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HomeMy WebLinkAbout2018-3514.Policy.2019-09-04 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 #2018-3514 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Labourers' International Union of North America - Local 506 (Policy) Union - and – The Crown in Right of Ontario (Metro Toronto Convention Centre Corporation) Employer BEFORE Stephen Raymond Arbitrator FOR THE UNION Alexis Mantello-Clement Labourers' International Union of North America, Local 506 Counsel FOR THE EMPLOYER Clifford Hart Borden Ladner Gervais LLP Counsel HEARING August 28, 2019 - 2 - Decision [1] This is a grievance in respect of the rate of pay for wait staff at the Employer as of January 1, 2019. There is no issue as to jurisdiction. [2] The parties entered into an agreed statement of facts. [3] It reads as follows: AGREED STATEMENT OF FACTS NOTE: The Employer and the Union (the “Parties”) have submitted this Agreed Statement of Facts without prejudice to any argument they may make in regard to the relevance or admissibility of any of the documents noted herein. 1. The Parties are subject to a Collective Agreement with a term of January 1, 2016 to December 31, 2019 (the “Collective Agreement”). [Exhibit A]. 2. The Union filed a Group Grievance against the Employer on January 31, 2019 alleging that the Employer violated Article 3 and Schedule B and/or any other relevant Articles / Schedules that may apply, by not increasing the hourly rates on January 1, 2019 for all members employed in the Banquet Department (the “Grievance”). [Exhibit B]. 3. The Grievance relates to Waitstaff within the Banquets Department. 4. The previous Collective Agreement between the Parties was effective from January 1, 2013 to December 31, 2015 (the “Previous Collective Agreement”). 5. Schedule B – Rates and Classifications of the Previous Collective Agreement included the Rate Schedule for all classifications [Exhibit C]. The wage rates for Waitstaff in the Banquets Department were as follows: - January 1, 2013 – $11.64 - January 1, 2014 – $11.88 - January 1, 2015 – $12.17 6. Following the expiration of the Previous Collective Agreement, the Parties engaged in collective bargaining. On or about June 22, 2016, the Parties entered into a Memorandum of Settlement (“MOS”) [Exhibit D], the concluding paragraph of which provided, in part, as follows: “Unless otherwise specified, all items will be effective upon ratification, subject to ratification by the Principals.” 7. Among other things, the Parties negotiated monetary wage increases. As set out in Exhibit D, the MOS provided, inter alia, at page 8: - 3 - Schedule B – Rate and Classification Amend Article B.01 Rate Schedule General Wage Increases - January 1, 2016 – 1.9% - January 1, 2017 – 2.3% - January 1, 2018 – 2.5% - January 1, 2019 – 2.9% 8. The MOS was ratified by the bargaining unit and by the Principals of both the Union and the Employer. 9. The General Wage Increases found in the MOS were converted from percentages into dollar amounts in the executed Collective Agreement. The full Rate Schedule is at pages 63 and 64 of the Collective Agreement. 10. The Collective Agreement Rate Schedule for Waitstaff is: Department Job Class Jan 1 2016 Jan 1 2017 Jan 1 2018 Jan 1 2019 Banquets Waitstaff 12.40 12.69 13.01 13.39 11. In addition to an hourly wage rate, Waitstaff receive gratuities, pursuant to Schedule F – Banquets, Section B – Gratuity Distribution (pages 84 – 86 of the Collective Agreement). 12. The minimum wage in Ontario was increased from $11.60 per hour to $14.00 per hour, effective January 1, 2018, pursuant to the amendments to the Employment Standards Act, 2000 (Bill 148). Minimum wage remains at $14.00 per hour in the Province of Ontario. 13. The only Job Class under Schedule B of the Collective Agreement in which the wage rate was lower than the legislated minimum wage increase was the Waitstaff classification, as indicated in paragraph 10 above, and at page 64 of the Collective Agreement. 14. On January 1, 2018, the wage rate for Waitstaff employees was increased to $14.00, in accordance with the Employment Standards Act, instead of the negotiated Wage Rate of $13.01. 15. On January 1, 2019, the Employer did not increase the Waitstaff classification wage rate any further, and it remained at $14.00 per hour. 16. It is the Union’s position that the Waitstaff classification wage rate should have increased by 2.9% on January 1, 2019, from $14.00 per hour to $14.41 per hour, based on, among other things, the terms of the MOS. - 4 - 17. It is the Employer’s position that the Waitstaff classification wage rate should remain at $14.00 per hour, based on, among other things, the terms of the executed Collective Agreement. 18. The Parties agree that the Arbitrator has jurisdiction to hear the Grievance. [4] The issue before me is the rate of pay of wait staff effective January 1, 2019. The Union submits that the wait staff rate of pay should be $ 14.41. The Employer submits that the wait staff rate of pay should be $ 14.00. [5] As is set out in the Agreed Statement of Facts, the parties entered into a memorandum of settlement on June 22, 2016 renewing their collective agreement for a four-year term from January 1, 2016 to December 31, 2019. It provided, among other things, for a general wage increase as follows: Effective January 1, 2016 – 1.9% Effective January 1, 2017 – 2.3% Effective January 1, 2018 – 2.5% Effective January 1, 2019 – 2.9% [6] The parties prepared a new collective agreement. Rather than just setting out the general wage increase, the collective agreement provided the rates of pay for each classification in the bargaining unit. [7] In respect of the wait staff, the rates of pay were as follows: Effective January 1, 2016 - $ 12.40 Effective January 1, 2017 - $ 12.69 Effective January 1, 2018 - $ 13.01 Effective January 1, 2019 - $ 