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HomeMy WebLinkAbout2016-2115.Policy.19-02-20.Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2016-2115 UNION#16-36 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Policy) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Tatiana Wacyk Arbitrator FOR THE UNION Frederick Ho Canadian Union of Public Employees – Local 1750 Counsel FOR THE EMPLOYER Greg Bullen Workplace Safety and Insurance Board Counsel HEARING January 31, 2019 - 2 - Decision ISSUE: [1] The issue in dispute is whether permanent part-time employees accrue vacation credits when they work straight time hours, over and above their normal weekly hours of work. FACTS: Agreed Statement of Facts [2] For the purposes of this grievance, the parties submitted the following Agreed Statement of Facts (“ASF”), which they agreed are true and accurate: 1) The Union filed a grievance on August 29th, 2016 alleging that the Employer was violating the Collective Agreement by not providing vacation credits to permanent part-time employees for any (straight time) hours worked over and above their normal weekly hours of work. 2) The employer provides vacation credits for both permanent part-time and permanent full-time employees. These credits are calculated on an hourly basis. Full-time employees receive the amounts set out in Article 11.02, based on a 7.25 hour workday. Part-time employees receive an amount of credits based on their normal scheduled weekly hours, pro-rated against the full time 36.25 hour week. 3) On occasion some permanent part-time employees work over and above their normal weekly hours of work. For the additional hours worked over and above the weekly hours of a permanent part-time employee, the employer does not provide those employees with additional vacation credits. 4) On occasion some permanent full-time employees work over and above their normal weekly hours of work. For the additional hours worked over and above 36.25 hours, the employer does not provide those employees with additional vacation credits. 5) Permanent full time staff normally work 7.25 hour days. On certain leaves, including unpaid leaves, vacation credits do not accrue. 6) Some permanent part-time staff work 7.25 hour days (but fewer than 5 days per week). Other permanent part-time staff work 5 days per week with regular shifts that are less than 7.25 hours. On certain leaves, including unpaid leaves, vacation credits do not accrue. - 3 - Relevant Provisions of the Collective Agreement [3] The parties referenced the following Articles: ARTICLE 4 SENIORITY 4.01 Accrual of Seniority … (d) Prorating part time (sic) Effective July 20, 1998, part-time and contract employees will accumulate all subsequent seniority on the basis of actual time worked with the understanding that 7.25 hours of straight time worked is equivalent to one day of seniority and 1885 hours worked is equivalent to one year of seniority. [emphasis added] Effective June 30, 2011, employees who submit a pre-paid leave will accumulate seniority on the basis of actual time worked (see Article 25.05(h)). ARTICLE 11 VACATION 11.01 Calculation of Vacations Vacation leave and pay entitlement will be based on the employee's continuous service from their most recent date of hire. When a contract employee becomes permanent, their period of contract employment immediately before becoming permanent will be deemed continuous service for purposes of calculating the rate of vacation entitlement. An employee will not accumulate vacation entitlement after any unpaid absence of sixty (60) consecutive working days. Accumulation will resume upon the employees (sic) return to work. Where the employee returns to work for less than five (5) consecutive working days, the absence will be considered continuous. 11. 02 Vacation Entitlement for Permanent Staff Employees Completed Service Years Accumulation Rate Total Days Per Year Less than 7 years 1 ¼ days/month 15 7 but less than 15 Years 1 2/3 days/month 20 15 but less than 25 Years 2 1/12 days/month 25 25 + years 2 ½ days/month 30 - 4 - 11.04 Vacation Less than Full Day Where the absence is less than a full day, the calculation will be based on quarter hours. … 11.07 Staffing Requirements Maximum staffing requirements for each work unit will be set in accordance with Appendix 8. … For the purpose of determining the number of employees within a work unit and employees who will be solicited for vacation selections, the following will apply: … • Permanent part-time employees are included in the calculation of the size of the work unit, on a pro-rata basis (i.e. An employee working 60% will constitute a 0.6 FTE addition to the work unit size). ARTICLE 25 25.03 Part Time Employment for Permanent Employees … • Part-time employment will consist of a minimum of 14.5 hours per week. • The part-time job will be the same as the full time job performed by the employee, but the work will be pro-rated. • A part-time arrangement could include a job share. • The manager and the employee(s) will agree to a start date. • Part-time arrangements will be for a minimum duration of 6 months. • With thirty working days' written notice, the employee or the manager confirm a return to full-time hours or portion thereof. • Seniority will be prorated based on the percentage of full-time