of employees are granted 36 hours of
compensating leave on two specific dates that are identified. ACL credits are not
an earned benefit, but are simply provided to otherwise eligible employees who
are in the CBU on the designated dates. The word “effective” is used in relation
to January 1, 2016, but it is necessary to review the ACL LOU as a whole and
consider that with respect to the year 2017 the parties used the words “on
January 1, 2017”. If the parties had intended that the monetary benefit of ACL
- 28 -
credits would be available in whole or in part to employees who were not in the
bargaining unit on January 1, 2016 or on January 1, 2017, the parties would have
used clear language to express such an intention and such language is absent
from the ACL LOU. In effect, the Union is asking the arbitrator to read additional
words into the ACL LOU in order to advance its interpretation. The effect of the
Union’s claims is that the Employer would be obliged to pay either full or prorated
ACL credits for the relevant year to an employee who was hired into the CBU in
either December of 2016 or December of 2017. The language of the ACL LOU
simply does not support such a result.
[21] Specifically on the issue of prorating ACL credits, Employer counsel submitted
that there is nothing in the language of ACL LOU that indicates that the parties
intended the prorating of ACL credits. The fact that the parties specifically
agreed to prorate ACL credits for part-time employees and did not specifically
provide for proration generally for employees who were hired after January 1st in
the relevant year clearly suggests that they did not intend prorating to apply in
such circumstances. As illustrated by article 46.6 of the Collective Agreement
dealing with vacation, the parties know how to express an intention to prorate a
benefit. The reference COR8.6 and COR15.5 does not imply that ACL credits
accumulate like overtime because it is clear that there is a one-time grant of ACL
credits for each relevant year. These provisions were simply used to provide for
an end date.
[22] The principles that govern the interpretation of disputed language in a collective
agreement are well-established. In Re Ontario Power Generation and Society of
Energy Professionals, supra, Arbitrator Surdykowski provides a useful summary
of these principles in the following paragraphs:
17. The fundamental rule of collective agreement interpretation is that
the words used must be given their plain and ordinary meaning
unless it is clear from the structure of the provision read in context
that a different or special meaning is intended, or the plain and
ordinary meaning result would be illegal or absurd. All words
must be given meaning, different words are presumed to have
- 29 -
different meanings, and specific provisions prevail over general
provisions. Both the words that are there and the words that are
not there are significant.
18. Although as a matter of general principle collective agreements
must be interpreted in a manner which preserves the spirit and
intent of the collective agreement, it is the words that the parties
have agreed to use to express their intention which are of primary
importance. The parties to the collective agreement are
presumed to say what they mean and mean what they say.
Allegedly missing words or terms cannot be implied under the
guise of interpretation unless it is absolutely essential to the clear
mutually intended operation of the collective agreement, or to
make the collective agreement consistent with legislation which
the parties cannot contract out of. Although much has been
written about purpose, fairness, internal anomalies, administrative
cost or feasibility, and what “should be”, such considerations only
come into play when the language is truly ambiguous and the
arbitrator must apply established labour relations principles in
order to choose between two or more equally plausible
interpretations. The rights arbitrator’s task is to determine what
the collective agreement provides or requires, not what he or
either party thinks it should say. If the language is sufficiently
clear it must be applied as written regardless of any associated
costs or administrative difficulties, or any apparent fairness of the
effect on either party or the bargaining unit employees. The
parties are entitled to no more or less than what the collective
agreement stipulates, and the wording of the collective agreement
trumps all considerations other than legislation.
[23] After reviewing the facts and considering the submissions of counsel, I am
satisfied that the Employer’s interpretation of the relevant language best captures
the intention of the parties when they agreed to the ACL LOU. The wording in
the ACL LOU relied on by the Union is outweighed by a consideration of the
precise wording in the ACL LOU as a whole. In my view, the plain wording of the
ACL LOU obliges the Employer to grant 36 hours of ACL credits to full-time and
fixed term correctional employees who were in the CBU on January 1, 2016, and
on January 1, 2017. The words used by the parties in the ACL LOU clearly
indicate that the ACL credits are a one-time grant for each year that is provided
to otherwise eligible employees who are in the CBU on the designated dates, as
- 30 -
opposed to a benefit that is earned for working during some portion of the year in
either 2016 or 2017.
[24] As arbitrator Surdykowski indicated in Re Ontario Power Generation and Society
of Energy Professionals, supra, the words that are absent from the written
agreement of the parties can be significant. The subject matter of the ACL LOU
is the granting of a monetary benefit to certain types of correctional employees.
What is absent from the ACL LOU is clear language to indicate that the parties
intended to confer ACL credits to employees who were not in the CBU on
January 1 of 2016 or on January 1 of 2017. It is not possible to conclude from
the existing language in the ACL LOU that the parties intended that an employee
who joined the CBU in late December of 2016 or in late December of 2017 would
be entitled to 36 hours of ACL credits or a prorated share of them for the relevant
year. Although the parties specifically provided that part-time employees will
enjoy ACL credits on a pro-rata basis, there is no wording to indicate that the
parties intended that there will be a prorating of ACL credits for an employee who
is hired into the CBU after January 1st in 2016 or after January 1st in 2017. I
agree that the reference to COR8.6 and COR15.5 does not indicate that the
parties intended ACL credits to be treated in the same way that overtime is
treated. In my view, the parties only referenced these provisions to provide an
end date for the use of ACL credits.
[25] For the foregoing reasons, I find that the Union has not met its onus to establish
a contravention of the ACL LOU based on the claims it made at the hearing.
Given the conclusion I have reached on the interpretation of the ACL LOU, it is
unnecessary to address the estoppel issue. The Union grievance dated May 27,
2016, is hereby dismissed. I will remain seized of the remaining ACL grievances.
Dated at Toronto, Ontario this 17th day of January, 2019.
“Ken Petryshen”
Ken Petryshen, Arbitrator