13.39 [8] At the time that the collective agreement was ratified, the minimum wage was $ 11.25 per hour. It increased to $ 11.40 in October, 2016. [9] The provincial government introduced a new minimum wage effective January 1, 2018 of $ 14.00. Accordingly, the Employer paid the employees in the wait staff classification $ 14.00 as of January 1, 2018. The wait staff classification is the only classification in the bargaining unit that had an hourly wage rate under the new minimum wage. [10] It should be noted that the employees in the wait staff classification also earn substantial gratuities that are paid to them by the Employer. The Employer asserted at the hearing that the average annual earnings for the wait staff was over $ 89,000 per year. The Union did not contradict that assertion. - 5 - [11] The issue before me is whether to apply the negotiated general wage increase of 2.9% to the new rate of $ 14.00 or whether to maintain the rate at $ 14.00. For the reasons that follow, I direct that the wage rate for the wait staff be $ 14.00 effective January 1, 2019. [12] The Union asserted that I should give significant weight to the bargain that it reached and is outlined in the memorandum of settlement. The clear intention of the parties was to provide an across the board general wage increase of 2.9% on January 1, 2019. The wait staff did not get the wage increase that was negotiated for them. Historically, the wage rate for the wait staff was well in excess of the minimum wage and it should continue to be so. [13] The Union relied on the following jurisprudence: Red Oak Retirement Residence (Sienna) and CUPE Local 5102-00 2018 CarswellOnt 7617, 135 C.L.A.S. 231; Royal Place Retirement Residence (Sienna) and CUPE Local 5102-00 2018 CarswellOnt 20835 C.L.A.S. 138; Chartwell Lakeshore Retirement Residence 2018 CarswellOnt 23356, 140 C.L.A.S. 64; Ontario Power Generation Inc. v. Power Workers’ Union 2005 CarswellOnt 2767, 81 C.L.A.S. 210; Ontario Power Generation and The Society of Energy Professionals 2011 CarswellOnt 16471, 105 C.L.A.S. 154; Sattva Capital Corp. v. Creston Moly Corp. 2014 SCC 53, 2014 CSC 53; Loblaws Supermarkets Limited and IFCW Local 1006A 2019 CarswellOnt 8458, 140 C.L.A.S. 90. [14] The Employer asserted that the only thing I should consider is the wage rates in the collective agreement. But for the increase in the minimum wage, the wait staff would have been paid $ 13.01 per hour effective January 1, 2018. Instead, the wait staff were paid $ 14.00 per hour. But for the increase in the minimum wage, the wait staff would have been paid $ 13.39 per hour effective January 1, 2019. Instead, it is appropriate that the wait staff be paid $ 14.00 per hour. The January 1, 2019 hourly rate of $ 14.00 per hour is well in excess of the hourly rate negotiated by the Union for January 1, 2019 of $ 13.39 per hour. [15] Further, the Employer states that I cannot look at the memorandum of settlement and the across the board wage increase that is contained therein. Once the collective agreement is signed, the memorandum of settlement has no further force or effect. Only if there was something in the collective agreement that was ambiguous might it be appropriate to consider the memorandum of settlement. There is nothing ambiguous in the collective agreement about the rate of pay for the wait staff. [16] The Employer relied on the following jurisprudence: Re Bakery and Confectionery Workers’ International Union, Local 322 and Canada Bread Co. Ltd. 1970 CarswellOnt 980, 22 L.A.C. 98; Re Ontario Liquor Board Employees’ Union and the Crown in Right of Ontario (LCBO) 1981 CarswellOnt 2018, 29 L.A.C. (2nd) 289; Re Venturetrans Manufacturing Inc. and UAW, Local 1837 1985 CarswellOnt 2656, 18 L.A.C. (3rd) 215; The College Employer Council for the Colleges of Applied Arts and Technology and Ontario Public Service Employees’ - 6 - Union 2017 CarswellOnt 19797; Movenpick Restaurant Limited and Hotel Employees Union, Local 75 1993 CarswellOnt 6021; and Dresden International and Sheet Metal Workers International Association, Local 540 2018 CarswellOnt 6878, 290 L.A.C. (4th) 447. [17] The Employer took the position that much of the jurisprudence relied upon by the Union was of little relevance. The Union relied substantially on interest arbitration decisions in which boards of arbitration are required to set the terms and conditions of employment. In response to the most recent increase in the minimum wage, interest boards have had to address what to do with rates of pay that fall below the minimum wage and whether to simply raise them to the minimum wage or to also provide a general wage adjustment in addition to the minimum wage increase. That is a different question than the one before me which is having set the terms of conditions themselves, what is the appropriate rate of pay having regard to the operation of the minimum wage increase? [18] In coming to my conclusion, I have preferred the argument of the Employer that in determining the rate of pay for the wait staff, I should limit myself to what is contained in the ratified collective agreement. I cannot look to the memorandum of settlement for assistance. Where, as here, there is a conflict between the collective agreement and the memorandum of settlement, I am compelled to prefer the collective agreement without regard to what might be most fair, most appropriate or best reflect the intentions of the parties. The collective agreement contains the exact hourly rate of pay for the wait staff. By operation of the minimum wage law, those rates of pay which are below $ 14.00 per hour are raised to $ 14.00 per hour. There is no reference in the collective agreement to the across the board general wage increase of 2.9%. It would be outside my jurisdiction to award it. Dated at Toronto, Ontario this 4th day of September, 2019. “Stephen Raymond” Stephen Raymond, Arbitrator