hours. • Benefits cannot be pro-rated. The WSIB will pay a pro-rated premium to reflect the paid hours of work and the employee must pay the balance to continue benefits coverage if they choose to exercise this option. Training Programs for Part-Time Employees Part time employees attending full time formal training programs will be compensated for additional time on a straight time basis, unless they are - 5 - required to work in excess of 7.25 hours per day. The manager must provide three (3) weeks' notice in writing for the training program. When the employee is not provided with 3 weeks' notice of the formal training program they will be compensated for the additional time on a straight-time basis, however, in addition, they will receive a premium of twenty dollars ($20) per day for each day or part of a day, in addition to their normal schedule. Alternatively, where possible, they may elect to defer to attend at a later date when sufficient notice may be provided. Overtime Application for Part Time Employees A part-time employee who agrees to work additional seven and one- quarter (7.25) hour days to a maximum of a 36.25 hour week during the regular workweek Monday through Friday will be compensated at the straight-time rate. Overtime rates apply when: • work is performed in excess of seven and one-quarter (7.25) hours (see Article 7) or on the first regularly scheduled day of the weekend as applicable in accordance with Article 7.09 or • on a second regularly scheduled day off in accordance with Article 7.10. ARGUMENT: Union Position [4] The Union prefaced its argument with a description of how Article 11.02, which governs the accrual of vacation credits for both full and part-time permanent employees, is currently administered. [5] There was no dispute it has been the consistent practice to pro-rate the vacation entitlement of permanent part-time (“part-time”) employees, in accordance with the percentage of a 36.25 Full Time Equivalency (“FTE”) constituted by their normal weekly hours of work. [6] For example, a full-time Case Manager works 7.25 hrs per day, 5 days per week, totalling 36.25 FTE hours. A part-time Case Manager may also work 7.25 hrs per day, but only for 3 days per week. Assuming their completed years of - 6 - service are the same for the purpose of Article 11.02, the part-time Case Manager, working 60% of the FTE hours, earns a 60% (.6) vacation credit. [7] In accordance with Article 11.02, the full-time Case Manager, with less than 7 completed service years, would be entitled to three weeks’ i.e. 15 days’ vacation. The part-time Case Manager would have accrued 9 vacation days, i.e. 60% of 15 vacation days. She too would be entitled to take what constitutes three vacation weeks for her – as she would have only worked 9 days over those three weeks. [8] Similarly, an employee working 4 hours per day Monday – Friday, also has her 20 hour work week pro-rated against the 36.25 FTE, resulting in an FTE of 0.551724. That part-time employee would accrue just over 55% of a full-time permanent employee’s accrued vacation time i.e. 8.27586 days. [9] The Union pointed out the earned fraction of a vacation day is consistent with Article 11.04, which allows for vacation entitlements of less than a full day to be calculated in quarter hours. This is important as it allows employees to come in or leave a bit early to deal with personal errands or family responsibilities. [10] The Union submitted the Employer has been “perfectly reasonable” in administering Article 11.02, with the exception of its failure to include every hour worked in the accrual of vacation credits for permanent part-time employees. [11] The Union’s primary argument is that while not detailed, the language of Article 11 is clear that all hours and days worked must count regarding the calculation of vacation credits. [12] The Union conceded that, as set out in the Agreed Statement of Facts, full-time employees do not receive additional vacation credits for any additional hours they worked over their 36.25 normal weekly hours of work. However, it submitted this is because any employee working more than 36.25 hours is either paid overtime, or accrues the time off, in lieu. As a result, there is no additional entitlement for vacation accrual. - 7 - [13] Accordingly, the Union maintained it is reasonable to consider the Employer’s entire practice regarding the administration of Article 11.02, beyond the treatment of additional time worked by full-time staff over and above their normal 36.25 hour work week. [14] In that respect, the Union argued the general practice is, in fact, to pro-rate all time worked by all employees. [15] Specifically, despite the clear language of Article 11.02, a full-time employee starting her employment half-way through the year, would for that year, receive just 50% of the 15 days of credit set out in that Article. [16] Further, full-time staff, when on an unpaid leave, do not accumulate vacation credits. Accordingly, a full-time employee would not get the vacation entitlement set out in Article 11.02, if that employee took 4 months of unpaid leave, e.g. additional parental leave. Rather, in that year, that employee would receive only 2/3 of her 15 day entitlement. On the other hand, if the employee was away for 4-months less one week, that one week would be included in determining her vacation credit. [17] The Union submitted this demonstrates that vacation entitlement, as set out in Article 11.02, is based on the calculation of hours and days worked. [18] In another example, the Union pointed out that an employee working 3 days per week could bid into a full-time position starting at the beginning of December in a given calendar year. This would result in her working 8 additional days that month (2 additional days per week), when compared to the number of days worked when she was in a part-time position. As a result, that employee would, that year, have a month where her vacation accrual would be higher i.e. 1¼ days, because it would no longer be prorated. - 8 - [19] However, if that employee remained as a part-time employee, but for some reason worked 8 additional days, she would not accrue any additional vacation. [20] Similarly, the Union pointed out that if an employee working 20 hours per week bid into a part-time position requiring 21.75 hours per week, she would receive an increased vacation credit reflecting the increase of 1.75 hours. However, if she remains in her part-time position, normally working 20 hours per week, and for some reason worked an additional 1.75 hours, she would not accrue any additional vacation for that additional time. [21] Accordingly, the Union maintains the language and administration of Article11.02 is clear, and reflects the parties’ intention to consider hours and days worked, as well as not worked, in determining vacation accrual. [22] The Union submits the failure to do so only in instances where part-time employees occasionally work extra hours, is deferential treatment based on employees’ part-time status, and constitutes a violation of the Collective Agreement. [23] In support of its position, the Union relied on the decision of Arbitrator Knopf in Simcoe (County) v. S.E.I.U., Local 1, [2009] O.L.A.A. No. 121. In that case, Arbitrator Knopf had to determine whether the employer’s practice of pro-rating a Uniform Allowance when employees were absent for a period of time, such as in instances of illness, violated the collective agreement. The practice had continued for more than 30 years. [24] Arbitrator Knopf found, at paragraph 12, that the collective agreement was clear that full-time employees are promised a Uniform Allowance of $150.00 if they are required to wear a uniform and there was nothing in the collective agreement that supported the employer's practice of reducing or pro-rating the Uniform Allowance. - 9 - [25] Arbitrator Knopf went on to state at paragraph 12: 12 … Restrictions or reductions to compensation entitlements must be strictly indicated in the Collective Agreement. If no restrictive language is found, it can only be concluded that no reductions were intended; see Federated Co- operatives Ltd. v. Miscellaneous Employees Teamsters, Local 987, supra. … And in paragraph 13: 13 While a consistent practice over a long course of time may aid in the interpretation of a Collective Agreement if assistance is required to resolve an ambiguity, the practice is quite irrelevant if the Collective Agreement language is clear. … [26] Accordingly, the Union submitted that in this instance, the language is clear, and there is no need for past practice to aid interpretation. [27] Finally, I should note the Union conceded the challenged method of calculating vacation for part-time employees has been in place for some time, and while the Employer had undertaken not to bring an estoppel argument, the parties had agreed to a temporal limit on any award should I find one to be appropriate. Employer Position [28] The Employer disagreed the Collective Agreement requires the accrual of vacation credits for extra hours worked by part-time employees, over their normal weekly hours of work. [29] The Employer submitted Article 4.01(d) demonstrates the parties have turned their minds to the issue of what benefits would be pro-rated on the basis of actual hours worked, rather than normal weekly hours of work. [30] Accordingly, while that Article provides for the pro-rating of “seniority” on the basis of actual time worked, the employer pointed out that nothing in Article 4.01(d) suggests this was also to be the case with vacation credits. - 10 - [31] Further, Article 11.07 deals with scheduling vacations in accordance with work unit size e.g. a work unit of 20 employees can have four employees off on vacation. In accordance with that Article, part-time employees constitute a pro- rated component of the work group based on the percentage of an FTE they work e.g. an employee working 60% will constitute a 0.6 FTE. [32] The Employer also submitted that pro-rating part-time employees’ benefits based on the hours they normally work matches the formula utilized in Article 11.02. The Employer maintained the two should be consistent. [33] The Employer also pointed out that, as set out in paragraph 4 of the ASF, full- time employees also do not earn additional vacation credits for hours worked over and above their regular 36.25 hours. [34] Accordingly, the Employer argued both full and part-time permanent employees are treated the same. They are paid for the extra hours they work, but earn no extra vacation credits. [35] The Employer maintained that rather than demonstrating part-time employees are discriminated against, the Union was actually asking that they be treated differently. [36] Finally, the Employer submitted Article 25.03 is the most important provision regarding this issue, as it addresses various aspects of permanent part-time employment. [37] That Article sets out two methods by which part-time employees can work additional hours i.e. by attending a Training Program, or agreeing to work additional hours, up to a maximum of 36.25 hours. [38] In both instances, Article 25.03 indicates they will be compensated at the “straight-time rate” – unless the overtime rate would apply. - 11 - [39] The Employer points out there is no language suggesting they also accrue additional vacation credits for those additional hours. [40] In support of its position, the Employer relied on Lethbridge Regional Hospital and H.S.A.A. Re. 1994 Carswell Alta 1137. That case dealt with the issue of whether the rate of vacation pay for part-time employees should reflect their rate of pay when they earned the vacation, or when they took the vacation. [41] In arriving at its determination, the majority of the panel in Lethbridge Regional Hospital referenced two decisions set out as follows at paragraphs 22 – 23: 22 …Re Foothills Provincial General Hospital & U.N.A., unreported, 24 January 1994 (Ponak), dealt with the calculation of vacation pay for part-time and casual employees. The issue was whether the term "regular earnings", in a similar (but not identical) collective agreement, included a number of premiums (e.g. shift differentials) that nurses routinely earned. An important factor in the Board's decision, counsel argued, was the intention of the parties to treat part-time employees the same as full-time employees (adjusting for different amounts of hours worked). The same basis should be used to calculate vacation pay, a basis that did not include the premiums. 23 The second decision was Re Royal Columbian Hospital and B.C. Nurses Union, 17 February 1989 (Hope). That decision dealt with the issue of vacation entitlement, rather than pay. The Board found that, "In our view it would require clear language to sustain a finding that the parties mutually intended that part-time employees working extra shifts would be entitled to a vacation benefit that exceeds the benefit available to part-time and full-time employees working regular schedules." [42] In Lethbridge Regional Hospital, while the language was somewhat different from the instant case, the majority of the arbitration panel held that the collective agreement treated part-time employees the same as full-time employees, except where it is necessary to pro-rate the benefits received by part-time employees. [43] Consistent with the jurisprudence set out in paragraph 41, above, the majority of the panel found, at paragraph 24, that the collective agreement did not have the required "clear language" to have a different basis for vacation pay for full-time and part-time employees – which would have been required for the grievance to succeed. - 12 - [44] The Employer also relied on Carrier Lumber Ltd. and USW, Local 1-424, 2014 CarswellBC 3100, for the principle that clear language is required if the intention is to deviate from the natural meaning of existing collective agreement language. [45] Finally, the Employer submitted the examples relied on by the Union involve circumstances that differ from those in this instance. Union Response [46] The Union conceded that nothing in Article 11.02 expressly requires additional vacation credits for hours worked over normal weekly hours of work. It pointed out, however, that there is also no language allowing for the pro-rating of vacation credits for permanent part-time employees. [47] Rather, the Union suggested Article 11.01, setting out how vacation credits are to be calculated, was of assistance in determining this issue. Specifically, the Union pointed out the 2nd paragraph is clear that accumulation of credits stops after any unpaid absence of 60 consecutive working days. [48] Accordingly, the Union submitted that if additional hours worked over employees’ regularly scheduled hours were also to be excluded, that too would be set out in Article 11.01. [49] The Union also denied Article 4.01(d), providing for the pro-rating of “seniority” on the basis of actual time worked; and Article 11.07, pro-rating part-time employees on the basis of the percentage of an FTE worked when calculating work unit size were of assistance to the Employer. [50] Rather, the Union submitted they deal with discrete issues that have nothing to do with vacation accrual. - 13 - [51] Specifically, the Union submitted it was “perfectly logical” that Article 11.07 provides that, in determining work unit size, the normal weekly hours of work are used to calculate part-time workers’ FTE. [52] Similarly, the Union submitted the purpose of Article 25.03 is simply to clarify that part-time employees, working over and above their normal weekly hours, to a maximum of 36.25 hours, are to be paid time at the straight-time rate – like everyone else. [53] Finally, while the Union conceded Article 25.03 doesn't refer to additional vacation accrual for those extra hours, it pointed out that it also does not refer to the additional CPP deductions for those hours. ANALYSIS: [54] While there is no dispute Article 11.02 applies to part-time as well as full-time permanent employees, Article 11.02 contains no language allowing or requiring the determination of part-time employees’ vacation accrual in accordance with their normal weekly hours pro-rated as a percentage of an FTE of 36.25 hours. However, the Union takes no issue with this general approach. [55] Similarly, there is nothing in Article 11.07, dealing with work unit size, which expressly states the appropriate measure for determining a part-time employee’s percentage of an FTE is their normal weekly hours, rather than actual hours worked. Again, the Union does not challenge this calculation, and indeed, described it as “perfectly logical”. [56] In this regard, I find the Collective Agreement language referenced by the parties differs from that in Simcoe (County), supra, in that the language in Articles 11.02 and 11.07 is not entirely clear, as neither sets out a formula for pro-rating part- time employees’ vacation accrual or the determination of their percentage of an FTE when determining unit size. - 14 - [57] Accordingly, in this instance, I find the consistent practice of the parties in pro- rating part-time employees’ percentage of an FTE based on their normal weekly hours, as set out above, to be of assistance in determining this matter. [58] What is clear, is that where there is an intended deviation from using a part-time employee’s normal weekly hours to determine an entitlement, the parties have addressed that with express language. This is seen in Article 4.01(d), which states seniority is accumulated on the basis of “actual time worked”, rather than employees’ normal hours of work. [59] Further, Article 25.03, which specifically addresses part-time employees’ entitlements in instances where they work beyond normal hours, makes no reference to the accrual of additional vacation credits. Rather, Article 25.03 provides only that part-time employees will be compensated in those instances at the “straight-time rate” – unless the overtime rate would apply. [60] While it is true that, as pointed out by the Union, there is also no reference to CPP deductions in Article 25.03, arguably these are mandatory statutory requirements and do not require a separate reference. This differs from vacation accrual, which on its face is governed by Article 11.02. [61] Further, I am not persuaded the lack of accrual of extra vacation credits on those occasions where part-time employees work more than their normal weekly hours, constitutes differential treatment. [62] In the first instance, as stated in paragraph 4 of the ASF, permanent full-time employees also do not accrue additional vacation credits on those occasions they work more than their normal weekly hours of work. [63] Nor do I find the examples relied on by the Union demonstrate differential treatment. - 15 - [64] Specifically, the example of an employee moving from part-time to full-time is entirely different from that of a part-time employee occasionally working a few hours over her normally scheduled hours, as any differential treatment results from that employee’s change in status. They are treated differently because they are different. [65] This is also the case with a part-time employee who permanently moves to a position normally working more hours. That employee’s situation has also changed, in that she now normally works a higher percentage of an FTE, which attracts higher vacation accrual. On the other hand, the percentage of an FTE of the part-time employee who occasionally works a few hours over her normal hours does not change. Again, they are treated differently because they are different. [66] Moreover, I am not persuaded the reduction of the express vacation accrual set out in Article 11.02 for employees starting mid-year, or on leave, demonstrates an intention to consider all time worked in determining vacation accrual in all instances. These are also examples of extraordinary circumstances which resulted in a “logical” adjustment downward to the entitlement set out in Article 11.02 to prevent any unjust enrichment. DETERMINATION: [67] Considering the provisions of the Collective Agreement referenced by the parties as a whole, as well as past practice, I find the intent is for part-time employees to accrue vacation credits based on their normal scheduled weekly hours, pro-rated against the FTE of 36.25 hours per week. [68] I find this is consistent with the treatment of full-time employees, in that they also do not accrue additional vacation credits when they occasionally work more hours than their normal weekly hours of work. - 16 - [69] Further, any deviation from that formula is expressly stated, as in Article 4.01(d), which provides that seniority for part-time employees accrues on the basis of “actual time worked”. [70] I conclude, therefore, that in order to find the Collective Agreement provides for the accrual of additional vacation credits by part-time employees for hours worked over and above their normal weekly hours of work, clear language to that effect would be required. [71] I find such clear language is absent in this instance. [72] For all the reasons set out above, the grievance is dismissed. Dated at Toronto, Ontario this 20th day of February, 2019. “Tatiana Wacyk” Tatiana Wacyk, Arbitrator